PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 1 May 2003
         DOCKET NUMBER: AR2002081998


         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Thomas B. Redfern		Chairperson
Ms. Linda D. Simmons		Member
Mr. John T. Meixell		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, in effect, a correction to his lieutenant colonel (LTC) date of rank (DOR); an adjustment to his Pay Entry Basic Date (PEBD) to account for a break in service between 1 September 2001 and 20 July 2002; and service credit, retirement points, and back pay for this break in service period.

3. The applicant states, in effect, that he was twice not selected for promotion by Department of the Army (DA) Promotion Selection Boards (PSBs), and as a result he was separated in accordance with regulatory guidance on 1 September 2001. He requested promotion reconsideration and was selected for promotion to LTC by a Special Selection Board (SSB) in May 2002. As a result, he was reappointed in the New Hampshire Army National Guard (NHARNG). However, this series of events resulted in his having a 10 month and 20 day break in service that resulted in an adjustment to his PEBD and LTC DOR. He now asks that his PEBD be adjusted to 15 May 1981, as it was originally before the break in service; and that his LTC DOR be adjusted to 8 February 2001; the date he would have been promoted if he had been selected by the original PSB in 2000. He also further asks that he be credited with 36 retirement points and 10 months of pay for drills missed during the period of his break in service.

4. The applicant’s military records show that as of the date of his application, he was serving as a LTC in the NHARNG.

5. The applicant was considered and not selected for promotion to LTC by the 2000 and 2001 DA LTC Reserve Component (RC) PSBs. On 5 September 2001, Orders Number 248-012, issued by the Office of the Adjutant General (OTAG), NHARNG, directed his honorable separation from the NHARNG and the United States Army Reserve (USAR), effective 1 September 2001. These orders confirm that the applicant’s PEBD was 15 May 1981 as of the date the orders were published.

6. The applicant requested promotion reconsideration, and on 15 May 2002, he was notified that he had been reconsidered and selected for promotion to LTC by a SSB that adjourned on 28 September 2001, under the criteria used by the 2000 DA LTC RC PSB. He was also informed that the effective date of his promotion would be the later of 8 February 2001, or the date Federal Recognition was extended in the higher grade.

7. On 20 July 2002, the applicant was reappointed a LTC in the NHARNG and granted Federal Recognition. As a result, this date was established as his LTC DOR.

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8. The Deputy Director of Personnel, OTAG, NHARNG, provided a 16 October 2002 memorandum in support of the applicant. It states that the applicant suffered an injustice as a result of the 10 month and 20 day forced break in service. It further states that as a result, the applicant’s LTC DOR and PEBD were adjusted, and he received no retirement points or pay because he was not allowed to drill during this period. Finally, it states that the injustice done to the applicant should be corrected by deleting the break in service in question, and adjusting his LTC DOR and PEBD to reflect what they would have been had he been properly promoted to LTC based on his selection by the 2000 DA LTC RC PSB. In addition, it recommends that the applicant be granted 36 additional retirement points, and that he receive 10 months of back pay for the drills he could not attend during his forced break in service.

9. In connection with the processing of this case, an advisory opinion was obtained from the Chief of the Personnel Division, National Guard Bureau (NGB). It states that the NGB recommends approval of the applicant’s request to have his PEBD and LTC DOR adjusted based on his selection for promotion by a SSB. It indicates that the applicant was separated on 1 September 2001, as a result of twice being not selected for promotion to LTC. However, he requested promotion reconsideration, and was selected for promotion to LTC by a SSB in May 2002, which resulted in his being reappointed in the NHARNG on 20 July 2002. It further recommends that the applicant be granted a retroactive correction of his PEBD to 15 May 1981, and to his LTC DOR to 8 February 2001. Finally, the NGB opinion indicates that had the applicant been selected for promotion by the original 2000 PSB, he would not have had a break in service and he would not have missed drills during the period. The applicant was provided a copy of this advisory opinion. On 21 April 2003, he provided a response concurring with the contents of the NGB advisory opinion.

CONCLUSIONS:

1. The evidence of record confirms that the applicant was separated from the NHARNG and USAR on 1 September 2001, as a result of twice being not selected for promotion to LTC by DA RC PSBs in 2000 and 2001. In May 2002, the applicant was selected for promotion to LTC by a SSB under the criteria used by the 2000 DA RC PSB. As a result, he was reappointed in the NHARNG and granted Federal Recognition as a LTC on 20 July 2002.

2. The evidence clearly establishes that had the applicant been originally promoted by the 2000 DA LTC RC PSB, his LTC DOR would have been
8 February 2001, and he would not have been separated and experienced a break in service between 1 September 2001 and 19 July 2002. As a result, his PEBD would have remained 15 May 1981, and he would have been allowed to participate in drills and earn service credit and retirement points during this period.
3. The Board especially notes the recommendations of the NHARNG and NGB that state, in effect, that the applicant’s record should be corrected to show he was promoted on 8 February 2001. Further, that he had no break in service and as a result his PEBD should be adjusted back to 15 May 1981. In addition, these officials recommend that the applicant receive service credit, retirement points, and credit for participating in scheduled drills for the period 1 September 2001 through 19 July 2002, as if he had been originally promoted as a result of his selection by the 2000 DA LTC RC PSB.

4. In view of the facts of this case, the Board concurs with the relief recommended in the NGB advisory opinion and by OTAG, NHARNG. Thus, it finds that it would be appropriate to correct the applicant’s record by voiding his
1 September 2001 separation from the NHARNG and USAR; adjusting his PEBD back to 15 May 1981; showing that he was promoted to LTC with a promotion effective and DOR of 8 February 2001; and by granting him service credit for the period 1 September 2001 through 19 July 2002, to include 36 retirement points and back pay due for drills he would have been scheduled to attend during this period.

5. Although the Board has no authority to correct State ARNG records, governed under Title 32, the Board is of the opinion that insofar as the Department of the Army is concerned, it would be in the interest of justice to correct the ARNG records of the individual concerned as recommended below.

RECOMMENDATION:

1. Insofar as records of the New Hampshire Army National Guard are concerned, the Board recommends that The Adjutant General of the State of New Hampshire correct the records of the individual concerned by:

a. voiding his honorable separation of 1 September 2001, by revoking Orders Number 248-012, dated 5 September 2001, and showing that he has continued to serve in an active status in the New Hampshire Army National Guard through the present with no break in service;

b. granting him service credit, to include 36 retirement points, for the period 1 September 2001 through 21 July 2002, and adjusting his Pay Entry Basic Date back to 15 May 1981 accordingly;

c. by showing he was promoted to the rank of lieutenant colonel, effective and with a date of rank of 8 February 2001; and

d. by correcting his pay records based on the corrections made as outlined in the a through c above.

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2. That the Chief of the National Guard Bureau grant the individual concerned Federal Recognition in the grade of lieutenant colonel, effective 8 February 2001.

3. That the individual concerned be provided all back pay and allowances due as a result of the corrections made by The Adjutant General of the State of New Hampshire, to include back pay due for drills he would have attended during the period 1 September 2001 through 21 July 2002, and any back pay due as a result of the change in his promotion effective date and date of rank to
8 February 2001.

BOARD VOTE:

___jm ___ ___lds __ ___tbr___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ____Thomas B. Redfern___
                  CHAIRPERSON

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INDEX

CASE ID	AR2002081998
SUFFIX
RECON
DATE BOARDED	2003/05/01
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	2001/09/01
DISCHARGE AUTHORITY	NGR 600-200
DISCHARGE REASON	2 X Promotion Passover
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 21	102.0700
2. 314	131.0400
3. 303	129.0100
4.
5.
6.