MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 13 February 2003
         DOCKET NUMBER: AR2002076999

         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. Beverly A. Young		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor		Chairperson
Ms. Gail J. Wire		Member
Mr. Robert J. Osborn		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 she be reconsidered by a Department of the Army (DA) Special Selection Board for promotion to lieutenant colonel.

APPLICANT STATES: In effect, that her consideration for promotion was based on TPU [Troop program unit] participation in 1995. She claims that there seems to be no recognition of her present participation in the 190th Individual Mobilization Augmentation (IMA), Reinforcement Training Unit (RTU) Detachment at Fort Hood, Texas. She submitted the first page of a letter from the U.S. Total Army Personnel Command (AR-PERSCOM) to a Member of Congress, dated 17 April 2002; a letter from AR-PERSCOM to a Member of Congress, dated 23 May 2002; and a copy of U.S. Army Reserve Personnel Command Orders C 09-124487, dated 5 September 2001, in support of her application.

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

The applicant was appointed as a Reserve commissioned officer in the Transportation Corps on 15 August 1980 in the rank of second lieutenant. She was ordered to active duty on 17 September 1980 and was promoted to first lieutenant with an effective date and date of rank of 17 March 1982. The applicant was honorably released from active duty on 11 November 1983. After her release from active duty, she was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) in the rank of first lieutenant.

On 5 September 1986, she was released from the USAR Control Group (Reinforcement) and was assigned to the 341st Transportation Company Detachment. Orders show the applicant was transferred to the 80th Division on 15 October 1987.

She was promoted to captain with an effective date of 15 October 1987 and date of rank of 14 August 1987.

Orders show the applicant was transferred to Headquarters and Headquarters Company, 80th Division (Training) on 1 November 1994.

She was promoted to major with an effective date of 1 November 1994 and date of rank of 13 August 1994.

Orders published by Headquarters 80th Division (Institutional Training) reassigned the applicant to the U.S. Army Personnel Center (Reinforcement) effective 9 December 1996.

Evidence of record shows the applicant completed 20 years of commissioned service effective 14 August 2000. However, records also show that, as of 14 August 2000, the applicant had completed less than 18 years of qualifying service for non-regular retirement at age 60.

In a memorandum dated 8 March 2001, the applicant was notified that she had been considered by a DA Reserve Components Mandatory Selection Board that was convened on 6 September 2000. She was informed that she was not among those selected for promotion and that the board examined the performance portion of her official military record according to the Memorandum of Instructions provided by the Secretary of the Army. This memorandum also informed the applicant that she would receive two opportunities for promotion and that, if she remained eligible, should be considered for promotion the next year.

The applicant provided a copy of U.S. Army Reserve Personnel Command Orders C-09-124487, dated 5 September 2001, which attached her to the 190th IMA (RTU) for training and points only drill status effective 5 September 2001.

In a memorandum dated 28 February 2002, the applicant was notified that she had been considered by a DA Reserve Components Selection Board which convened on 5 September 2001 and was not selected for promotion.

Orders published by U.S. Army Reserve Personnel Command on 5 September 2002, discharged the applicant from the USAR in the rank of major effective 3 September 2002.

In the processing of this case, a staff advisory opinion was obtained from the Chief of Reserve Components Promotions.

This opinion states that the applicant does not have a basis for promotion consideration by a DA Special Selection Board. The opinion points out that the applicant's file, when reviewed by the 2000 and 2001 DA Reserve Components Selection Boards, included her pertinent documents through 31 July 1995. The opinion also states that there were no Officer Evaluation Reports (OERs) in the applicant’s file from 1 August 1995 through 9 December 1996. The opinion further points out that on 19 August 2002, the Officer Evaluations Support Branch declared that OERs for that period of service had not been rendered and issued non-rated statements for that time frame. The opinion indicates that non-rated statements are not a basis for special board consideration in accordance with Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other Than General Officers). It also stated that the applicant joined a TPU on 5 September 2001 and did not have any recent OERs that were eligible for consideration by the promotion selection board. In conclusion, the Chief of Reserve Components Promotions recommended that the applicant’s request be disapproved based on the facts presented.
A copy of the advisory opinion was provided to the applicant in order to allow her to submit comment or rebuttal. She contends that she did not have an opportunity to prepare her records before they were submitted to the selection board. She states that she was aware of her dual responsibility to maintain appropriate records and to make inquiry concerning her "promotability"; however, the total fault does not rest with her. She claims that if she had been connected to the Internet and the AR-PERSCOM site afforded her the information she needed, she would have kept abreast of the necessary information and responsibility accordingly. She also claims that, during the time in question, she suffered a heavy emotional period in her life, lost all of her worldly possessions and was unable to make contact with the appropriate military personnel. She contends that, at no time during her coordination with different offices at AR-PERSCOM, she was informed that her records were being reviewed for promotion consideration.

