MEMORANDUM OF CONSIDERATION


         IN THE CASE OF
        

         BOARD DATE: 3 June 2003
         DOCKET NUMBER: AR2003084738

         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. Joseph A. Adriance		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 the decision of the 1994 Selective Early Retirement Board (SERB) be reversed; that he be returned to active duty as a COL, or that his retired grade be changed to colonel (COL); and that he be provided any back pay and allowances due as a result.

APPLICANT STATES: In effect, that the SERB incorrectly determined that he had completed 28 years of active commissioned officer service. However, the record should have reflected that he completed only 19 years of active commissioned officer service. The rest of his military service included two years of active duty in an enlisted status, two years of active service in a warrant officer status, and five years of service in an inactive states in the Army National Guard (ARNG) and Untied States Army Reserve (USAR).

The applicant also claims that in 1993, he was informed by the Aviation Branch Manager, Officer Personnel Management Directorate (OPMD), Total Army Personnel Command (PERSCOM), that his military records were forwarded to the 1993 COL selection board for consideration for promotion to COL. The branch manager also indicated that a review of his record reflected that he was very competitive for promotion. The COL selection board was completed and he, like many others under consideration, waited for the board results to be released. Approximately two weeks before the COL promotion selection board released its results, he was informed that he had been identified for early release by the SERB.

The applicant claims that once he was notified of the SERB selection, he contacted his branch manager at PERSCOM, in an effort to determine the reason for the action. The branch manager informed him that he and other members of the Aviation Branch were surprised by the SERB results. He claims the branch manager told him that in his case, the COL selection board results had to be adjusted because the SERB results took precedence. This indicated to him that he had been selected for promotion to COL, but removed from the list based on the SERB results. The branch manager informed him that he would look into the basis for his SERB selection and phone him with the results. After several days, he was contacted by the branch manager and informed that the likely reasons for his SERB selection were that the records reviewed by the SERB incorrectly listed his years of active commissioned service; his
non-traditional military service career with numerous changes created confusion for the SERB members; and a previous recall board had returned him to active duty in 1980, but because of incorrect military records, he was not selected for promotion to major by two selection boards. Although these non-selections were overturned by this Board, it resulted in a year delay in his professional career development throughout the rest of his active duty service.

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The applicant provides his response to each of the issues raised by his branch manager as the possible reasons for his SERB selection in his enclosed statement to the Board, which is included for review. He concludes that the Board should correct the injustice associated with his selection by the SERB, which was the result of an error in its determination of the years of active military service he had completed in a commissioned officer status and from the confusion resulting from his non-standard military career. He also indicates that given the events of September 11^th, 2001, the Army has once again instituted an Aviation recall program. After contacting the Army’s Aviation Branch about reentering active duty, he was informed that his active duty training as a Military Intelligence Officer and Intelligence Aviator were in high demand; however, the current recall program does not permit an aviator recalled to active duty to be considered or compete for promotion.

The applicant requests that the Board reverse the decision of the 1994 SERB, and that he be promoted to COL with a retroactive promotion date under the criteria for selection used by the 1993 COL promotion board. He further asks that he be restored to active duty for a period of not less than three years and that he be provided with an appropriate date of rank and all back pay and allowances due. He further states that if the Board elects not to restore him to active duty, he requests that he be promoted to COL with a date of rank consistent with selection by the 1993 COL promotion board, that he receive three years time in grade credit as a COL, and that he be retired in that rank. He also requests that he receive an appropriate adjustment to his years of service, retired pay, and back pay and allowances due.

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

On 25 March 1994, the applicant submitted a letter requesting voluntary retirement, and this request was approved. On 30 June 1994, he was released from active duty (REFRAD), for the purpose of retirement. The facts and circumstances surrounding his selection for early release by a SERB are not on file in the record. However, there is a properly constituted separation document (DD Form 214) on file that contains the authority and reason for his separation.

The separation document DD Form 214 issued to and authenticated by the applicant on the date of his REFRAD confirms that he was separated under the provisions of paragraph 4-13, Army Regulation 635-100, by reason of sufficient service for retirement. This document also confirms that as of that date, the applicant held the rank and pay grade of lieutenant colonel/0-5 (LTC/0-5). It also verifies that as of the date of his REFRAD, he had completed a total of 23 years,
6 months, and 18 days of active military service, and 27 years, 8 months, and
14 days of service for basic pay purposes.


Title 10 of the United States Code, section 638a enhanced the authority for selective early retirement and early discharges. In effect, it provided that during the period beginning on 1 October 1990 and ending on 31 December 2001, the Secretary of the Army could consider officers holding a regular grade below COL, who were eligible for retirement and who were not on a list of officers recommended for promotion, to be considered for selective early retirement.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The Board carefully considered the applicant’s issues as presented in his
self-authored statement, and while it understands his logic for submitting his application, it does not find that the facts he presents provide a sufficient evidentiary basis to grant the requested relief.

2. The evidence of record confirms that the applicant was considered and selected for early retirement by a properly constituted SERB, which was conducted in accordance with the law and regulation in effect at the time. The specific reasons for the applicant’s selection for early retirement by the SERB are not on file. However, it is presumed that it was based on the collective best judgment of the SERB members based on their evaluation of the applicant’s Official Military Personnel File (OMPF) in comparison with the other officers considered.

3. Notwithstanding the speculation of the applicant in regard to the reasons for his selection, which were based on his conversations with his branch manager, the Board finds no real evidence to show that the SERB erred in its interpretation of the applicant’s record, or that his selection was based solely on the factors he presents. Lacking evidence to show that the SERB that considered the applicant acted contrary to law or made a material error, the Board finds no error or injustice related to the applicant’s selection for early release.

4. 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.

5. 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

__JHL _JLP_ __PMS _ DENY APPLICATION

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

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INDEX

CASE ID	AR2003084738
SUFFIX
RECON
DATE BOARDED	2003/06/03
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1994/06/30
DISCHARGE AUTHORITY	AR135-100
DISCHARGE REASON	Retirement
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 310	131.0000
2.
3.
4.
5.
6.