RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            19 July 2005
      DOCKET NUMBER:  AR20040005405


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Ted S. Kanamine               |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Lawrence Foster               |     |Member               |

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, reconsideration of his earlier
request for placement on the Reserve Active Status List (RASL) effective 15
July 2002 for promotion to lieutenant colonel (LTC) by a Reserve promotion
board.

2.  The applicant states that the Memorandum of Consideration (MOC) dated
    6 November 2003 contained several errors:

     a.  Page 2, under Evidence of Record, the MOC notes he was assigned to
an individual mobilization augmentee (IMA) position effective 10 November
1999. His first IMA assignment was in April 1997;

     b.  Page 3 of the MOC notes he was commissioned in the Regular Army as
a major effective 11 February 2003.  He was told he had to wait 1 year
after coming on active duty before taking the Regular Army oath of office.
The oath was administered to him on 7 April 2004.

     c.  Page 3 of the MOC notes that the Chief, Office of Promotions,
Reserve Components expressed the opinion, "That order also stated that he
would be managed by the active Army that would indicate he would be placed
on the active duty list (ADL).  The authority for the order was Title 10,
USC (United States Code), section 12301(d) since he was assigned as an IMA
in the Army Reserve prior to being ordered to active duty and since the
active duty commitment was for less than 3 years, he would have remained on
the RASL."  That was an error as he was a reserve IMA who volunteered for a
2-year tour at New Orleans Recruiting Battalion.  He should have remained
on the RASL while on duty at the New Orleans Recruiting Battalion because
he was still a reserve officer.

     d.  Page 3 of the MOC notes that, with the combination of the two
periods of active duty, he would have been activated for more than 3 years
and would not have been able to remain on the RASL; therefore, he was not
eligible for promotion in the Reserve.  This is incorrect because he was a
reserve IMA on a 2-year tour beginning 16 April 2001 and ending on 13 July
2002 prior to his deploying to Korea.  His active duty time began on 15
July 2002, not 16 April 2001.  An error was made in not keeping him on the
RASL.

     e.  Page 4 of the MOC notes that the Deputy Chief of the Active
Component Promotions Branch recommended his 17 June 2002 orders, with a
report date   of 15 July 2002, be amended to state he would remain on the
RASL until           13 January 2003.  The recommendation further stated
that by transferring him to the ADL on 13 January 2003 his promotion
selection would transfer with him in accordance with Title 10, USC, section
14317 where his name could be placed on the appropriate promotion list for
officers on the ADL.  It appears this course of action was not even
considered and this is exactly what he is requesting from the Army Board
for Correction of Military Records (ABCMR).

     f.  On page 4 of the MOC, the Chief, Reserve Components, Support
Services Division, Office of the Adjutant General, U. S. Total Army
Personnel Command (PERSCOM) noted that the 2000 National Defense
Authorization Act states that any officer ordered to active duty after 30
October 2000 for less than 3 years would remain on the RASL.  The Army was
in error because he was not listed on the RASL from 16 April 2001 through
15 July 2002 which made others involved think he was on continuous active
duty.  He was a reserve IMA on a 2-year tour at the time.

     g.  On page 4 of the MOC, the Chief, Reserve Components, Support
Services Division, Office of the Adjutant General, PERSCOM stated again,
"On 15 July 2002, because he was ordered to active duty for 3 years in a
voluntary indefinite status, he was transferred to the ADL on that date."
The Army was in error because his orders gave the indication that he was
already on the ADL.

3.  The applicant further states that, in reviewing Title 10, USC, section
14317(e), it is beyond all doubt that his case clearly falls under this
category just as the Deputy Chief of the Active Component Promotions Branch
stated.  He was eligible for promotion at the time.  It was a mandatory
board.  He had 2 years from 15 July 2002 to be promoted by the reserve
component to LTC.

4.  The applicant provides his original ABCMR packet; his major promotion
memorandum dated 10 October 1996; an officer evaluation report (OER) for
the period ending 19 May 1997; a promotion status determination order dated
2 July 2001; an amendment, dated 7 February 2003, to active duty orders
dated         17 June 2002; a PERSCOM, St. Louis, MO memorandum dated 10
February 2003; pages 1, 2 and 4 of an Office of The Judge Advocate General
(OTJAG) memorandum dated 12 June 2003 (page 3 was obtained from OTJAG); an
Office of the Deputy Chief of Staff, G-1 memorandum dated 20 June 2003; a
PERSCOM, St. Louis, MO memorandum dated 27 August 2003; a U. S. Army Human
Resources Command (USAHRC, formerly PERSCOM) memorandum dated 2 February
2004; a DA Form 71 (Oath of  Office – Military Personnel) dated 7 April
2004; a USAHRC letter to the applicant's Senator dated 27 August 2004; and
his Officer Record Brief dated 12 May 2005.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
ABCMR in Docket Number AR2003085927 on 6 November 2003.

