MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 24 June 2003
         DOCKET NUMBER: AR2002080387

         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. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Ms. Margaret K. Patterson		Chairperson
Mr. Frank C. Jones		Member
Mr. Ronald E. Blakely		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: That his date of rank (DOR) for captain (CPT/0-3) be adjusted from 25 March 2001 to 1 July 1999.

APPLICANT STATES: In effect, that his DOR for captain should be adjusted from 25 March 2001 to 1 July 1999. In support of his application, he submits two officer record briefs (ORBs).

In his letter of support, he requests that his original DOR of 1 July 1999, be reinstated under the provisions of Title 10, United States (US) Code, section 741, paragraph D, which allows for DORs to be adjusted for officers returning to active duty (AD) regarding qualifications and experience. He was promoted to captain, Regular Army (RA), Military Intelligence, on 1 July 1999. His DOR was adjusted upon his return to AD to a date of 25 March 2001 to reflect 20 months of service in the Reserve. This adjustment was inaccurate and did not reflect the spirit of Title 10, US Code, section 741. He was fortunate during his time on AD to be selected for positions above his previous rank. He spent over 21 months in 0-3 CPT coded positions during his tenure as a first lieutenant (1LT/0-2) from 1997 to 1999. This experience alone should be more than adequate to equate for the time spent in the Ready Reserve.

As a 1LT/0-2, he was selected for an 0-3 CPT coded internship where he received a Masters in Business Administration (MBA) and was subsequently selected to replace a major (MAJ/0-4) to become the Chief of Resource Management of Weed Army Community Hospital. He also served as a Squadron S-2 for several months at the National Training Center as 1LT/0-2 promotable (P) in an 0-3 CPT coded position. Lieutenants were currently being promoted a year before he was promoted for the exact reason set forth in this request. He is now forced to wait an additional 3 years to be eligible for promotion to major, even though he was only in the Reserve for 20 months. If his request is not granted, his "Year Group (YG)" has effectively been changed from 1995 to 1998. He requests that his qualifications and experience be considered and his current DOR be adjusted to 1 July 1999 or at a minimum be adjusted by 10 months to 25 June 2000, to reflect credit for current promotion practices.

EVIDENCE OF RECORD: The applicant's military records show he was commissioned as a second lieutenant in the USAR on 14 May 1995, in the Medical Service Corps. He was ordered to AD on 22 May 1995.

He was commissioned as a Regular Army officer on 5 July 1995.

He was promoted to captain with an effective date and DOR of 1 July 1999.



The applicant's records contain a copy of an officer evaluation report (OER) which shows that he was rated as a military intelligence officer. His records also contain a copy of his DA Form 1059 (Service School Academic Evaluation Report) which shows that he attended the Military Intelligence Officer Transition Course. His area of concentration (AOC) was later changed to Military Intelligence.

He was released from AD on 14 June 2000, under the provisions of Army Regulation 600-8-24, paragraph 3-5, for miscellaneous reasons in the rank of captain. He completed 7 years and 29 days of creditable service.

On 15 June 2000, he was appointed as a Reserve officer in the rank of captain.

After 21 month-break in service, he was ordered to AD on 20 March 2002, in the rank of captain for a period of 3 years, in the Military Intelligence Branch.

PERSCOM published orders on 6 May 2002, announcing his DOR as 25 March 2001.

In the processing of this case an advisory opinion was provided by the Deputy Chief, Promotions Branch, PERSCOM. The opinion stated that the applicant had requested that his DOR be adjusted to 1 July 1999. He was recalled to AD under the Limited Call to AD Program on 10 March 2002. A DOR determination was computed and determined to be 25 March 2001, in accordance with Army Regulation 600-8-29, Section V, paragraph 1-36. He was given 350 days of prior service as a captain from 1 July 1999 to 14 June 2000. When the applicant returned to AD his DOR was computed by subtracting 11 months and 15 days (according to the Julian Calendar) from his entry on AD date of 10 March 2002 that would give an adjusted captain DOR of 25 March 2001. PERSCOM concluded that the applicant's DOR was correct and recommended that his request be denied.

The applicant was provided a copy of this opinion for possible comment prior to consideration of his case.

In his rebuttal, the applicant stated that there was no dispute on the calculation itself. The method of calculation was unfair and personally unacceptable and if correct, that he was misinformed by PERSCOM during the application process. This method of calculation would not allow him to be looked at for promotion until the 1998 YG which would be looked at in 2007 for the below the zone look. That effectively moves him 3 years to the right, although he was only off of AD for a year and a half. The method of calculation does not reflect the current (1997 and after) practice of accelerated promotions to CPT. If an officer is a 1995 YG and is off active duty for 20 months, he should be looked at for promotion

with either the 1996 or 1997 YG, not the 1998 YG. This is because officers in the 1997 and after YGs were promoted 6 to 10 months earlier than officers in the 1996 and prior. He brought this to the attention of PERSCOM and was informed that it does seem unfair but that "maybe he should have never left active duty." He should not be punished for volunteering to return to AD.

