MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 19 December 2002
         DOCKET NUMBER: AR2002074873

         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. Raymond V. O’Connor, Jr.		Chairperson
Mr. Stanley Kelley		Member
Mr. Harry B. Oberg		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 allowed to stay in an active status in the United States Army Reserve (USAR) until his mandatory retirement date in 2010.

APPLICANT STATES: In effect, that he recently received a letter informing him that he was a two time non-select for promotion to lieutenant colonel (LTC). He claims that he was extremely surprised to receive the letter, even though he was not surprised that he was a not selected for promotion. He states that he knew he did not complete 50 percent of his Command and General Staff College (CGSC) education requirement, but was surprised that his records had gone before the promotion board.

The applicant also states that he left active duty in September 1992 as a Variable Separation Incentive (VSI) recipient. At that time, he attempted to join a USAR, or Army National Guard (ARNG) unit, but none were available. In the year 2000, he finally found a unit in North Carolina which he joined. However, because he had never been in the USAR before, he was unfamiliar with its personnel policies. He was specifically unaware that the whole time he was in an Individual Ready Reserve (IRR) status, the clock was still ticking, and he was not considered in an inactive status as he had assumed. He states that he is not claiming that there was an error in any of the procedures followed by the promotion boards or the administrative staff, and he admits the error was his, because he failed to understand his Reserve status as it related to his time in service and eligibility for promotion. He states that indeed, when he was able to join a Reserve unit in the Selective Service System, he immediately enrolled in CGSC in an effort to complete the military education requirement for promotion, and he expects to complete 50 percent of the course requirements by this summer.

The applicant also states that he is now requesting that he be allowed to stay in the USAR in an active status in his current unit until his mandatory retirement date of 2010. He states that he has enclosed letters of support from his Detachment Commander and the Regional Director, which attest to his performance of duty, and their desire to retain him. In addition, he provides a copy of his separation option memorandum, which he wishes to be superceded by this action. He claims that a review of his records will certainly show that the only reason he was not selected for promotion was that he failed to meet the academic requirement, and not due to any performance related shortcomings. He further requests that based on his misunderstanding of his status for the eight years between 1992 and 2000, he be reconsidered for promotion by the next promotion board. He claims that he has been working diligently for the past
year to complete the CGSC requirements. He further comments that he believes that it would be counterproductive to separate him at this time because of his misunderstanding of his status given his desire to remain an officer in an active status in the USAR.

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

On 26 May 1982, upon his graduation from the United States Military Academy, West Point, New York, he was commissioned second lieutenant in the Regular Army. He entered active duty and continuously served in a commissioned officer status for 10 years, 4 months, and 5 days. On 30 September 1992, he was honorably released from active duty (REFRAD), in the rank of captain/0-3. The separation document (DD Form 214) issued to him on the date of his REFRAD confirms that he was a VSI recipient, and that upon his separation from active duty, he transferred to the IRR of the USAR Control Group, St. Louis, Missouri.

On 2 October 1982, the applicant was appointed a captain in the USAR, and on 25 May 1994, he was promoted to major in the USAR. In September 2000, the applicant transferred from the IRR to Detachment 2-12, Selective Service System, Raleigh, North Carolina, an active status unit in the USAR.

On 14 March 2002, the applicant was provided a Memorandum, Subject: Options Upon Nonselection for Promotion after Second Consideration, from the Army Reserve Personnel Command (ARPERSCOM). This memorandum informed the applicant of the options available to him as a result of his recent non-selection for promotion after a second consideration to lieutenant colonel (LTC). He was also provided a Reserve Status Statement and Election of Options form to complete and return with his preferred option. On 3 April 2002, the applicant completed the option election form, and he requested to be transferred to the Retired Reserve as a VSI recipient.