2.  The applicant provides new evidence and new argument which will be
considered by the Board.

3.  The applicant provided an OER for the period 21 April 1997 through 19
May 1997 which indicates he was an IMA on active duty at that time.

4.  U. S. Total Army Personnel Command, St. Louis, MO Orders A-04-004724
dated 9 April 2001 ordered the applicant to active duty under Title 10,
USC, section 12301(d) for 2 years with a reporting date of 16 April 2001 to
fulfill an active Army requirement.  The orders indicated that he would be
managed by the PERSCOM (i.e., active Army) assignment officer.

5.  On 19 November 2001, the applicant was relieved from his reserve status
pursuant to Presidential Executive Order of 14 September 2001, under the
authority of Title 10, USC, section 12302 and ordered to active duty for
partial mobilization for Operation Enduring Freedom.  On 29 November 2001,
this order was revoked.

6.  On 17 June 2002, the applicant was ordered to active duty under Title
10, USC, section 12301(d) with a reporting date of 15 July 2002 to Korea
for 3 years to fulfill an active Army requirement.  The orders originally
read:  "active duty commitment: obligated volunteer officer 3 years in a
voluntary status."  The orders also indicated that he would be managed by
the PERSCOM (i.e., active Army) assignment officer.

7.  The applicant was considered for promotion to LTC by the 2002 Reserve
Component Selection Board (RCSB) which convened on 4 September 2002 and
recessed on 27 September 2002.  He was selected for promotion.  The
President approved the board results on 13 January 2003.

8.  On 7 February 2003, the applicant's 17 June 2002 orders were amended to
read "active duty commitment:  obligated volunteer officer 3 years in a
voluntary indefinite status."

9.  By memorandum dated 10 February 2003, the Office of Promotions, Reserve
Components, PERSCOM, St. Louis, MO recommended the applicant be removed
from the 2002 LTC RCSB selection list in accordance with Army Regulation
135-155, paragraph 3-18a(4)(b).

10.  On 11 February 2003, the applicant signed a DA Form 71 and accepted
appointment in the Regular Army (apparently prematurely).

11.  Orders dated 11 February 2003 reassigned the applicant from Korea to
Germany (another active Army requirement).

12.  By memorandum dated 12 June 2003, OTJAG provided a legal opinion to
the Office of the Deputy Chief of Staff, G-1 regarding the request to
remove the applicant's name from the 2002 LTC RCSB selection list.  OTJAG
noted that the applicant was ordered to active duty on 15 July 2002
pursuant to Title 10, USC, section 12301(d) for 3 years.  His orders did
not specify retention on the RASL.  He was placed on the ADL upon entry on
active duty; however, his name was apparently not simultaneously removed
from the RASL.

13.  OTJAG noted that, effective 28 December 2001, Title 10, USC, section
641(1)(D), excludes from the ADL reserve officers on active duty under the
provisions of Title 10, USC, section 12301(d) if the call or order to
active duty, under regulations prescribed by the Secretary of the Army,
specifies a period of  3 years or less and specifies continued placement on
the RASL (emphasis in the original).  OTJAG noted that section 511(b)(2)
does not provide for allowing officers to be considered to have been placed
on the RASL prior to the date the Secretary of the Army, or his designee,
takes such action (emphasis in the original).

14.  OTJAG noted that the applicant was ordered to active duty after
          28 December 2001, that he was placed on the ADL, and that he was
not eligible for consideration by a Reserve promotion board.  Even if he
had not been placed on the ADL, because he was ordered to active duty under
the provisions of Title 10, USC, section 12301(d) after 28 December 2001
and his orders did not specify retention on the RASL, he was deemed to have
been placed on the ADL upon entry on active duty on 15 July 2002.  Thus,
because he was not eligible for consideration by the Reserve Components
2002 LTC board, the board's recommendation pertaining to him was void.

15.  By memorandum dated 20 June 2003, the Office of the Deputy Chief of
Staff, G-1 approved the removal of the applicant's name from the 2002 RCSB
LTC promotion selection list.

