MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 27 June 2002
         DOCKET NUMBER: AR2002067767

         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. Paul A. Petty		Analyst

The following members, a quorum, were present:

Ms. Irene N. Wheelwright		Chairperson
Mr. Richard T. Dunbar		Member
Ms. Kathleen A. Newman		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: In effect, that he be reconsidered for promotion to major (MAJ) in the United States Army Reserve (USAR) and that he be reinstated in the USAR to complete 20 years qualifying for retired pay at age 60.

APPLICANT STATES: In effect, that he was twice non-select for promotion to MAJ in the USAR and was consequently discharged from the USAR. He was non-select due to not being educationally qualified in civilian or military education. He states that the records did not show that he had a Bachelor of Science in Business Administration degree awarded by the University of South Carolina on 13 August 1983. He provides a copy of his college transcript. He states that he completed phase I of the Infantry Officer Advanced Course by correspondence on 8 August 1995. He applied for phase II three times since 1998 but was denied enrollment because his records did not show his completion of phase I. He provides a copy of the phase I completion notification. He states that he was not notified of the pending promotion boards so that he could review his records. Notification of the board results were mailed to incorrect addresses so he did not receive them in time to take corrective action. He had notified the USAR of his correct address since 1994. When he received notification of his options as a consequence of non-selection, he did not make an election but he did appeal his non-selection.

He states that he had been in the Individual Ready Reserve (IRR) from his commission as a captain (CPT) in the USAR in 1994 until 2000. In 2001, he was recruited by 81^st Regional Support Command (USAR), Birmingham, Alabama, for mobilization and active duty as a USAR officer in support of contingency operations. He was assured that his inactive Reserve (IRR) time would not be an issue in returning to the active Reserve. He left his civilian employment and started his 12 month active duty tour on 28 September 2001 and was then discharged on 1 January 2002 due to non-selection for promotion. This has been very traumatic for him and his family.

The applicant states that he has 14 or 15 years accredited for retirement. He enlisted in the United States Marine Corps Reserve (USMCR) in 1978 and received a regular commission in the Marines after completing Navy Reserve Officer Training Corps (NROTC) in 1983. He served on active duty until 1989. Between 1989 and 1993, he served in the active and inactive USMCR. He was activated for Desert Shield and Desert Storm in 1990-1991. In 1994, he did an inter-service transfer and was commissioned as a CPT in the USAR. He provides a copy of a service computation prepared on 1 January 2002, which shows that he has 9 years, 7 months, and 23 days active federal service and
9 years, 3 months, and 25 days inactive service for a total of 18 years,
11 months, and 18 days total service for basic pay purposes (not retirement purposes). He would like to stay in the active Reserve and complete, as a minimum, 20 years service to qualify for retirement.

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

Based on a DD Form 214 MC (Report of Separation from Active Duty) for the period ending 3 February 1979, he enlisted in the USMCR on or about
1 March 1978, and served on initial active duty for training from 18 September 1978 through 3 February 1979. In about 1992, the applicant stated on his application for a USAR commission, that he served as an enlisted member in the USMCR until 31 August 1981; that he was commissioned as a USMCR officer from the NROTC at the University of South Carolina on or about 12 July 1983; attended a Marine Corps Officer Basic course on active duty from July 1983 through April 1984; that he served on active duty as an officer until 26 July 1989, however no DD Form 214 is provided to verify this period of service; and that he served as a CPT in the USMCR from 1 February 1990 through 30 June 1991. A DD Form 214 for the period ending 8 May 1991, shows that he was a USMCR CPT on active duty from 25 November 1990 through 8 May 1991, participating in Operation Desert Shield/Desert Storm. This DD Form 214 shows that prior to that 5 month and 14 day period of active federal service, he had 8 years,
11 months, and 5 days prior active duty. An honorable discharge certificate shows that he was honorably discharged from the USMC as a CPT on
31 October 1992.

On 31 January 1994, the United States Total Army Personnel Command (PERSCOM) published a memorandum appointing the applicant as an Infantry CPT in the USAR. The applicant signed his oath of office on 11 April 1994. On
8 May 1994, PERSCOM issued orders assigning the applicant to the USAR Control Group (Reinforcement – IRR) effective 11 April 1994. His date of rank for CPT USAR was established as 11 April 1994.

The applicant's retirement point statement for the 7 year period of 11 April 1994 through 10 April 2001, shows only 15 membership points per year and no year qualifying for retirement eligibility. For the period 11 April 2001 through
1 January 2002, the retirement point statement shows 26 retirement points for unit drills, 3 retirement points for extension courses, and 109 retirement points for active duty. This 8 month period does qualify for retirement eligibility.

The applicant was considered for promotion to MAJ by the Reserve Component Mandatory Promotion Selection Boards in 2000 and 2001 and not selected for promotion due to not being educationally qualified in civilian or military education. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) states, in pertinent part, that education requirements for promotion eligibility for MAJ are a bachelor degree and completion of an officer advanced course prior to the convening date of the promotion board. The record does not show that the applicant completed an officer advanced course. The automated personnel data does not show that the applicant has a bachelor degree.
On 26 July 2001, PERSCOM published a memorandum to the applicant informing him that he had been twice non-selected for promotion to MAJ and that he would be discharged on 1 January 2002, unless he was eligible for transfer to the Retired Reserve. The memorandum was addressed to the applicant at an address in Georgia.

On 1 August 2001, the U. S. Army Reserve Personnel Command (AR-PERSCOM) published a memorandum through the 81^st Regional Support Command notifying the applicant of his two-time nonselection and requirement for discharge. The applicant was given options, if he qualified, to request retention for 2-3 years to complete 20 qualifying years for retirement, transfer to the Retired Reserve, or discharge. There is no record that he designated an option.

