MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 25 February 2003
         DOCKET NUMBER: AR2002071416

         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. John N. Slone		Chairperson
Mr. Ronald E. Blakely		Member
Mr. Lawrence Foster		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: Reinstatement to Reserve promotion list and promotion to lieutenant colonel with an effective date of 28 December 1995. He also requests placement on the Active Duty Retired List or Medical retirement with at least 30% service connected disability.

APPLICANT STATES: In a letter to the Army Board for Correction of Military Records (ABCMR) and the Army Reserve, Total Army Personnel Command (PERSCOM) that he was mobilized for Operation Desert Shield/Storm from 6 December 1990 to 31 March 1995. He was selected for promotion to lieutenant colonel by the 1995 Reserve Components Selection Board (RCSB) and removed from that promotion list due to incorrect interpretation of Army Regulations, specifically, Army Regulation 135-155 and Army Regulation 135-381. He states that a determination be made to show his status as a USAR officer that was mobilized to active duty. He further states that, as an option, that a determination be made to show his status as an Army officer with retroactive placement on the retired list from active duty effective 30 March 1994, based on his 14 October 1993 request for active duty retirement. His third option is for placement on the medical retired list with at least 30% service connected disability effective 9 May 1996, based on a Veteran Administration (VA) decision granting 40% service connected disability.

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

He was appointed in the Reserve as a second lieutenant effective 5 June 1977.

He was ordered to active duty effective 21 January 1978.

He was promoted to first lieutenant effective 24 September 1979 and to captain effective 28 May 1981.

He was released from active duty for failure of selection, permanent promotion effective 6 July 1988 and transferred to the USAR Control Group (Reinforcement).

He was placed on the Reserve Active Status List (RASL) and considered and selected for promotion to major by the 1988 RCSB.

He was promoted to Army Reserve major effective 28 December 1988. Based on the required 7 years time in grade, his maximum time in grade date for promotion to lieutenant colonel was 27 December 1995.

On 21 November 1990, he was ordered to active duty in support of Operation Desert Shield/Storm with a reporting date of 26 November 1990.

On 28 October 1993, his commander requested, as an exception to policy, that the applicant be retained on active duty pending final result of his Physical Evaluation/Medical Evaluation Board appeal.

On 14 June 1994, the Chief, Retirements and Separation Branch, PERSCOM, denied his request for early retirement.

His records do not show if he was considered for promotion to lieutenant colonel by the 1994 active duty promotion board.

He was considered and selected for promotion to lieutenant colonel by the 1994 RSCB that recessed on 27 September 1994. His name was later deleted from the 1994 promotion board in accordance with Army Regulation 135-155, paragraph 3-13a(2)(h).

On 13 March 1995, an Army personnel officer advised PERSCOM that the applicant had been on continual active duty since Desert Shield/Storm and should not have been considered for promotion by the 1994 RCSB. He also advised that based on information obtained, the applicant should have been removed from active duty (REFRAD) no later than sometime in 1992 or 1993, but was erroneously retained for treatment of an injury sustained in a non-combat related vehicle accident during Desert Shield/Storm.

He was released from active duty, not by reason of physical disability, effective 31 March 1995 and transferred to the USAR Control Group (Reinforcement).

On 5 October 1995, the Chief, Office of Promotions, Reserve Components, advised the applicant that in accordance with Army Regulation 135-155, an officer must be in an active status to be eligible for promotion and not be placed on the active duty list (ADL). A review of the ADL revealed that he was on that list at the time the 1994 annual board convened. Therefore, he was not eligible for consideration by that board and his name had been deleted from the official results in accordance with Army Regulation 135-155, paragraph 3-13a(2)(h).

He was considered and not selected for promotion to lieutenant colonel by the 1995 RCSB that recessed on 27 October 1995.

On 9 May 1996, he was awarded 40% service connected disability from the VA.

On 10 June 1996, the Deputy Inspector General, Office of the Inspector General, PERSCOM, advised the applicant that he was removed from the 1994 RCSB promotion list because he was on active duty at the time of his selection based solely upon the guidance of Army Regulation 135-155. He also advised the applicant that the only other administrative avenue for him would be to make an application for his case to be considered before the Army Board for Correction of Military Records (ABCMR).

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers. This regulation specifies an officer's name will not be removed from a selection board list unless that officer's name was put on the ADL prior to finalization of the USAR promotion. The regulation also specifies that an officer's name will be removed if that officer was ineligible for the selection because he/she was not in an active Reserve status.

The regulation also specifies that mandatory selection boards will convene each year and will consider Army National Guard and Reserve officers on the RASL for promotion to captain or higher. The regulation also specifies that officers on the active duty list (ADL) will not be considered. Paragraph 4-21 specifies that unit officers selected by a mandatory board will have a promotion date and effective date no earlier than the date the board is approved by the President, provided they are assigned to a position in the higher grade.

Army Regulation 135-381, prescribes the policies and procedures regarding disability benefits for Reserve officers. This regulation specifies that USAR officer who incur an injury while serving on active duty pursuant to orders in excess of 30 days may request either to remain on active duty by extending their orders beyond the current expiration date or be released from AD and continue to receive active duty pay provided they are declared incapable of performing their military duties by military medical authority.

