MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 3 June 2003
         DOCKET NUMBER: AR2002081331

         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
MR. W. w. Osborn, Jr.		Analyst

The following members, a quorum, were present:

Ms. JoAnn H. Langston		Chairperson
Ms. Jennifer L. Prater		Member
Mr. Paul M. Smith		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 his transfer to the Retired Reserve be revoked, that he be reinstated to active reserve status as an Individual Mobilization Augmentee (IMA) and that he be reconsidered for promotion to lieutenant colonel.

APPLICANT STATES: He contends that he was involuntarily placed in the Retired Reserve even though he was qualified for retention in accordance with Army Regulation 135-155, paragraphs 4-34d and 4-34f. He contends that the transfer caused his name to be removed from the September 2002 Reserve Components Selection Board. He argues that he should have been chosen for selective retention because his skills were necessary and critical to mission accomplishment. He contends that the fact that he is again serving on active duty as a recalled Reservist demonstrates that he should have been selectively retained. He submits copies of his orders, the favorable endorsements he obtained concerning his request for selective retention and an exchange of email messages about his status and pending separation.

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

He was a career Army Reserve (USAR) officer who was considered and non-selected for promotion to lieutenant colonel by a mandatory Reserve Components Selection Board (RCSB) which convened on 6 September 2000. He had not met the military education requirement.

He was mobilized on 25 November 2001 in support of Operation Noble Eagle for 365 days of active duty, unless extended or terminated by proper authority. He was assigned to the Crisis Action Team (CAT), Army Operations Center.

On 28 February 2002 he was notified of his second non-selection by the RCPB that convened on 21 September 2001. A 13 April 2002 letter from the Army Reserve Personnel Command provided the applicant with a detailed explanation of the options available to him.

On 17 April 2002 he submitted a request that he be chosen for selective retention on active duty. The Executive Director of the Office of the Chief of Engineers noted that the applicant was valuable to the operation because he was one of four Reservists that manned the 24/7 CAT desk officer position. The applicant's retention was considered essential because "Engineer majors with a Top Secret clearance are a critical and rare commodity.…" He strongly recommended that the applicant be retained on active duty. The Deputy Commander, Army Corps

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of Engineers wrote that considering the applicant's experience, the need to train a replacement and the specific clearance requirements it was in the best interest of the Army to retain him. The Director of Human Resources and the Director of Operations, Readiness and Mobilization, Office of the Deputy Chief of Staff for Operations (G-3) repeated the favorable recommendation.

In a 13 June 2002 memorandum the Deputy Chief of Staff for Personnel (G-1) noted that only the Secretary of the Army had the authority to authorize selective retention and that only a very limited number of Medical Department officers were currently being considered. The applicant's request was returned without action.

The applicant completed his military education requirement by completion of 50 percent of the Command and General Staff course on 26 August 2002.

He was released from active duty on 11 August 2002 and transferred to the USAR Control Group (Reinforcement).

Army Regulation 135-155 Paragraph 4-34 states that an officer twice non-selected must be removed, but may be selectively continued to meet the needs of the Army. Those not selectively continued must be separated. The date depended upon the individual's status relative to 20 years commissioned service, 20 years qualifying service for pay at age 60 and the approval date of the relevant promotion board. In this case the applicant had already reached 20 years commissioned service and 20 qualifying years and, therefore had to be separated by the first day of the seventh month after the approval of the board.

Title 10, United States Code, § 14507 provides that, unless retained under other provisions of the law, Reserve lieutenant colonels and colonels who are not selected for promotion must be separated by discharge or retirement. The other provisions dealing with retention are contained in §14701 that provides for selective retention boards, §14702 that applies to National Guard officers in state adjutant general or deputy adjutant general slots. Section 12646 provides that officers with 18 years of creditable service for retirement with pay at age 60 may be retained.

During the processing of this case an advisory opinion was obtained from the Total Army Personnel Command. The Chief, Special Actions Branch, Office of Promotions, Reserve Components noted that the applicant had twice been non-

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selected because he had not met the educational requirement. As a two-time non-selectee he had to be discharged or retired. Since the selection board had
been approved on 1 February 2002, the applicant had to be separated on or about 1 September 2002. The applicant's request for selective retention was returned without action because, at that time, the Secretary of the Army had authorized the selective retention of only officers in the medical field. The advisory opinion was provided to the applicant for comment.

In rebuttal the applicant contended, in effect, that the failure to consider his request for selective retention was unjust because he had received favorable, high level endorsements and because his skills were so in demand that he was subsequently returned to active duty on a Temporary Tour of Duty. Furthermore he contends that his mobilization was essentially a contract for 365 day of active
duty, that he was required to request demobilization. He believes that if he had been retained for the full year he would have been considered and selected for promotion. He contends that keeping him on active duty for the full year would have constituted retention "under some other provision of the law." He adds that shortly after he was demobilized the policy "which required me to sign" was rescinded.

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, it is concluded:

1. The applicant was appropriately separated and his request for selective retention was not unjustly returned without consideration. There was no authority at that time to consider him for selective retention.

2. His orders to active duty were not a contract for employment and would not have fulfilled the requirement that he be separated or retired unless retained under some other provision of the law. Those other provisions are spelled out as noted above.

3. 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.

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4. 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

__ JLP ___ __ JLP ___ __ PMS __ DENY APPLICATION



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

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INDEX

CASE ID	AR2002081331
SUFFIX
RECON
DATE BOARDED	20030603
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
REVIEW AUTHORITY
ISSUES 1.	110.03
2.
3.
4.
5.
6.