He further states that this calculation method was not explained prior to his recall approval. He was informed that his DOR would be adjusted to match up with either the 1996 or 1997 YG. This had a direct impact on his decision to decline a job offer from another government intelligence agency. He requests that this Board consider adjusting his DOR by at least 6 months or to 25 September 2000 which would allow him to be seen for promotion with a YG more reflective of his total time on AD.

Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes policies and procedures governing transfer and discharge of officer personnel. Chapter 3 of this regulation provided for unqualified resignation. It states that, in pertinent part, that an officer of the active Army may tender a resignation under the provisions of this section, and that such resignations would not be accepted unless, on the requested date of separation, the officer has fulfilled the service obligation specified.

Army Regulation 600-8-29 (Officer Promotions) prescribes the policies and procedures for promotion of officers on active duty. This regulation applies to Active Army, Army National Guard, and US Army Reserve commissioned and warrant officers on an active duty list (ADL). Section V pertains to precedence and DOR.

Paragraph 1-36 pertains to DOR responsibilities. The adjusted DOR (ADOR) is used to determine the eligibility of officers on the ADL for promotion. The Deputy Chief of Staff for Personnel (DCSPER) establishes the criteria used to determine the ADOR and promotion eligibility date (PED). Designation of ADOR and PED within basic policies and procedures prescribed by this regulation is a command responsibility. Designation of ADOR and PED not anticipated by a provision of this regulation will be determined on an individual basis by the DCSPER or his or her designee. Except as indicated, PERSCOM will determine ADOR and PED prescribed in this regulation. To assist PERSCOM in determining ADOR or PED, field commanders with MPD/PSC must submit copies of DD Form 220 (Active Duty Report) and active duty orders. Additionally, if available, field commanders must also submit DD Form 214 (Certificate of Release of Discharge from Active Duty), DA Form 1383 (Annual or Terminal Statement of Retirement Points), NGB Form 23 (Retirement Credits Record), AGUZ Form 115 (Statement of Retirement Points), letter orders on transfers between Reserve Control Groups, or units, and United States Army Reserve (USAR) promotion letters for all officers whose ADOR and PED that would be determined by PERSCOM.
Title 10, US Code, section 741, pertains to rank, commissioned officers of the Armed Forces. Paragraph D(1), states that the DOR of an officer of the Army, Navy, Air Force, or Marine Corps who holds a grade as a result of original appointment shall be determined by the Secretary of the Military Department concerned at the time of such appointment. The DOR of an officer who holds a grade as the result of an original appointment and who at the time of such appointment was awarded service credit for prior commissioned service or constructive credit for advanced education or training, or special experience shall be determined so as to reflect such prior commissioned service or constructive service. Determination by the Secretary concerned under this paragraph shall be made under regulations prescribed by the Secretary of Defense, which shall apply uniformly among the Army, Navy, Air Force, and Marine Corps.

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 Board notes the applicant’s contention that his DOR should be adjusted to 1 July 1999, or at least 6 months, or to 25 September 2000 which would allow him to be seen for promotion with a YG more reflective of his total time on AD. The Board also notes that the applicant requests that his qualifications and experience be considered.

2. The applicant was ordered to active duty in the rank of captain in the Military Intelligence Branch after 21 months in the Army Reserve.

3. PERSCOM stated that the applicant was recalled to AD on 10 March 2002 and that the DOR determination was computed and determined to be 25 March 2001, in accordance with regulation. The applicant was given 350 days of prior service as a captain from 1 July 1999 to 14 June 2002. His DOR was computed by subtracting 11 months and 15 days (according to the Julian Calendar) from his entry on AD that gave him an ADOR of 25 March 2001.

4. The Board noted the applicant's mention of Title 10, US Code, section 741 in regards to DOR adjustment for officers returning to AD regarding qualifications and experience. However, the section stated that an officer who holds a grade as a result of original appointment should be determined by the Secretary of the Military Department. The applicant was awarded service credit for his prior commissioned service. The proper authorities determined his adjustment and his DOR was adjusted accordingly.





5. The Board notes that there has been no additional information provided that would support reopening or revoking the determination made by PERSCOM of the applicant’s ADOR in this case. Therefore, this Board concurs with the opinion of PERSCOM.

6. The applicant has failed to show, through the evidence submitted with his application or the evidence of record, that a material error was made in the adjustment of his DOR due to his prior service, qualifications, and experience.

7. 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.

8. 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

__mp___ __fj____ __rb____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002080387
SUFFIX
RECON
DATE BOARDED	20030624
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	21
2.
3.
4.
5.
6.