On 28 September 2001, the applicant was ordered to active duty from his home in Georgia by the 81^st Regional Support Command. His was ordered to report to Detachment 1, Forces Command (FORSCOM), Fort McPherson, Georgia, for mobilization support of the contingency operation "Noble Eagle." The period of service was for an initial 12 months that might be extended for up to an additional
12 months.

On 16 October 2001, AR-PERSCOM published orders honorably discharging the applicant from the USAR effective 1 January 2002. On 1 January 2002, he was discharged from active duty and the USAR at Fort McPherson, Georgia.

In response to the applicant's appeal of his non-selection for promotion, PERSCOM Special Actions Branch of the Office of Promotions, Reserve Components, published a letter, dated 15 January 2002, asking the applicant to furnish documentation of his civilian and military education and copies of all Officer Evaluation Reports (OERs) reflecting senior rater profiles. There is no record of the applicant responding by providing these documents to that office. His record does contain USMC Officer Fitness Reports but they do not show senior rater profiles. There are no Army OERs in the record.

Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) provides for the assignment, transfer, and separation of USAR personnel. Paragraph 7-4 b states that an officer who twice fails selection for promotion to MAJ will be discharged unless eligible for and requests transfer to the Retired Reserve. Paragraph 7-12 b states that officers who have over 18 years of qualifying service for retirement will be retained for up to 3 additional years in order to attain 20 years, and officers who have over 19 years of qualifying service for retirement will be retained for up to 2 additional years in order to attain
20 years qualifying for retired pay at age 60.


Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) provides the policy on nonregular service qualifying for retired pay at age 60. It states, in pertinent part, that to be eligible for retired pay at age 60, an individual must have completed a minimum of 20 years of qualifying service and the last 8 years must have been served in a Reserve Component. Qualifying service are years in which the soldier has earned at least 50 retirement points. Fifteen points are earned each year for Reserve membership. Additional points must be earned by participation in Reserve training, active duty, or by completing correspondence courses.

Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) prescribes the policies and procedures for promotion of Reserve officers. The regulation states, in pertinent part, that a CPT will be considered for mandatory promotion to MAJ the first time prior to completing 7 years maximum time in grade (MTIG) as a CPT so that if selected, the CPT can be promoted to MAJ at the MTIG.

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

1. It is accepted that the applicant was educationally qualified for promotion with respect to civilian education in that he did have a bachelor degree awarded in 1983. It does appear that the records reviewed by the promotion board did not correctly show this information. However, the applicant was not educationally qualified for promotion with respect to military education in that he had not completed an officer advanced course. The applicant did complete phase I of the Infantry Officer Advanced Course in 1995. The applicant had ample time to present this credential, obtain enrollment in the remaining phases of the course, and complete the course prior to being considered for promotion by the
2000 Reserve Component Mandatory Promotion Selection Board. To correct
the record to show the applicant's bachelor degree would provide no effective relief since he would still not be educationally eligible for promotion to MAJ due to lack of a completed officer advanced course and would therefore not be eligible for promotion reconsideration.

2. The applicant does not have 18 or more years of service qualified for retirement at age 60 and so is not eligible for retention to 20 years to so qualify under the provision of AR 140-10. The record shows that he has 9 years,
4 months, and 19 days active service which qualify for retired pay at age 60. Of the additional inactive service time listed, 9 years, 3 months, and 25 days, at least the last 7 years do not qualify for retired pay at age 60, with the required



50 retirement points per year, since the applicant has only 15 retirement points per year. Retirement point credit from the UCMCR is not in the record. In summary, the applicant has less than 12 years that may qualify for retired pay at age 60 and is therefore not retainable under these provisions.

3. The 81^st Regional Support Command did not mislead the applicant when that command recruited the applicant from the IRR for a tour of active duty. There were not and are not any problems created by such a transfer from inactive duty to active duty. The applicant's problems arose over promotion eligibility and discharge due to two-time non-selection for promotion. An officer is responsible for knowing when he will be considered for promotion and what the requirements are for promotion eligibility according to the regulation. An officer is also responsible for ensuring that his official personnel management files are correct and up to date, and that AR-PERSCOM has his correct and current address. The applicant was correctly and justly discharged as a result of two-time
non-selection for mandatory promotion to MAJ. It is unfortunate that the applicant experienced this discharge after leaving civilian employment for an active duty tour. The hardship that this circumstance placed on the applicant and his family is unfortunate but is not unfair or unjust.

4. The applicant's DOR for CPT USAR was 11 April 1994. His MTIG for mandatory promotion to MAJ would be 7 years MTIG as a CPT or on 10 April 2001. According to regulation, he was considered by the 2000 Reserve Component Mandatory Promotion Selection Board so that if selected and found eligible and qualified, he could have been promoted at his MTIG. He was not selected due to not being educationally qualified. He was again properly considered by 2001 Reserve Component Mandatory Promotion Selection Board but not selected due to not being educationally qualified. Notification of non-selection was sent to the address on record at AR-PERSCOM for the applicant. Failure of the applicant to receive these notifications does not constitute an error or injustice that would invalidate the non-selection by the promotion boards.

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

__iw___ __rd____ ___kn_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002067767
SUFFIX
RECON
DATE BOARDED	20020627
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	20020101
DISCHARGE AUTHORITY	AR 600-8-24
DISCHARGE REASON	General Reasons
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.03 - Reinstatement
2.
3.
4.
5.
6.