MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 18 July 2002
         DOCKET NUMBER: AR2002069849

         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
Ms. Stephanie Thompkins		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. Stanley Kelley		Member
Mr. John P. Infante		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: Back pay from 30 December 1997 to 1 August 2000.

APPLICANT STATES: That he was placed before a standby board in January 2000 for promotion to lieutenant colonel. His promotion orders were effective 2 August 2000, but his time in grade was determined to be 30 December 1997. He also states that he effectively had to retire from the service based on being passed over for promotion in August 2000. Had he been promoted during his first look in 1996, he would not have retired and could have remained active in his unit. He submits copies of his promotion orders for lieutenant colonel and his chronological statement of retirement points in support of his request.

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

He was commissioned in the Regular Army as a second lieutenant effective 2 May 1980.

He was promoted to first lieutenant effective 28 November 1981 and to captain effective 1 January 1984.

He was honorably discharged for failure of selection for permanent promotion to major on 1 August 1990.

He was promoted to major in the Reserve effective 5 February 1993, with a date of rank of 31 December 1990.

Based on the required 7 years time in grade, his promotion eligibility date (PED) for lieutenant colonel was 30 December 1997.

He was considered and not selected for promotion to lieutenant colonel by the 1996 Reserve Components Selection Board (RCSB), which convened from 29 May through 5 June 1996. The Secretary of the Army approved the board results on 7 October 1996.

He was considered and not selected for promotion to lieutenant colonel by the 1997 RCSB.

On 6 February 1998, he applied to this Board requesting promotion reconsideration to lieutenant colonel.

Based on the Board’s recommendation, he was considered and recommended for promotion to lieutenant colonel under 1996 criteria by a special selection board (SSB) that adjourned on 28 January 2000.

On 25 May 2000, this Board directed that the applicant be promoted to lieutenant colonel on his date of eligibility thereof, that his discharge be voided with no force or effect and that his now-voided discharge be expunged from his records.

He was separated from the Reserve for non-selection for selective retention effective 1 July 2000. He was transferred to the USAR Retired Reserve.

On 16 May 2001, the Office of Promotions, Reserve Components, Total Army Personnel Command advised the Commander, Headquarters, 75^th Division, Houston, Texas, that the applicant had been recommended for promotion to lieutenant colonel under 1996 criteria by an SSB and recommended that orders dated 2 August 2000, placing the applicant in a retired status, be revoked.

On 23 August 2001, Headquarters, 75^th Division revoked the applicant’s separation from the Retired Reserve and transferred him to the Individual Ready Reserve (IRR).

A promotion memorandum dated 19 September 2001, was issued to him showing his promotion effective date for lieutenant colonel as 2 August 2000, the date of his transfer to the USAR, with a date of rank as 30 December 1997.

His records do not show he was assigned to a lieutenant colonel position as of his promotion eligibility date.

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers. This regulation specifies that officers selected by an SSB may have a promotion eligibility date (date of rank) that is prior to the adjourning date of the board and officers selected by a SSB are eligible for the same date of rank that they would have received by the original board in which the error occurred. The officer’s effective date would be the adjourning date of the SSB criteria. The regulation also specifies that the effective date is the date the officer is eligible for pay and allowances in the higher grade. An officer is promoted after selection if all qualifications for promotion are met, i.e., be in an active Reserve status, completed the service requirements as appropriate, medically qualified, undergone a favorable security screening and if required, assigned to a higher grade position. When an officer does not meet the qualification for promotion the effective date of promotion may be advanced to the date qualifications are met.

The regulation further specifies that officers who are transferred from the Reserve after their PED are promoted effective on the day after transfer to a non unit status and the PED becomes the officer’s date of rank.



Title 10, United States Code, section 14308(c)(2) states that “Except as specifically authorized by law, a reserve officer is not entitled to additional pay or allowances if the effective date of the officer’s promotion is adjusted to reflect a date earlier than the actual date of the officer’s promotion.”

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. In view of all of the circumstances in this case, the applicant is not entitled to back pay from 30 December 1997 to 1 August 2000. He has not shown error or injustice for the relief he is now requesting.

2. His contentions have been noted by the Board; however, the applicant has not shown that on that date he met all the requirements for promotion, i.e., be in active Reserve status, completed the service requirements as appropriate, medically qualified, undergone a favorable security screening and if required, assigned to a higher grade position. The Board notes that if an officer does not meet the qualification for promotion the effective date of promotion may be advanced to the date qualifications are met. It is further noted that had the applicant been in the higher graded position at that time, he would have been eligible for promotion to lieutenant colonel on that date and entitled to back pay.

3. The Board concludes the applicant’s effective date for promotion to lieutenant colonel was correctly established as 2 August 2000, the date of his transfer to the IRR. The applicant has not submitted evidence that he was or would have been placed in a higher graded position on 30 December 1997, his PED. The Board cannot presume a position for his specialty existed at the time, or that he would have been selected for such a position.

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 this 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

_SK_____ _RVO___ _JPI____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002069849
SUFFIX
RECON
DATE BOARDED	20020718
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	129.00
2.	131.04
3.
4.
5.
6.