PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 12 September 2002
         DOCKET NUMBER: AR2002073471


         I certify that hereinafter is recorded the true and complete record of the proceedings 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:

Mr. John N. Slone		Chairperson
Mr. William D. Powers		Member
Mr. Donald P. Hupman		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

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

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that his Mandatory Removal Date (MRD) be adjusted from 4 July 2000 to 1 September 2002, and that he be allowed to retain the retirement points that he has earned during that period.

3. The applicant states, in effect, that he was transferred to the Retired Reserve after being twice non-selected for promotion to lieutenant colonel (LTC) due to administrative error. He was subsequently selected for promotion LTC by a Special Selection Board and restored to active Reserve status. When he was reassigned to a United States Army Reserve (USAR) Troop Program Unit (TPU), he requested that the TPU Senior Supervisory Administrator (SSA) adjust his MRD to restore 2 years, 1 month, and 26 days he lost while being in the Retired Reserve. This resulted in his MRD being changed to June 2002, but it should have been changed to 1 September 2002. He requested that his MRD be changed to 1 September 2002. He states that his promotion eligibility and selection will be impacted possibly resulting in the loss of promotion to colonel (COL) if the MRD is not changed.

4. The applicant’s military records show that the applicant was commissioned as an officer in the United States Army Reserve (USAR) on 11 June 1972, at the age of 21 years. His date of birth is 14 November 1950. His automated Personnel Qualification Record prepared 28 October 1993, shows that his MRD was 4 July 2000. He is a Military Police (MP) officer.

5. On 30 March 1995, he was transferred from a USAR TPU to the Retired Reserve, effective 28 February 1995, as a result of a second nonselection for promotion to LTC. On 3 April 1996, a Reserve Components Promotion Advisory Board reviewed the applicant's file and selected him for promotion to LTC. On
7 August 1996, this Board (case AC96-07371) directed that the applicant's order transferring him to the Retired Reserve be voided, that he be credited with qualifying service for retirement credit for the period he was in the Retired Reserve, and that he be promoted to LTC.

6. On 5 February 1997, the applicant's orders transferring him to the Retired Reserve were revoked. On 13 May 1997, he was released from the Individual Ready Reserve (IRR) and assigned to a USAR TPU. On 14 May 1997, the
U. S. Total Army Personnel Command (PERSCOM) issued a promotion memorandum promoting the applicant to LTC, effective 30 March 1995, with a date of rank (DOR) of 7 October 1994. Retirement points were credited to his retirement account to make the three retirement years from 4 June 1994 through 3 June 1997, good years creditable for retired pay at age 60.

7. At an unknown date, the applicant's TPU SSA requested a change in the applicant's MRD. The USAR automated personnel data system shows that the applicant's MRD is 1 September 2002.

8. The applicant was activated with his USAR TPU, the 800^th MP Brigade, and is currently on active duty with his unit in Uniondale, Long Island, New York. He has been credited or will be credited with the following retirement points for the retirement years between 4 June 2000 and 1 September 2002.

Retirement Year	Points
20000604-20010603	110
20010604-20020603	257
20020604-20020901	105

9. The applicant was considered for promotion to colonel (COL), USAR, by the 1999 and 2001 USAR promotion boards and not selected. He was also considered for promotion to COL by the promotion board that convened on 8 July 2002, and adjourned on 8 August 2002. However, Army Regulation (AR)
135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 2-5h, states that an officer with a MRD that is
90 days or less from the convening date of the selection board is not eligible for consideration for promotion by that board. Paragraph 3-18a(4) states that an officer is ineligible for promotion consideration and will be removed from the promotion board report and promotion list if the officer was in an active Reserve status in error at the time of consideration.

10. As a result of promotion to LTC with a DOR of 7 October 1994, the applicant was eligible for consideration for promotion to COL far enough in advance of
5 years time in grade (6 October 1999), to be promoted to COL on that date. He should have been considered by the 1998 COL promotion board as well as the 1999 promotion board. The applicant is currently scheduled for review by a Special Selection Board on 8 August 2002, for promotion to COL under the
1999 promotion criteria. His file reviewed by the original 1999 promotion board was missing critical documents and personnel data.

