PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 28 August 2003
         DOCKET NUMBER: AR2002081099


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
MR. Richard P. Nelson		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Thomas Lanyi		Member
Mr. Harry B. Oberg		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests revocation of his separation orders and return to Active Guard/Reserve (AGR) status based on an adjusted Mandatory Removal Date (MRD). He further requests “recognition and credit” from the date he was separated to his adjusted MRD.

3. In a letter dated 2 July (with addendum, dated 4 July) 2003, the applicant further amended his application by requesting “unique special consideration” that the computation of his MRD should “remain reflected as March 2003.”

4. The applicant also requests credit for active duty performed during the January-February, 2003, time frame in support of the NATO School, Oberammergau, Germany. However, the applicant’s records do not contain orders, pay records, travel vouchers, or any other documents regarding this additional period of service. Therefore, the Board will not discuss this issue further in these proceedings. The applicant may submit an application to the Army Board for Correction of Military Records (ABCMR) regarding this additional service at a later date, with the appropriate orders, pay and personnel records, documenting this period of active duty.

5. The applicant states that he was erroneously separated from AGR status based on a MRD resulting from his non-selection for promotion to colonel/pay grade O-6. He further states that his non-selection was a result of a material error in his military personnel records, that the error was corrected and that he was subsequently promoted to colonel/pay-grade O-6. Lastly, he states that he submitted a DA Form 4187 (Personnel Action), requesting a one year extension of his MRD until the results of the standby promotion board, considering him for promotion to colonel/pay grade O-6, were known.

6. The applicant’s military records show that he enlisted in the Minnesota Army National Guard on 19 August 1969. After applying for, and attending, Officer Candidate School at Fort Benning, Georgia, the applicant was commissioned a Second Lieutenant of Field Artillery on 3 September 1971. He remained in the Minnesota Army National Guard, drilling, training, and attending various schools until 23 October 1983, when he was separated for the purpose of transferring to the US Army Reserve (USAR). On 1 September 1986, the applicant was ordered to active duty in AGR status in the USAR where he remained until his release from active duty on 30 September 1999.

7. The applicant was not selected for promotion to colonel/pay grade O-6 by Department of the Army Reserve Component Selection Boards which met in 1995, 1996, 1997, and 1998. As a result, he was released from active duty on 30 September 1999, based on MRD, upon attaining 28 years of commissioned service. Orders published by the Army Reserve Personnel Command (AR-PERSCOM) show that as of 30 September 1999, the applicant had completed a total of 15 years, 8 months, and 8 days of active federal service.
8. On 24 November 1999, the ABCMR, in Docket Number AR1999032498, concluded that the applicant’s records contained errors when reviewed by the 1995 Reserve Component Selection Board and should be corrected, then submitted to a special selection board for promotion reconsideration to colonel/pay grade O-6.

9. ABCMR Docket Number AR1999032498 further directed that, if selected for promotion, that his records be further corrected by showing he was promoted to the next higher grade on his date of eligibility therefore, as determined by appropriate Departmental officials using the criteria cited, provided he was otherwise qualified and met all other prerequisites for promotion.

10. Lastly, ABCMR Docket Number AR1999032498 directed in “Recommendations 4.a. through 4.c.” that, if the applicant was separated because of his non-selection, his record be further corrected to show:

         “a. that his discharge or transfer to the Retired Reserve, as applicable, is void, and of no force or effect; that he was credited with qualifying service for Reserve retirement for his respective retirement years, from the dates of his now-voided discharge or transfer to the Retired Reserve to the date of his return to the active Reserve;

         b. that an adequate explanation be placed in his official personnel files to show that the gap in his officer evaluation reports, from the dates of his now-voided discharge transfer to the Retired Reserve to the date of return to active Reserve status, was not caused by any fault on his part, and to insure that he is not prejudiced thereby in the consideration of any future personnel actions; and

         c. that all documents related to his now voided non-selection for promotion, and his discharge or transfer be expunged from his official military records.”

11. The applicant was selected for promotion to colonel/pay grade O-6 under 1997 criteria by Department of the Army Special Selection Board, 2001SS04R1. The board recessed on 28 March 2001 and the results were approved by the President on 14 June 2001. The applicant’s promotion eligibility date was determined to be 2 March 1998, based on Senate Confirmation of the 1997 Colonel Army Promotion List. The applicant was subsequently promoted to colonel/pay grade O-6 on 2 April 2002 with a date of rank of 2 March 1998.

12. There is no evidence that shows that the applicant was granted service credit, back pay or retirement points as a result of being selected for promotion as directed in ABCMR Docket Number AR1991032498, described in paragraph 10, above.
13. Title 10 United States Code, Section 14507 states the statutory provision for maximum years of service and provides that an officer in the Reserve grade of lieutenant colonel who is not on a list of officers recommended for promotion to the next higher grade shall be transferred to the Retired Reserve or discharged on the first day of the month after the month in which the officer completes 28 years of commissioned service.

14. Title 10 United States Code, Section 14507 states the statutory provision for maximum years of service and provides that an officer in the Reserve grade of colonel who is not on a list of officers recommended for promotion to the next higher grade shall be transferred to the Retired Reserve or discharged on the first day of the month after the month in which the officer completes 30 years of commissioned service.

15. Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers. This regulation specifies that promotion reconsideration by a standby promotion advisory board may only be based on erroneous nonconsideration or material error which existed in the record at the time of consideration. Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's nonselection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion. The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for nonselection, except where an individual is not qualified due to noncompletion of required military schooling.

16. Section 14514 of Title 10 governs special selection boards and correction of errors. Subsection 14502e(2) states that an officer who is promoted to the next higher grade as the result of a special selection board convened under this section shall, upon such promotion, have the same date of rank, the same effective date for the pay and allowances of that grade, and the same position on the reserve active-status list as the officer would have had if the officer had been recommended for promotion to that grade by the selection board which would have considered, or did consider, the officer.

17. Army Regulation 140-10 sets forth the basic authority for the assignment, attachment detail, and transfer of USAR soldiers. Chapter 7 of the regulation relates to the removal of soldiers from an active status and states , in pertinent part, that soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.

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CONCLUSIONS:

1. The Board considered the applicant’s request to revoke his separation orders and return him to AGR status based on an adjusted MRD. The Board also considered the applicant’s request to be granted “recognition and credit” from the date he was separated to his adjusted MRD. Finally, the Board considered the applicant’s request for “unique special consideration” that the computation of his MRD should “remain reflected as March 2003.”

2. Evidence of record shows that the applicant’s date of initial appointment as a 2LT was 3 September 1971. It is this date that, in accordance with the statutory provisions of Title 10 United States Code, determines the MRD of a USAR commissioned officer.

3. The Board noted that the applicant was not selected for promotion to colonel/pay grade O-6 by four duly constituted Reserve Component Promotion Selection Boards. Accordingly, he was released from active duty on 30 September 1999, having served 28 years, 27 days of commissioned service.

4. The Board also noted that the applicant’s MRD would have been 3 September 2001, based on 30 years of commissioned service, had he been selected for promotion to the next higher grade.

5. Evidence of record shows that the applicant was considered, and selected, for promotion to colonel/pay grade O-6 by a Department of the Army Special Selection Board and that his effective date of promotion was 2 March 1998. As such, he is entitled to have his records corrected to reflect this promotion. He is also entitled to have his records corrected to show his separation date as 30 September 2001, and completion of 17 years, 8 months and 8 days of active Federal service, as a result of this promotion.

6. There is no evidence recommendations 4.a. through 4.c. of ABCMR Docket Number AR1991032498 were implemented. Therefore, these recommendations are now considered null and void and will be replaced by new recommendations of this Board.

7. Based on the foregoing the Board determined that:

         a. AR-PERSCOM orders C-06-700729, dated 10 June 1999, releasing the applicant from active duty on 30 September 1999, should be revoked.

         b. The associated DD Form 214, with a separation date of 30 September 1999 should be voided.

c. The applicant should be restored to AGR status, in pay grade O-6, effective 1 October 1999.

         d. The applicant is entitled to the difference in back pay and allowances between pay grade O-5 and pay grade O-6 for the period 2 March 1998 through 30 September 1999.

         e. The applicant is entitled to two years constructive service credit for the period 1 October 1999 through 30 September 2001 and he is entitled all back pay and allowances for the same period in pay grade O-6.

         f. The applicant is entitled to reassignment to the US Army Reserve Control Group (Retired Reserve) effective 1 October 2001, in pay grade O-6, as that is more advantageous to the applicant than discharge.

8. There is no evidence of record that shows the applicant’s MRD was adjusted to March, 2003. There is also no authority to extend the applicant’s service beyond 30 September 2001. The Board notes the applicant’s DD Form 4187, dated 23 July 1999, requesting a one year extension of his MRD. The Board further notes that, had this request for extension been approved, it would have extended the applicant’s MRD to 30 September 2000, not March of 2003. As such, the applicant is not entitled to have his records corrected to show an extension of his MRD beyond 3 September 2001, or his service beyond 30 September 2001.

9. In view of the foregoing, the applicant’s records should be corrected, but only as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by:

         a. Revoking AR-PERSCOM orders C-06-700729, dated 10 June 1999, releasing the individual from active duty on 30 September 1999.

b. Voiding the individual’s DD Form 214 releasing him from active duty on 30 September 1999.

         c. Restoring the individual to AGR status effective 1 October 1999 and showing that he served in AGR status in the USAR until 30 September 2001.

         d. Correcting the individual’s military records to show that he was promoted to colonel/pay grade O-6 effective 2 March 1998.

         e. Granting the individual one retirement point for each day of AGR service between the 1 October 1999 and 30 September 2001.

         f. Granting constructive credit for service as an AGR officer in pay grade O-6 for the period 1 October 1999 through 30 September 2001.

         g. Preparation of new orders by AR-PERSCOM, releasing the individual from active duty on 30 September 2001 and assigning him to the US Army Reserve Control Group (Retired Reserve) effective 1 October 2001.

         h. Preparation of a new, corrected DD Form 214, with a separation date of 30 September 2001, to replace the DD Form 214 issued to the individual with a separation date of 30 September 1999.

2. Upon completion of all the actions in paragraph 1a through 1h, above, that Defense Finance and Accounting Service audit the individual’s pay account and pay him all monies to which he is entitled.

3. That so much of the application pertaining to extension of the individual’s MRD to March 2003 be denied.

BOARD VOTE:

___hbo__ ___tl____ ____aao_ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __________Arthur A. Omartian________
                  CHAIRPERSON

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INDEX

CASE ID	AR2002081099
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030628
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.