MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 19 November 2002
         DOCKET NUMBER: AR2002070712

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Ms. Sherri V. Ward		Member
Mr. Melvin H. Meyer		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, revocation of his retirement, reinstatement with no break in service, placement in an 0-5 position, promotion to lieutenant colonel (LTC), effective 8 February 2001, and an extension in order to allow his retirement in the rank and pay grade of LTC/0-5. The applicant specifies that he does not request any back pay or compensation in connection with this request.

APPLICANT STATES: In effect, that he was unfairly denied the opportunity to extend beyond 20 years on Active Federal Service (AFS), for promotion, and to continue to serve the United States Army Reserve (USAR) in an Active Guard Reserve (AGR) status. He repeatedly expressed his desire to extend beyond
20 years of AFS, but was repeatedly told by officials of the Full Time Support Management Directorate (FTSMD), Provost Marshall Office (PMO), that his request would be denied because the AGR program was excess officers and specifically did not need Military Police (MP) officers. He claims that in September 2001, he heard contrary rumors that the AGR program was short officers. At that time, he contacted Force Development officials of the Office of the Chief, Army Reserve (OCAR), who advised him that the AGR program was short 300 officers, and corrective action was being taken to correct this shortfall. He contends that FTSMD officials must have been aware of this shortfall. He immediately requested rescinding his retirement request and requested an AFS extension. FTSMD’s position did not change and they again indicated that his extension request would be denied. Less than 2 months after he retired, FTSMD sent letters to all AGR officers with 18 or more years of AFS and asked that they submit extension packets to the AFS extension board if they wanted to extend. Results of the AFS extension board included MP officers. FTSMD officials knew he wanted his promotion and knew his records were before the Department of the Army (DA) Reserve Components (RC) LTC Promotion Selection Board, and they could have ascertained his promotion eligibility or extended him until the results of the promotion board were published, and they elected not to do so. He claims that he was never afforded the opportunity to be promoted even though he was eligible for promotion 8 days after he retired. He contends that since September 2001, the need for retention of MP officers to support the Homeland Defense Corps, Internment, and Garrison Operations has never been greater. “Stop Loss” is in effect for certain specialties, including MP officers, and the need will only increase over time. With 16 years MP experience, he can once again be a major contributor to the USAR and toward the war effort if afforded the opportunity.

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In support of his application, the applicant provides the following documents: Army Reserve Personnel Command (ARPERSCOM), St. Louis, Missouri, letter Subject: Submission of Voluntary Retirement, dated 1 March 2000; retirement orders, dated 28 August 2000; request to rescind retirement actions and for extension on AFS with chain of command endorsements, dated 6 September 2000; separation document (DD Form 214), dated 31 January 2001; Total Army Personnel Command (PERSCOM), St. Louis, letter announcing the results of the 2000 DA RC LTC Promotion Selection Board, dated 21 February 2001; OCAR AFS Extension Board announcement letter, dated 27 March 2001; results of the AFS Extension Board, dated July 2001; and supporting letters form a colonel (COL) and a brigadier general (BG), dated March 2002.

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

On 1 March 2000, the applicant was issued an ARPERSCOM letter informing him that he would complete 20 years of AFS on 25 January 2001. He was further notified that in accordance with the applicable Army regulations, his release from active duty (REFRAD) was required not later than 28 February 2001, which was the last day of the month following the month in which such service would be completed. In connection with this action, he was required to submit a voluntary retirement request within the timeframe mentioned.

The applicant requested voluntary retirement based on length of service, and Orders Number P-08-010111, dated 28 August 2000, issued by ARPERSCOM, directed his REFRAD on 31 January 2001, and his placement on the Retired List on 1 February 2001. These orders also confirmed that at the time of his retirement, he would have completed a total of 20 years and 6 days of creditable active military service, and that his retired rank and pay grade would be major/04 (MAJ/0-4).

On 6 September 2000, the applicant submitted a request that his retirement request be withdrawn and that his retirement order be revoked. He also concurrently requested a two year extension beyond 20 years of AFS. In his request, he indicated that he had no intention of retiring, however, he was approaching his 20 years of service and was advised by the FTSMD that they were excess AGR officers and that it would recommend disapproval of his extension request; however, he could submit it if he desired. In his extension request, he also indicated that he had spoken to OCAR officials and was informed that they were short 300 AGR officers, and that these positions would be filled during Fiscal Year (FY) 2002 (02). He indicated that he felt he was already trained and experienced in some of the USAR’s most critical areas, and that it would be to the benefit of the Army to retain him. No record of the final action on this request is on file in his records and the applicant failed to provide this documentation.

