| Mr. Carl W. S. Chun | Director | |
| Ms. Deborah L. Brantley | Senior Analyst |
| Ms. Karol A. Kennedy | Chairperson | |
| Mr. Melvin H. Meyer | Member | |
| Ms. Tracey L. Pinson | Member |
APPLICANT REQUESTS: In effect, that his records be corrected to reflect that he was a member of the Retired Reserve between 1995 and 1999 and that any points received during those years be deleted as though he had a complete break in service. He notes that with this correction his two-time non-selection for promotion to lieutenant colonel should be rescinded and he should be permitted to return to an active Reserve status and not be considered for promotion to lieutenant colonel until 2004. He states that what he is "seeking is to reclaim the four plus years of break in service so [he] can continue to serve as a Chaplain in the United States Army Reserve."
APPLICANT STATES: In effect, that in 1995 he received notification that he had been transferred to the Retired Reserve effective in May 1987. He notes that he questioned the effective date, but not the fact that he was transferred, and maintained that the transfer date should have been March 1995. The applicant states that he was informed telephonically that the orders transferring him to the Retired Reserve would be rescinded and that new documentation confirming the transfer date of 1995 would be issued. He states he never received such confirmation. However, in January 1997 he notes that he did receive orders rescinding the 1987 transfer to the Retired Reserve, but did not receive new orders correctly transferring him to the Retired Reserve with an effective date in 1995. He states that in 1997 he was informed that he had been promoted to captain effective November 1985 and in June 1999 he was informed that he had been promoted to major effective in November 1992. In September 1999 he received a letter indicating that he was on the "verge" of being separated for "Nonparticipation in the U.S. Army Reserve" and after a "brief investigation" found that he had been transferred from the "Retired Reserve to Active Reserve status without [his] knowledge." He states that he immediately sought a position and was assigned to a chaplain position with the 339th Combat Support Hospital.
In support of his request he submits a 1985 initial "pass over notification" and 1997 documents correcting this pass over. He submits copies of orders separating him from the Army National Guard, retirement notification, a 1993 retirement point summary, a certificate transferring him to the Retired Reserve effective in 1987, orders revoking the 1987 transfer, notification of selection and promotion orders to the rank of major, a 1999 notice of nonparticipation, and orders assigning him to the 339th Combat Support Hospital. He also submits a July 2002 letter from his "supervisory chaplain" supporting his request to show that he was in a retired status from 1995 until 1999 and that he be allowed to remain in his present position with the 339th until the issues surrounding his break in service and retirement are resolved.
EVIDENCE OF RECORD: In addition to information contained in the applicant's military records, information contained herein was reconstructed from documents provided by the applicant and those contained in previous Board actions associated with the applicant and his petitions for promotion reconsideration. Additional information was also extracted from a Retirement Points History Statement provided by officials at the United States Army Total Personnel Command in St. Louis.
Information available to the Board indicates the applicant was an enlisted member of a Reserve Component between November 1971 and January 1983 when he received a commission.
On 15 April 1985 the applicant, a first lieutenant, apparently in the Army National Guard, was notified that he had not been selected for promotion to the rank of captain by a "recent Reserve Selection Board," and that his non-selection constituted his first passover. He was also informed that if the next promotion board did not select him he would be subjected to removal from an active status.
Army Regulation 135-155 states that officers serving in the rank of first lieutenant, who fail to be selected for promotion to captain for the second time will be removed from active status (i.e. either discharged or transferred to the Retired Reserve, if eligible) not later than the first day of the seventh month after the month in which the final approval authority approved the report of the board which considered the officer for the second time, unless the officer can be credited with 18 or more, but less than 20, years of qualifying service for retired pay. At the time the applicant was first notified that he had not been selected for promotion to the rank of captain, he had less than 14 years of qualifying service for retired pay.