11. Army Regulation 140-10 (Army Reserve Assignment, Attachments, and Transfers), paragraph 7-2, states that the MRD for a LTC is 30 days after completing 28 years of commissioned service if under age 25 when commissioned. Based on the applicant having been commissioned on
11 June 1972, plus 28 years and 30 days, his correct MRD is 10 July 2000. Under the Reserve Officer Personnel Management Act (ROPMA), if he is selected for promotion to COL under the 1998 or 1999 criteria, his MRD would be extended to 30 years of commissioned service resulting in an MRD of 10 July 2002. Paragraph 7-11 states that soldiers erroneously retained beyond their
MRD, should be removed from active status when the error is discovered effective on the removal action date and not effective retroactively.


CONCLUSIONS :

1. The applicant's MRD recorded in the automated personnel data system in 1993 was 4 July 2000. This was based on a computation made at an undetermined earlier date. According to AR 140-10, the applicant's MRD is
28 years and 30 days, less one day, from his commissioning date, 11 June 1972, which makes his correct MRD 10 July 2000. His posted MRD of 4 July 2000 was incorrectly changed to 1 September 2002, as a result of an incorrect request from his TPU to so change the date. It appears that there was a misconception that the applicant's transfer to the Retired Reserve in 1994 and subsequent revocation of that transfer in 1997 resulted in a break in service warranting an adjustment to the MRD. The applicant did not have a break in service; he was transferred to the Retired Reserve which was revoked to the effect that he was continuously in the active Reserve. The applicant should have been correctly mandatorily removed from active status on 11 July 2000, or at least on 4 July 2000, as originally posted in the automated personnel data system. He was erroneously continued in an active status past that date based on an incorrect MRD, 1 September 2002, posted to the system. Since he served beyond his correct MRD of 11 July 2000, earning retirement points and receiving pay and allowances in good faith, his MRD should be adjusted to 1 September 2002, as an exception to regulation and policy. As a matter of justice and fairness, he should also be allowed to retain the retirement points and pay and allowances earned between 4 July 2000 and 1 September 2002. He should be transferred to the Retired Reserve effective 1 September 2002.

2. If he is selected for promotion to COL by the Special Selection Board under 1999 criteria, he may apply to this Board for advancement in the Retired Reserve as a matter of justice and fairness. He should also be considered for promotion to COL under the 1998 criteria. He should not be consider for promotion to COL under the 2000 criteria since that promotion board originally convened on 11 July 2000, which was within 90 days of his correct MRD and he was therefore not eligible for consideration by that board according to AR 135-155, paragraph 2-5h. He should not be considered for promotion to COL under 2001 or 2002 criteria, in accordance with AR 135-155, paragraph 3-18, since he was erroneously retained past his correct MRD of 11 July 2000, and was on active status in error.

3. In view of the foregoing, the applicant’s records should be corrected as recommended below.







RECOMMENDATION :

1. That all of the Department of the Army records related to this case be corrected, as an exception to regulation and policy, for the individual concerned by:

         a. showing that his MRD is adjusted to 1 September 2002;

         b. allowing him to retain the retirement points and pay and allowances received between 4 July 2000, his original MRD, and his adjusted MRD,
1 September 2002;

         c. removing his name for the 2002 USAR COL promotion consideration list since the promotion board convened within 90 days of his adjusted MRD;

         d. removing his name from the 2001 USAR COL promotion consideration list since he was considered past his correct MRD contrary to regulation and removing from his record reference to non-selection by that board; and

         e. considering him for promotion to USAR COL under the 1998 promotion criteria.

2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE :

__js___ ___wp___ ___dh___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___John N. Slone___
                  CHAIRPERSON

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INDEX

CASE ID	AR2002073471
SUFFIX
RECON
DATE BOARDED	20020912
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT PART
REVIEW AUTHORITY
ISSUES 1.	115.02 – Removal
2.	135.00 - Reserve Service Credit
3.
4.
5.
6.