MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 29 AUGUST 2002
         DOCKET NUMBER: AR2002067385

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Ms. Margaret K. Patterson		Chairperson
Mr. Christopher J. Prosser		Member
Mr. Harry B. Oberg		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That his promotion dates be adjusted in accordance with the time in grade requirements of officers on the active duty list and that he receive back pay and allowances accordingly.

APPLICANT STATES: That in 1991 Title 10 USC stated that officers ordered to active duty and accessed into the active duty end strength would spend one year on active duty and then be accessed on the active duty list (ADL). He should have been accessed on the ADL on 4 February 1992, and should have been considered for promotion with officers on the ADL in his competitive category. Instead, he was promoted under the Reserve promotion system.

EVIDENCE OF RECORD: The applicant's military records show:

The applicant was appointed a second lieutenant in the Army National Guard on 1 November 1989. On 1 November 1990 he was discharged from the Utah Army National Guard and transferred to the Army Reserve Control Group (Reinforcement) at St. Louis.

On 1 February 1991 the applicant, then a second lieutenant, was ordered to active duty for three years with a reporting date of 4 February 1991 to the Selective Service, Region IV, at Dallas, Texas. His orders specified that he was assigned to the active duty accession detachment effective on 1 February 1991, stated that he would be ordered to active duty in his current Reserve grade, and that he would not be placed on the ADL, but remain under the Reserve Component promotion system. He was required to be accounted for in active duty strength authorization, but was excluded from active component officer strength-in-grade limitations. Authority for ordering him to active duty was 10 USC 672(d).

His original 1991 order was amended six times by the Total Army Personnel Command in St. Louis to eventually extend his active duty commitment to 12 years. He remains assigned to the Selective Service.

He was promoted to first lieutenant under the provisions of Army Regulation 135-155 by the Army Reserve Personnel Command on 31 October 1992. He was promoted to Captain by that same command on 30 October 1996.

On 31 August 2001 the applicant applied for active duty for an indefinite period of time.

On 8 December 2001 the Total Army Personnel Command (PERSCOM) Reserve Component Liaison Officer advised the Chief of the PERSCOM Accessions Branch that the applicant was not qualified for call to active duty as a captain. He stated that the applicant was ordered to active duty under the extended active duty program, and that in 1991, 10 USC stated that officers ordered to active duty and accessed into the active Army end strength would spend one year on active duty, then be accessed on the ADL. Accordingly, he should have been accessed on the ADL on 4 February 1992, and considered for promotion in the Army Competitive Category (ACC) thereafter; however, he was not. He was considered for first lieutenant and captain by the Reserve Component Army Promotion List Board – which could invalidate both his promotion to first lieutenant and captain. The liaison officer recommended that the applicant apply to this Board, and if successful, reapply for the limited call to active duty program.

On 14 December 2001 the Chief of the PERSCOM Accessions Branch returned his application for active duty because of issues concerning his Reserve of the Army grade. He stated that it was discovered that his promotion to lieutenant and captain by the Reserve Component Boards did not meet the requirements of the law in effect at that time, and were therefore improper. He was further informed that the Accessions Branch could not process his application until his proper Reserve of the Army grade was established.

The Chief, of the PERSCOM Promotion Branch in St. Louis, indicated to the applicant and an individual in the Selective Service, that the applicant was an Individual Ready Reserve (IRR) member and was properly promoted.

The Reserve Component Liaison Officer at PERSCOM forwarded a matrix to a member of this agency showing the ADL status of commissioned officers serving on extended active duty (EAD) and a copy of 10 USC 641. On 31 July 2002 a member of this agency queried PERSCOM concerning the applicant’s promotion status, and was advised that based on the applicant’s 1991 orders he was promoted correctly, and that there was now no need for this Board to be involved – that the applicant could resubmit his request for recall to active duty for processing. On 6 August 2002 the above mentioned documents were forwarded to the applicant for his information and possible rebuttal.

In his 14 August 2002 response, the applicant stated that given the fact that no evidence had been presented to negate his claim, in that the documentation merely showed that he was not on the ADL, he allowed that his promotion dates should be adjusted and that he should have received the same opportunity for promotion in terms of time in grade requirements that anyone else received who served on active duty during the same period of time as himself. He attached a copy of an article concerning ROPMA (Reserve Officer Personnel Management Act) as it related to Reserve promotions, and stated that the intent of the law was to align the Reserve promotion system with the active duty promotion system, which promotes officers on the ADL. Since he is an active duty soldier, albeit in the Army Reserve, his promotion dates should be commensurate with other soldiers who were on active duty.

The applicant was ordered to active duty under the provisions 10 USC 672 as noted above. That section makes reference to chapter 1209 beginning with section 12301. Section 12301(d) authorizes the Secretary of the Army to order a member of a Reserve Component to active duty.

Section 12310 concerns the organization and administration of the Reserve Components. Section 12310(a) states that a Reserve soldier ordered to active duty under section 12301(d) in connection with organizing, administering, recruiting, instructing, or training the Reserve Components shall be ordered in his Reserve grade. While so serving he continues to be eligible for promotion as a Reserve, if he is otherwise qualified.

10 USC Chapter 36 pertains to promotion, separation, and involuntary retirement of officers on the ADL. Section 641 states that officers on active duty under section 12301(d) of Title 10 in connection with organizing, administering, recruiting, instructing, or training the Reserve Components are not subject to Chapter 36.

Army Regulation 600-8-29 provides for promotion of Army officers on the ADL. Selection for promotion to the grades of major general through captain are in accordance with 10 USC 611 through 626 and 628 [Chapter 36]. The ADL is defined as order of seniority lists of commissioned officers on active duty in the Army other than Reserve officers on active duty under 10 USC 672(d) in connection with organizing, administering, recruiting, instructing, or training the Reserve Components.

Army Regulation 135-155, then in effect, provides for promotion of commissioned officers of the Army Reserve, and states in pertinent part, that USAR commissioned officers on active duty promoted on or after 15 September 1981 are promoted in the Reserve of the Army. The Total Army Personnel Command at St. Louis has the authority to issue Reserve of the Army promotion memorandums to Individual Ready Reserve officers.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1. The applicant’s orders specifically state that he would not be placed on the active duty list when he was ordered to active duty in 1991, and also state that he would remain on the Reserve Component promotion system. He was promoted to first lieutenant and captain by the Total Army Personnel Command at St. Louis

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in accordance with the provisions Army Regulation 135-155. His promotion under the Reserve Component promotion system was and is valid. He is not now nor has he even been on the ADL. Consequently, he could not be promoted or considered for promotion with those officers on active duty who were on the ADL.

2. There is no evidence, nor has the applicant provided any, to show that the law in effect in 1991, specifically 10 USC, provides for an officer ordered to active duty to be accessed on the ADL after one year of active duty.

3. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy that requirement.

5. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__MKP__ __CJP __ __HBO _ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002067385
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020829
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	131.00
2.
3.
4.
5.
6.