Army Regulation 140-10, which also discusses the removal of officers from an active status after failure to qualify for promotion, states that such officers may be transferred to the Retired Reserve, if they so request, and they have reached the age of 37 and have completed a minimum of 8 years of qualifying Federal service. The applicant reached his 37th birthday in November 1985 and as of his retirement year ending in November 1986 the applicant had accumulated 14 years of qualifying Federal service.
There is no indication the applicant was selected for promotion to the rank of captain in 1986. In accordance with Army Regulation 135-155 and Army Regulation 140-10 the applicant's second non-selection for promotion to captain
should have resulted in his removal from an active status. In the applicant's case this would have been a transfer to the Retired Reserve based on his age and years of qualifying Federal service. However, it appears that in spite of his second non-selection, the applicant continued to serve in an active Reserve status with the Army National Guard. His continued service is confirmed by his accumulation of retirement points through his retirement year ending on
29 November 1992. By November 1992 the applicant had accumulated 20 years of qualifying service for retired pay.
On 1 March 1993 the applicant, who was still serving in the grade of first lieutenant with the Army National Guard, was notified that he had "completed the required years of service" and would be "eligible for retired pay upon application at age 60." Several days later, on 9 March 1993 orders were issued separating the applicant from the Army National Guard and transferring him, in the grade of first lieutenant, to the United States Army Reserve (USAR) Control Group (Reinforcement) effective 1 March 1993. The reason for the separation and transfer was listed as "twice Non-Selected For Promotion." An Army National Guard Retirement Points History Statement accompanied the notification letter and separation orders. That same statement was included with the applicant's current application to this Board. In actuality, based on the reason for his transfer (twice non-selected for promotion), the applicant should have been transferred to the Retired Reserve in accordance with the provisions of Army Regulation 135-155 and Army Regulation 140-10.
It should be noted, at this point, that the applicant's 2002 Retirement Points History Statement indicates that the applicant continued to receive 15 membership points annually for his retirement years ending in 1993 through 1999. This was likely based on the 1993 orders, which retained him in an active status by transferring him to the USAR Control Group (Reinforcement) rather than correctly transferring him to the Retired Reserve.
On 13 April 1993, shortly after he was notified of his transfer to the USAR Control Group (Reinforcement) as a result of his non-selection for promotion, the applicant initiated an application for correction of military records. In that application the applicant requested that his 1985 passover for promotion to the rank of captain be corrected. He noted in his request that he was not selected for promotion in 1985 because of an error in his promotion packet indicating that he had not completed the necessary military education requirements for promotion, when in fact he had completed the required training in December 1984.
In June 1995, while the applicant's appeal was pending, orders were issued by the Army Reserve Personnel Center transferring the applicant to the Retired Reserve with a retroactive effective date of 30 May 1987. While those orders were not available to the Board, the applicant did provide a copy of the retirement certificate with his current application to the Board. This June 1995 action may have been an attempt to rectify the error which occurred following the applicant's second non-selection for promotion to captain by the 1986 promotion selection board. There is no indication that any action was taken to revoke the March 1993 transfer to the USAR Control Group (Reinforcement) when the 1995 order was issued.
As a result of the applicant's April 1993 application for correction of his military records, a USAR Standby Advisory Board was convened on 1 November 1995 and selected the applicant for promotion to the rank of captain with a
22 November 1985 date of rank. The advisory board adjourned on 3 November 1995. The Army Board for Correction of Military Records (AC95-11710) finalized their action on the applicant's April 1993 application on 21 February 1996 noting, as part of their action, that the applicant's transfer to the Retired Reserve was void and of no force or effect, that he was credited with qualifying service for Reserve retirement for his retirement years, from the date of his voided transfer to the Retired Reserve to the date he returned to the active Reserve. The applicant would have been provided a copy of the Board's proceedings as part of their close-out process. On 25 January 1997 officials at the USAR Personnel Center issued orders revoking the applicant's 1995 orders which transferred him to the Retired Reserve effective in 1987. Those orders cited the Board's February 1996 action as the basis for the revocation. In February 1997 the applicant was provided a copy of his promotion letter to the rank of captain by an official from the United States Total Army Personnel Command in St. Louis.