In connection with the processing of this case, an advisory opinion was requested of and received from ARPERSCOM personnel officials, dated
5 September 2002. In this opinion, personnel officials indicated that there were no provisions in the applicable law and regulations that would allow for the applicant to remain in an active USAR status subsequent to his having been twice non-selected for promotion to LTC. It further indicated that the applicant was transferred to the Retired Reserve in order to allow him to continue to receive VSI payments only with no additional benefits authorized. ARPERSCOM personnel officials finally opined that the law was very specific in regard to the actions to be taken in cases of officers who are twice not selected for promotion, and it was finally recommended that the applicant’s status remain unchanged.

The applicant was provided a copy of the foregoing advisory opinion in order to have the opportunity to respond, and on 29 April 2002, he provided a rebuttal letter. In it, he stated that in his application to the Board, he implicitly asked for an exception to policy, and he is well aware of the policy in regard to officers twice not selected for promotion.

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The applicant further indicates that ARPERSCOM officials chose to cite policy, rather than to consider, or comment on, the merit of his request. He also stated that as he indicated in his original application, as supported in the attached letters of recommendations, his unit wants him to remain where he is. His chain of command is pleased with his performance, and the position is funded by the Selective Service System, not the USAR. He also claimed that the second paragraph of the advisory opinion confused him because his status as a VSI recipient has nothing to do with either his status in the USAR or the reason for his forced retirement, and he is unsure of why this issue was even raised. Finally, he restates that he is asking for an exception policy because it is clear that his not being selected for promotion was not performance related, and was simply based on his failure to complete the academic requirement for promotion.

Army Regulation 15-185, provides the regulation that governs the operation of the Board, sets forth the procedures for processing requests to correct military records states, in pertinent part, that the Army Board for Correction of Military Records begins its consideration of each case with the presumption of administrative regularity and the burden of proving error or injustice by a preponderance of the evidence rests with the applicant.

Department of Defense Military Pay and Allowances Entitlements Manual (DODPM), based on Public Law 102-190, 5 December 1991, as amended, prescribes the qualifications for entitlement to readjustment benefits for certain voluntary separated members. The VSI was one of the monetary benefits associated with this incentive program. The policy published to support the military drawdown stipulated that members approved for VSI would be paid in annual installments commencing on their departure date from active duty, and on each anniversary date thereafter for twice the number of years on active duty, provided that the member continued to serve in the Ready Reserve. It further stipulated that VSI annual payments would be discontinued if the member was separated from the Ready Reserve.

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. The Board notes the applicant’s request that he be allowed to remain in an active USAR status as an exception to policy. However, it finds an insufficient evidentiary basis to support this requested relief. The evidence of record confirms, and by the applicant’s own admission, his processing in connection with his twice being not selected for promotion to LTC was accomplished in accordance with the applicable laws and regulations.

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2. The Board notes and carefully considered the recommendations of members of the applicant’s current chain of command, and it does not dispute his assertion that he is performing his duties in an outstanding manner. However, these factors alone are not determinate in this case. In order for the Board to grant the exception to policy requested by the applicant, there would have to be clear and convincing evidence to show some error or injustice related to the applicant not being selected for promotion. However, the Board finds no such conditions exist in this case.

3. The laws and regulations that mandate the required processing of commissioned officers who are twice not selected for promotion are clear and applicable to all members equally. Therefore, since the Board finds no error or injustice related to the action, it is compelled to deny the requested relief in the interest of fairness to all those who served and faced similar circumstances.

4. The applicant is advised that the reference to his VSI status made in the ARPERSCOM advisory opinion was based on its impact on the Retired Reserve option made available to him in connection with his processing as a result of his twice not being selected for promotion. Had he instead been discharged in connection with this processing, he would have lost his Reserve affiliation and as a result forfeited his right to any future annual VSI payments. Therefore, notwithstanding other eligibility criteria, he was provided the option to transfer to the Retired Reserve in order to retain his VSI eligibility.

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

__RWA__ __KYF___ __BPI__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002074873
SUFFIX
RECON
DATE BOARDED	2002/12/19
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 310	131.0000
2.
3.
4.
5.
6.