On 31 January 2001, he was REFRAD, for the purpose of retirement, after completing a total of 20 years and 6 days of active military service. The
DD Form 214 issued to and authenticated by the applicant with his signature on the date of his separation confirms that he held the rank and pay grade of
MAJ/0-4 on that date. This document also verifies that he was voluntarily REFRAD under the provisions of Army Regulation 600-8-24, by reason of sufficient service for retirement.

On 21 February 2001, PERSCOM, St. Louis, published a memorandum with the results of the 2000 DA RC LTC Promotion Selection Board, and authorized its release on 8 February 2001. Although already retired, the applicant’s name was included in this list.

On 27 March 2001, the OCAR released a memorandum, Subject: 2001 Army Reserve AGR AFS Extension Advisory Board (EAB). This memorandum indicated that an AGR AFS EAB would convene in June 2001, to consider eligible officers for extension beyond 20 years of AFS. The results of this board were released by the OCAR in July 2001.

On 13 March 2002, a BG and a COL from the G3 of the United States Army Forces Command (FORSCOM) provided memorandums to the Board supporting the applicant’s request. Their support was based on the applicant’s outstanding support in his capacity as a civilian contract employee and his excellent reputation within FORSCOM. They further point out the need for experienced MP personnel for homeland security, internment, and combat operations.

In connection with the processing of this case, the Board requested of and received an advisory opinion from officials of the ARPERSCOM, FTSMD. It recommended that the applicant’s request be denied. It further stated that although the applicant submitted a request for an extension of AFS on
6 September 2000, their records indicated that he also requested withdrawal of that his AFS extension request on 15 September 2000, and the request was returned without further action. FTSMD officials further opined that in accordance with applicable regulations, officers removed from an active status before the effective date of the promotion will be removed from the list. The applicant was selected for promotion by the 2000 DA RC LTC Promotion Board and was placed on the list that was officially released on 8 March 2001, with a promotion effective date of 8 February 2001, for those officers assigned to a LTC positions who met promotion eligibility criteria. However, the applicant was made ineligible for promotion upon his retirement on 31 January 2001. In addition, he never served in a LTC position in the USAR.

On 29 July 2002, the applicant was provided a copy of the ARPERSCOM advisory opinion in order to have the opportunity to reply. To date, he has failed to respond.
Army Regulation 135-155 prescribes the policies and procedures for selection of commissioned officers of the Army National Guard and Army Reserve for promotion. Paragraph 2-6 states, in pertinent part, that an officer who is removed from active status before a promotion is finalized, the effective date of the promotion, will be removed from the promotion list.

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 Board notes the applicant’s contention that he was unfairly denied an extension of his AFS, and his promotion to LTC/0-5. However, the evidence of record confirms that he was voluntarily REFRAD and placed on the Retired List in the rank and pay grade of MAJ/0-4 on 31 January 2001. Although, he now contends that he was, in effect, forced to retire, the Board finds insufficient evidence to support this claim.

2. The evidence of record confirms that the applicant submitted a request to withdraw his retirement and for an extension of his AFS on 6 September 2000. However, the advisory opinion provided by ARPERSCOM confirms that he withdrew these requests on 15 September 2000. Notwithstanding his comments to the contrary, the Board finds no evidence to suggest the applicant was forced to withdraw his extension request. Further, all the evidence provided by the applicant pertaining to AGR AFS extension boards and selections show that these actions were all accomplished in June and July 2001, well after he had been REFRAD for the purpose of retirement in January 2001.

3. The record also shows that the applicant was selected for promotion by the 2000 DA RC LTC Selection Board, and that he was placed on the promotion standing list that was released in March 2001, with a promotion effective date of 8 February 2001. By regulation, an officer who is removed from active status before the effective date of the promotion will be removed from the promotion list.

4. Finally, the record contains a properly constituted DD Form 214 that was authenticated by the applicant with his signature on the date of his REFRAD for retirement. In view of the facts of this case, the Board finds that the applicant’s retirement and removal from the promotion list were accomplished in accordance with applicable law and regulation. As a result, it finally concludes that there is insufficient evidence to show that there was an error or injustice related to the applicant’s retirement processing or removal from the LTC Promotion List, and it finds no evidentiary basis to grant the requested relief.

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5. 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

6. 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

__JNS__ ___SVW_ __MHM__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002070712
SUFFIX
RECON
DATE BOARDED	2002/11/19
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	2001/01/31
DISCHARGE AUTHORITY	AR 600-8-24
DISCHARGE REASON	Retirement
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 192	110.0300
2. 1023	106.0010
3.
4.
5.
6.