In February 1998 the Army Board for Correction of Military Records (AC98-05577) considered the applicant's petition for promotion to the rank of major. His petition appears to have been initiated based on his original 1993 application to the Board. As a result, the applicant was considered for promotion to the rank of major by a USAR Special Selection Board, which convened in October 1997. That Special Selection Board considered the applicant for promotion to the rank of major "under 1992 criteria" and did not select him for promotion. The Army Board for Correction of Military Records finalized their action on 11 February 1998.
In July 1998 this Board (AC98-07620) favorably approved the applicant's petition for promotion as a result of his selection for promotion to the rank of major by a USAR Special Selection Board who considered him for promotion based on 1993 criteria. That Special Selection Board convened in March 1998 and was also initiated based on the applicant's original April 1993 application for correction of his military records. This Board's July 1998 action again noted that the applicant's transfer to the Retired Reserve was void and of no force or effect. The applicant's promotion to the rank of major was announced in a memorandum published by the U.S. Total Army Personnel Command in St. Louis on 11 June 1999. His date of rank, for future promotion consideration to the rank of lieutenant colonel, was established as 21 November 1992. The applicant was provided a copy of the promotion action in June 1999.
None of the Board's action, in 1996 or 1998 addressed the applicant's 1993 order transferring him to the USAR Control Group (Reinforcement).
On 8 September 1999 the applicant was notified that Army Regulation 140-10 required that an officer who had accrued 20 years of qualifying service for retired pay must earn a minimum of 50 retirement points annually to be retained in an active status in the USAR. He was informed that officers who did not fulfill that requirement would be removed from an active status and that as of his most recent retirement year ending date he had been identified as not earning the required 50 points. The letter indicated that he had several options and asked that he complete an election form included with the notification letter. A copy of that election form, or the applicant's response to the notification, was not available to the Board. However, in March 2000 orders were issued by the USAR Personnel Command voluntarily transferring the applicant from the USAR Control Group (Reinforcement) to the 339th Combat Support Hospital.
According to the applicant, he was considered for promotion to lieutenant colonel in 2000 and again in 2001 and was not selected by either board. As such he was scheduled for separation not later than 1 September 2002. His 2002 Retirement Points History Statement confirms that he was separated in September 2002. Presumably, he was transferred to the Retired Reserve, although there is no documentation available to the Board which confirms this presumption. His non-selection for promotion to lieutenant colonel apparently prompted his current application to this Board. That application is dated 15 February 2002.
Army Regulation 135-155 also states that officers who either failed to be selected for promotion, or who were erroneously not considered for promotion through
administrative error may be reconsidered for promotion by either a promotion advisory board or a special selection board, as appropriate. These boards are convened to correct and prevent an injustice to an officer or former officer who was eligible for promotion but whose records, through error, were not submitted to a mandatory promotion selection board for consideration; or contained a material error when reviewed by the mandatory selection board.
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. Because of the complicated actions associated with the applicant's case, it is difficult to reconstruct exactly what took place during the applicant's years of military service. However, based on available evidence it appears that the applicant should have been removed from an active Reserve status on the first day of the seventh month following his second non-selection for promotion to captain. The Board believes the separation date should have occurred in 1986 or 1987, when the applicant was well short of the 20 qualifying years to make him eligible for retired pay at age 60.
2. For reasons not fully explained, or apparent, in the available evidence, the applicant was permitted to continue in an active status as a first lieutenant after his second non-selection, accumulating retirement points, and meeting requirements for qualifying years of service. There is no evidence the applicant questioned his 1985 non-selection for promotion to captain until some 8 years later, after he qualified for retired pay and orders were issued transferring him to the USAR Control Group (Reinforcement) as a result of his two time non-selection.