She further states that she presented her concerns to a Member of Congress and a gross injustice had taken place because her records were evaluated before a board for promotion to lieutenant colonel. The applicant claimed that if she had been given an effective opportunity to prepare and had been non-selected, she would have had to hold her peace. In conclusion, she desires an opportunity to present herself afresh before the lieutenant colonel board.

Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other Than General Officers) prescribes the policies and procedures for promotion of Reserve officers. The regulation provides that mandatory selection boards will be convened each year to consider Army Reserve officers in an active status for promotion to captain through lieutenant colonel.

Paragraph 3-5 of Army Regulation 135-155 covers selection board procedures. It states, in pertinent part, that advisory board and special selection boards wil convene on an "as needed" basis. These boards will be convened to reconsider officers who were either improperly omitted from consideration due to administrative error, or who were non-selected for mandatory promotion as a result of material error. Special selection board are conducted as an additional duty of regularly scheduled mandatory Reserve of the Army selection boards for the same competitive category.

Army Regulation 140-10 (Assignments, Attachments, Details and Transfers) covers subject policy and procedures and, in pertinent part, provides detailed procedures regarding removal of Army Reserve members from an active status. Paragraph 7-4 requires removal of officers who are twice not selected for promotion to chief warrant officer three, chief warrant officer four, captain, major and lieutenant colonel.

Title 10 United States Code, Section 14506 provides that an officer in the reserve grade of major who was considered but not recommended for promotion by two selection boards shall be transferred to the Retired Reserve, if qualified and makes application, or shall be discharged from his reserve appointment, if not qualified for transfer to the Retired Reserve, upon completion of 20 years of commissioned service.

Army Regulation 135-155, paragraph 4-29, states that a member whose removal from active Reserve status is required by law must be removed within the prescribed time limits unless eligible for retention based on remaining obligated service or based on more than 18 years but less than 20 years service.

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 applicant was appointed as a Reserve commissioned officer in the rank of second lieutenant on 15 August 1980.

2. The applicant was promoted to the rank of major effective 1 November 1994 with a date of rank of 13 August 1994.

3. Evidence of record shows the applicant completed 20 years of commissioned service on 14 August 2000. However, she had less than 18 years of qualifying service creditable for non-regular retirement at age 60.

4. Records show she was not selected to promotion to lieutenant colonel by DA Reserve Components Mandatory Selection Boards which convened on 6 September 2000 and 5 September 2001.

5. Based on the applicant’s two non-selections to lieutenant colonel, the law required that she be transferred to the Retired Reserve or discharged upon completion of 20 years of commissioned service. Inasmuch as the applicant did not qualify for transfer to the Retired Reserve, the law mandated her discharge from the Army Reserve.

6. The Board considered the applicant's contention that, if notified, she would have prepared her records. However, the applicant has presented no evidence that her records reviewed by the Fiscal Year (FY) 2000 and FY2001 DA Reserve Components Mandatory Selection Boards contained material errors or omissions which warrant promotion reconsideration.

7. Upon review of all the facts, the Board determined that there is no material error or injustice exists in this case. Therefore, there is no basis for her records to be reconsidered by a DA Special Selection Board for promotion to lieutenant colonel.

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

RVO____ GJW____ RJO_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002076999
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030213
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	131.0100
2.
3.
4.
5.
6.