MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 14 August 2003
         DOCKET NUMBER: AR2003086231

         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
Mrs. Nancy L Amos		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor		Chairperson
Mr. James E. Anderholm		Member
Ms. Linda M. Barker		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 he be promoted from Lieutenant Colonel, O-5 to Colonel, O-6. If the Board does not make this correction, he requests that his "recall to active duty rank" be changed to Colonel.

APPLICANT STATES: That he was assured by Army authorities that the "Volunteer Letter" he signed would be for his return to active duty (i.e., returning as an active duty officer from whence he came). However, he was instead recalled to active duty as a "Retired On Active Duty Officer." That was not what the U. S. Army Personnel Command (AR-PERSCOM) offered him and not what he volunteered for. Prior to the President's Executive Order of 14 September 2001, "Retired on Active Duty Officers" had a regrettable promotion restriction in accord with U. S. Code, Title 10, section 12307. However, the President's 14 September 2001 Executive Order appropriately rescinded this promotion restriction.

The applicant states that he is now (as of his application dated 7 December 2002) serving on active duty for an indefinite duration. He is qualified via service and educational requirements for promotion consideration to Colonel. His military record is of the highest standards as reflected on his Officer Efficiency Reports (OERs). He repeatedly requested, both verbally and in writing, to be included for consideration by the 8 July 2002 Colonel Reserve Promotion Board. He was nonetheless improperly and arbitrarily denied the opportunity to compete for promotion. As a result of a U. S. Central Command (CENTCOM) Inspector General's (IG) Office inquiry into the matter, he was advised that the 14 September 2001 Executive Order rescinded all promotion prohibitions that earlier pertained to Retired Officers on Active Duty. He was advised that notwithstanding the Executive Order, the Department of Defense has neither initiated nor implemented the necessary guidance.

The applicant states that it is now appropriate for the Board to correct this error and injustice. In addition to the Executive Order, Army Regulation 601-10 states that the proponent has the authority to approve exceptions to this regulation that are consistent with controlling law and regulation.

As supporting evidence, the applicant provides an email dated 16 December 2001 requesting the applicant confirm his volunteer status; his 17 December 2001 volunteer for recall to active duty confirmation; an August 2002 reply from the U. S. Army Chief, Reserve Component Support Services Office to Senator Warner; an email dated 22 July 2002; an email dated 21 July 2002; a copy of the 14 September 2001 Executive Order; AR-PERSCOM Orders M-04-200446 dated 5 April 2002 ordering him to active duty in retired status for a period not to exceed 365 days unless extended under authority Title 10, U. S. Code, section 12301D; AR-PERSCOM Orders M-04-200446A01 dated 28 April 2002 amending the 5 April 2002 orders to change the report date to no later than 18 May and no earlier than 16 May 2002; AR-PERSCOM Orders M-04-200446A02 dated 8 May 2002 further amending the report date to no earlier than 1 June and no later than 3 June 2002; AR-PERSCOM Orders M-04-200446A03 dated 8 May 2002 amending the orders in an unidentified manner; AR-PERSCOM Orders M-04-200446A04 amending the report date to no earlier than 8 June and no later than 10 June 2002; U. S. Army Intelligence Center and Fort Huachuca Orders 205-00028 dated 24 July 2002 assigning the applicant to CENTCOM with a will proceed date of 28 July 2002; letters dated 24 October 2002 and 18 November 2002 from Senator Warner to the applicant; and his OERs for the periods ending 27 September 1996 and 26 May 1997.

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

After having had prior enlisted service, he was commissioned a second lieutenant in the U. S. Army Reserve and entered active duty on 14 November 1969. He was released from active duty on 27 August 1971. He was promoted to Lieutenant Colonel on 11 November 1989. On an unknown date, he was transferred to the Retired Reserve.

Around December 2001, the applicant volunteered for recall to active duty for Operation Noble Eagle or Operation Enduring Freedom. He accordingly was ordered to active duty, in retired status, in the rank of Lieutenant Colonel, on orders dated April 2002. He apparently entered active duty in June 2002.

By Executive Order dated 14 September 2001, President Bush ordered the Ready Reserve of the Armed Forces to active duty and delegated certain authorities to the Secretary of Defense and the Secretary of Transportation.