3. The applicant remained in the USAR Control Group (Reinforcement) until June 1995 when, it appears, officials at the USAR Personnel Center issued orders retroactively transferring the applicant to the Retired Reserve. As noted in the evidence of record, this may have been an attempt to rectify the error which occurred after the applicant's second non-selection for promotion to captain in 1986. The applicant maintains that he believed the transfer date should have been 1993, not 1987, but offers no explanation in his application as to the basis for this assumption. However, the Board presumes that the applicant believed the date should be 1993 because that was when he was originally transferred to the USAR Control Group (Reinforcement).
4. The Board notes that in spite of the June 1995 order the applicant's retirement point work sheet was not amended to delete retirement points accrued subsequent to the 1987 retroactive transfer date, including the membership points accrued subsequent to the applicant's 1993 transfer to the USAR Control Group (Reinforcement). The Board believes that it is possible that the office which issued the retroactive retirement orders may not have been aware of the 1993 transfer action, or that the applicant had continued to serve in an active status, accumulating retirement points, for several years after his second non-selection to captain.
5. Compounding the entire situation was the Board's actions in 1996 and 1998, which was apparently initiated as a result of the applicant's single 1993 application. Both of those actions voided the order transferring the applicant to the Retired Reserve without acting on the order which transferred the applicant to the USAR Control Group (Reinforcement). The Board also notes that it appears, based on the applicant's 2002 Retirement Points History Statement, that no action was ever taken to credit the applicant with a qualifying year of Federal service (i.e. awarding of 50 retirement points), as directed by the Board's 1996 and 1998 actions, for those years the applicant was supposed to have been in the Retired Reserve. Rather, the Board notes that he continued to accumulate membership points only, apparently based on the 1993 order transferring him to the USAR Control Group (Reinforcement).
6. Notwithstanding the foregoing, the Board contends that the applicant should have been aware as early as February or March 1996 that the Board had acted favorably on his request for promotion to captain. Even though he may not have received orders revoking the transfer to the Retired Reserve or his promotion order to captain until nearly a year later, in 1997, he should have known, based on the documents provided him by the Board, that his transfer to the Retired Reserve had been voided and he was to be credited with additional qualifying years of service. Still the applicant appears to have done nothing to return to an active status with a USAR or National Guard unit.
7. The Board notes that the applicant did not attempt to return to a unit until 1999, after he had been notified that he was not meeting the minimum retirement point requirement and he did not address the impact of his continued service until after his second non-selection for promotion to lieutenant colonel.
8. While the applicant's situation may be confusing, and officials at the United States Total Army Personnel Command in St. Louis may have been overlooked
issuing the correct orders at the correct time, the Board maintains that the applicant also bears responsibility. He should have been well aware, based on information contained in his first non-selection notification letter, that following his second non-selection for captain in 1986 he should have been removed from an active status. When this did not occur he did nothing, but continued to serve in his organization and accumulate retirement points. He did not raise the issue of a possible error in his original consideration for captain until 1993.
9. Because the applicant, once again faces a critical point in his military service, following his second non-selection for promotion to lieutenant colonel, he would have the Board undo its 1996 and 1998 actions which granted him retirement points and creditable years of military service in order to permit him two additional considerations for promotion. The Board is not convinced that the applicant has encountered any additional errors and/or injustice, which warrant the Board granting relief in this instance. Rather, the Board concludes that the applicant's records were corrected sufficiently by the 1996 and 1998 Boards which effected his promotions to captain and major and granted him qualifying years of service for retired pay. Such corrections were done in an effort to rectify a situation for which the applicant was partly responsible. The Board concludes that no additional relief is warranted.
10. 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
__KAK __ __MHM__ __TLP __ DENY APPLICATION
| CASE ID | AR2002076921 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 20030128 |
| TYPE OF DISCHARGE | (HD, GD, UOTHC, UD, BCD, DD, UNCHAR) |
| DATE OF DISCHARGE | YYYYMMDD |
| DISCHARGE AUTHORITY | AR . . . . . |
| DISCHARGE REASON | |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. | 135.00 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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