United States Code (USC), Title 10, section 14317(e) (Oct 96) specifies that USAR officers ordered to active duty in time of war or national emergency, may, if eligible, be considered for promotion by a mandatory promotion board convened under section 14101(a) (convened a promotion board to recommend for promotion officers on the RASL) for not more than 2 years from the date the officer is ordered to active duty.

USC, Title 10, Chapter 36, Promotion, Separation, and Involuntary Retirement of Officers on the ADL, Section 641(1)(D) (Oct 00) specifies that Reserve officers on the RASL who are on active duty under section 12301(d) (at any time, an authority designated by the Secretary concerned may order a Reserve member under this jurisdiction to active duty in the time of war or of national emergency) of this title are not subject to this chapter, unless under a call or order to active duty specifying a period of 3 years or less.

USC, Title 10, Section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rated 30 percent or more disabling.

USC, Title 38, Sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and the said medical condition reduces or impairs the social or industrial adaptability of the individuals concerned

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The regulation defines “physically unfit” as unfitness due to physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.

The Chief, Promotion and Notifications Branch, Office of Promotions, PERSCOM, expressed the opinion that a review of the applicant’s case from 25 July 1996 revealed that the applicant was erroneously considered by the 1994 RCSB. At the time of his consideration he was on the ADL; therefore, he was not eligible for consideration by that board. The applicant was advised in 1996 by that office and the IG to apply to the ABCMR. It was recommended that the application be denied.

The opinion was forwarded to the applicant for acknowledgement/rebuttal on 18 September 2002. In his rebuttal dated 15 October 2002, he states that he does not agree with the staff advisory opinion. He further believes that PERSCOM erroneously used facts/information and misinterpreted the AR’s in reaching their decision in July 1996 and again in August 2002. He also states the facts pertinent in his case are: As a USAR officer, he was mobilized for Operation Desert Shield/Storm in December 1990, his whole unit mobilized and he had been a member of that unit since July 1988; he was injured during Operation Desert Shield/Storm and remained on active duty for medical treatment and was always treated and considered by the active component as a USAR officer and was never managed by the active component for promotion consideration. During medical treatment, he applied for early retirement under the Active Component Program. The action was disapproved because the program was intended for active component personnel, and as a USAR officer, he was not eligible for this program. As a USAR officer he became eligible for promotion consideration during 1995 and he was correctly considered and selected for promotion. Army Regulations on promotion of USAR officers have changed and this is precisely the problem he is now facing. He further states that involuntarily mobilized USAR officers now remain on the RASL for up to 2 years. USAR officers who volunteer for an extended active duty tour will remain on the RASL for up to 3 years. The first instance became law 1 October 1996 and is found in USC, Title 10, 14317(e) and the second became law (USC, Title 10, 641(1)(D) 30 October 2000. As a result of these two laws, USAR officers are managed for promotion under the Reserve system (ROPMA), not the active duty system.

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. In view of the circumstances in this case, the applicant is not entitled to reinstatement to the Reserve promotion list or promotion to lieutenant colonel. He has not shown error, injustice, or inequity for the relief he now requests.

2. The Board has noted his contentions that he was selected for promotion to lieutenant colonel, removed from the Reserve promotion list due to incorrect interpretation and understanding of Army Regulations. However, the applicant was ordered to active duty in 1990. In 1993, he requested to continue on active duty as an exception to policy; therefore, when he was considered and selected for promotion to lieutenant colonel by the 1994 Reserve promotion board he was not eligible for this promotion because of his status. The applicant elected to remain on active duty for medical purposes. With this election the applicant was no longer managed for promotion under the Reserve system. In accordance with Title 10, USC, section 14317, he was eligible for consideration and promotion to the next higher grade as an officer on the RASL from 1990 to 1992, not more that 2 years from the date the officer is ordered to active duty. Army Regulation 135-155 provides for the consideration of promotion by a mandatory board of Army National Guard and Reserve officers on the RASL. The applicant’s name was appropriately deleted from the results of the 1994 Reserve promotion board; therefore, he is not entitled to promotion to lieutenant colonel effective 28 December 1995, as this selection was removed.

3. It is also noted that the applicant states that as a Reserve officer on extended active duty he was to remain on the RASL for up to 3 years. The applicant would have had to been considered and selected by the 1993 Reserve promotion board to be eligible for promotion to lieutenant colonel as a Reserve officer on extended active duty.

4. It is also noted that the applicant was again considered for promotion to lieutenant colonel by the 1995 Reserve promotion board and not selected. Therefore, he was not selected for promotion to lieutenant colonel in 1995 and is not entitled to promotion to lieutenant colonel now.

5. The Board also notes that the applicant was released from active duty not by reason of physical disability and transferred to the Reserve. He was subsequently retired from the Reserve in the rank of major; therefore, he is not entitled to placement on the Active Duty Retired List as a retired Reserve officer.
6. The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency. It does not, in itself, establish physical unfitness for Department of the Army purposes.

7. The rating action by the VA does not necessarily demonstrate an error or injustice in the Army rating. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved (i.e., the more stringent standard by which a soldier is determined not to be medically fit for duty versus the standard by which a civilian would be determined to be socially or industrially impaired), an individual’s medical condition may be rated by the Army at one level and by the VA at another level.

8. 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.

9. 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____ _REB___ _LF_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002071416
SUFFIX
RECON
DATE BOARDED	20030225
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.00
2.	131.00
3.	136.00
4.
5.
6.