Section 1 of the Executive Order invoked the authority under Title 10, U. S. Code, and provided additional authority to the Department of Defense and the Department of Transportation to order any unit, and any member of the Ready Reserve not assigned to a unit organized to serve as a unit, in the Ready Reserve to active duty for not more than 24 consecutive months. This authority was invoked and made available to the Secretaries of the Army, Navy, and Air Force, subject to the direction of the Secretary of Defense.

Section 2 of the Executive Order invoked section 527 of Title 10, U. S. Code, to suspend the operation of sections 523, 525, and 526 of that Title regarding officer and warrant officer strength and distribution; and sections 123, 123a, and 12006 of that Title, to suspend certain laws relating to promotion, involuntary retirement, and separation of commissioned officers.

Section 4 of the Executive Order designated and empowered the Secretary of Defense, without the approval, ratification, or other action by the President, to exercise the authority vested in the President by sections 123, 123a, 527, and 12006 of Title 10, U. S. Code.
Section 6 of the Executive Order provided that the authority delegated by this order to the Secretary of Defense may be redelegated and further subdelegated to civilian subordinates who are appointed to their offices by the President, by and with the advice and consent of the Senate.

Section 8 of the Executive Order stated that the order is intended only to improve the internal management of the executive branch and is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, its officers, or any person.

Army Regulation 601-10 (Management and Mobilization of Retired Soldiers of the Army) in pertinent part prescribes policy, responsibilities, and procedures for recalling retired military personnel in time of a national emergency, mobilization, or war when declared by the President or Congress, in the interest of national defense, or as otherwise authorized by law. Paragraph 1-5 states that the Secretary of the Army may order the following retired soldiers to active duty at any time in the interest of national defense under section 688(a), Title 10, U. S. Code: Regular Army retired soldiers and Reserve retired soldiers who have completed at least 20 years of active service. Paragraph 1-6 states that a recalled retiree is a retired soldier who is ordered to active duty from the Retired Reserve or the Retired List under Title 10, U. S. Code, section 672(a, 688(a), or 672(d) serves in his or her retired status. Paragraph 2-5 states that retired soldiers ordered to active duty will be ordered to active duty in their current grade on the retired list unless otherwise directed by Headquarters, Department of the Army. Retired military personnel recalled to active duty in retired status are not eligible for promotion.

Title 10, U. S. Code, section 123 states that the President may suspend the operation of any provision of law relating to the promotion, involuntary retirement, or separation of commissioned officers of the Reserve in time of war or national emergency. Section 12307 states that a member in a retired status is not eligible for promotion (or for consideration for promotion) as a Reserve.

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. 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.

2. The Board acknowledges that section 1 of President Bush's Executive Order dated 14 September 2001 suspended certain laws relating to the promotion of commissioned officers. However, in Section 4 he designated and empowered the Secretary of Defense to exercise that authority. Section 6 allowed the Secretary of Defense to delegate that authority to the Secretaries of the Armed Forces, including the Secretary of the Army.

3. In section 6, the Executive Order noted that the order was intended only to improve the internal management of the executive branch.

4. The Board notes that nowhere in the Executive Order was the Secretary of Defense or the Service Secretaries obligated to exercise the authority granted them. It appears that the Secretary of the Army has determined that the authority to suspend Title 10, U. S. Code, section 12307 is not yet required to properly manage the Army in this time of national emergency.

5. The applicant provides no evidence to show what AR-PERSCOM offered him or assured him in obtaining his voluntary recall to active duty. In any case, the Army is not liable for the erroneous actions of its officers, agents, or employees, even though committed in the performance of their duties. This is especially so when such actions would be contrary to law.

6. There is no evidence to show the applicant ever served as a Colonel. The evidence shows that he was placed on the retired list in the rank of Lieutenant Colonel; therefore, the Board concludes that it would not be appropriate to amend his recall to active duty orders to show he was recalled in the rank of Colonel.

7. 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

__rvo___ __jea___ __lmb___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003086231
SUFFIX
RECON
DATE BOARDED	20030814
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	131.03
2.
3.
4.
5.
6.