MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 12 June 2003
         DOCKET NUMBER: AR2002080066

         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. Raymond V. O'Connor, Jr.		Chairperson
Mr. John P. Infante		Member
Ms. Eloise C. Prendergast		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: Correction to his date of rank for major from October 1997 to April 1994 with subsequent adjustment to his date of rank for lieutenant colonel.

APPLICANT STATES: That he was selected for promotion to major by the 1993 board, while assigned to the Individual Ready Reserve (IRR), with an effective date of April 1994. In February 1994, he joined a troop program unit and was not promoted for 3½ years because it was claimed that he had declined the promotion upon joining the National Guard unit. When he was transferred back to the Reserve he was promoted. He also states that in early 2000 he was notified that he was in the zone for consideration to lieutenant colonel and he later found out that he had not been considered because of his date of rank for major. In support of his application he submits copies of his letter to the Lieutenant Colonel Army Medical Department (AMEDD) Selection Board, a letter of support from his former commander, a letter from the Deputy Chief, Office of Promotions, Reserve Components, Total Army Personnel Command (PERSCOM), and a letter from his current commander.

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

He was appointed in the Reserve, AMEDD as a captain effective 20 April 1988, with 5 years, 6 months and 15 days constructive service credit.

He was considered and selected for promotion to major by the 1993 Reserve Components Selection Board (RCSB).

He was appointed in the Utah Army National Guard (UTARNG), Medical Corps Branch, as a captain effective 10 March 1994.

He transferred to the IRR effective 10 April 1997 and was promoted to major effective 11 April 1997. His date of rank for major was later adjusted to 6 October 1996.

On 16 March 2001, the Deputy Chief, Office of Promotions, Reserve Components, PERSCOM advised the applicant that promotion to major required 12 years time in service or 7 years time in grade and the promotion eligibility date (PED) was the later of the two dates. Therefore, his PED to major was 16 April 1997. He was recommended by the 1993 RCSB; however, before he could be promoted in the IRR he transferred to the Army National Guard. The National Guard was advised of his recommendation; however, because there were no major’s positions available he declined promotion for 3 years. Since a major’s position was still not available at the end of the 3 years, on 14 April 1997 he transferred to the IRR for promotion. Declining promotion is an option that only the officer can elect. When the officer elects this option he/she are advised that their date of rank will be adjusted. Based on this inquiry, his records were reviewed and the order transferring him to the IRR was located. The order showed an effective date of 5 October 1996; therefore, a correction memorandum was issued showing his date of rank for major as 6 October 1996. Based on the corrected date of rank, he is not eligible for promotion consideration to lieutenant colonel until 2002.

The Chief, Personnel Division, National Guard Bureau, expressed the opinion that the applicant was selected for promotion to major by the 1993 RCSB. The officer transferred to the ARNG before he could be promoted. He was not promoted during his 3 years in the Guard, as there were no major’s positions available to him. However, he was immediately promoted upon return to the Army Reserve in April 1997. The contentions appear to be, on the part of the Reserve, that the officer executed a declination of promotion upon entering the Guard. No one has been able to produce a hard copy documentation to back up this statement and the officer claims to not have signed any such paperwork. The Guard cannot make an informed decision, as they no longer maintain any of his files.

The advisory opinion was forwarded to the applicant for acknowledgement/
rebuttal on 14 April 2003. In his rebuttal dated 6 May 2003, he states that during his time in the ARNG he was initially advised that since he had been appointed as a captain, he was not in the zone for promotion to major. He was also told that he had not been in the unit long enough to be promoted. At no time was he advised of the lack of a major’s slot or was it suggested he decline his promotion. In early 2000, when he began to make inquiries, it was suggested that the lack of a major’s slot was the reason he was not promoted. It is his position that he did not knowingly decline a promotion.

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers. This regulation specifies that ARNG officers will be considered for promotion by mandatory promotion boards. The regulation also specifies that a voluntary promotion delay may be granted for up to 3 years. It also specifies that if an officer accepts a promotion prior to the expiration of a voluntary delay of promotion, the effective date will be the date of acceptance and extension of Federal Recognition. It is further specified that if an officer has a maximum time in grade date prior to the acceptance date during a delay, he/she is not entitled to their original maximum time in grade date.

The regulation also specifies that at the end of an approved period of delay, an ARNG officer must choose to be promoted in the higher grade if a higher-grade position is made available. If there is no higher-grade position, and the officer wants to be promoted, his/her Federal recognition will be withdrawn and they will be transferred to the IRR and promoted. If they choose to decline the promotion they will be removed from the promotion list.

The regulation further specifies that officers who transfer from ARNG status to Reserve TPU status at the expiration of an approved delay period are promoted effective the date of the transfer.

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 further correction to his date of rank for major. He has not shown error, injustice, or inequity for the relief he now requests.

2. The Board notes his contentions; however, as the applicant was advised in 2001, declining promotion is an option that only the officer can elect. The applicant elected to join the ARNG and continued to serve for 3½ years without being promoted. It is also noted that when he was appointed in 1988, he knew or should have known that effective 5 July 1993, he would complete 7 years time in grade; however, he would not have completed 12 years time in service until 16 April 1994 and he would be eligible for promotion consideration to major as early as 1994.

3. It is also noted that a search to locate an actual copy of the declination has met with negative results; however, by the applicant’s own admission he was advised in late 1994 that he had been selected for promotion to major and did not request a transfer to accept the promotion until October 1996. It is also noted that he waited until 2000 to inquire about his date of rank for promotion and, based on that inquiry, a review of his records was completed and his date of rank was adjusted accordingly. The applicant’s promotion to major with a date of rank of 6 October 1996 has been correctly established. He has not shown otherwise.

4. Based on the correction to his date of rank for major, he was eligible for promotion consideration to lieutenant colonel in 2002. The Board is not aware of the outcome of that consideration and the applicant has not provided evidence of his consideration, selection, or non-selection under the 2002 criteria.

5. 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.

6. 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

_ELP____ _JPI_____ _RVO__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002080066
SUFFIX
RECON
DATE BOARDED	20030612
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	131.00
2.	131.05
3.
4.
5.
6.