16.  An advisory opinion from the Chief, Office of Promotions, Reserve
Components, PERSCOM, St. Louis, MO was obtained in the processing of the
applicant's original ABCMR case.  That individual noted that, with the
combination of the two periods of active duty, the applicant would have
been activated for more than 3 years and would not have been able to remain
on the RASL and therefore was not eligible for promotion in the Reserve.
That order also stated the applicant would be managed by the active Army,
indicating he would be placed on the ADL.  That individual recommended the
applicant's       17 June 2002 orders be amended retroactively to state he
would remain on the RASL until 13 January 2003 at which time he should be
transferred to the ADL and his promotion selection would transfer with him
in accordance with Title 10, USC, section 14317 where his name could be
placed on the appropriate ADL promotion list.  That individual also
recommended that an opinion be obtained from the Chief, Reserve Components,
Support Services Division, PERSCOM.

17.  An advisory opinion from the Chief, Reserve Components, Support
Services Division, PERSCOM was accordingly obtained in the processing of
the applicant's original ABCMR case.  That individual noted that the
applicant's problem was that he switched from the Army Extended Active Duty
(EAD) Program to Limited Call to Active Duty on 15 July 2002.  On 15 July
2002, because he was ordered to active duty for 3 years in a voluntary
indefinite (VI) status he was transferred to the ADL on that date.  He was
ineligible for the 2002 LTC RCSB because it was held in September 2002.  He
was also ineligible for the ADL board because the 2002 LTC ADL board was
held in February 2003 and he did not have one year on active duty (under
the Limited Call to Active Duty Program) at that time.

18.  By memorandum dated 27 August 2003, the applicant was informed that he
had been administratively deleted from the official results of the 2002 LTC
RCSB.

19.  By memorandum dated 2 February 2004, the Deputy Chief, Promotions
Branch, USAHRC informed the applicant that he was eligible for promotion
consideration by Fiscal Year 2003 (FY03) LTC Operations Promotion Selection
Board that convened on 25 February 2003.  Because his name was omitted from
the list of eligible officers, a special selection board (SSB) would
consider him for promotion under the same criteria.

20.  On 7 April 2004, the applicant signed another DA Form 71 accepting
appointment in the Regular Army.

21.  By memorandum dated 27 August 2004, the Chief, Management Support
Division, USAHRC informed the applicant's Senator that he was not eligible
for consideration by the FY03 LTC promotion board.  When his active duty
status changed from EAD to Limited Call to Active Duty, his entry on active
duty date remained 2001, which made it look like he was on the ADL since
2001.  However, he had been placed on the ADL in 15 July 2002, which made
him ineligible for the FY 03 LTC promotion board because he did not have
the required one year on active duty by the convene date of the 2003 board.


22.  Army Regulation 135-155 (Promotion of Commissioned Officers and
Warrant Officers other than General Officers), paragraph 2-6 states that an
officer removed from an active Reserve status before a promotion is final
(the effective date of promotion) will be removed from the promotion list.
Paragraph 4-15 states that IMA officers selected by a mandatory promotion
board must have completed the maximum years of service.

23.  Title 10, USC, section 14304 states that the maximum years of service
for promotion to the grade of LTC is 7 years.

24.  Title 10, USC, section 12301(a) states that, in time of war or
national emergency declared by Congress, or when otherwise authorized by
law, the authority designated by the Secretary concerned may, without the
consent of the persons affected, order any unit, and any member not
assigned to a unit organized to serve as a unit, of a reserve component
under the jurisdiction of that Secretary to active duty for the duration of
the war or emergency and for six months thereafter.

25.  Title 10, USC, section 12301(d) states that, at any time, an authority
designated by the Secretary concerned may order a member of a reserve
component under his jurisdiction to active duty, or retain him on active
duty, with the consent of that member.

26.  Title 10, USC, section 12302 states that, in time of national
emergency declared by the President, or when otherwise authorized by law,
an authority designated by the Secretary concerned may, without the consent
of the persons concerned, order any unit, and any member not assigned to a
unit organized to serve as a unit, in the Ready Reserve under the
jurisdiction of that Secretary to active duty for not more than 24
consecutive months.

27.  Title 10, USC, section 14317(e) states that a reserve officer who is
not on the ADL and who is ordered to active duty in time of war or national
emergency
may, if eligible, be considered for promotion by a mandatory promotion
board convened under section 14101(a) (a board convened to recommend
officers on the RASL for promotion) for not more than 2 years from the date
the officer is ordered to active duty.

28.  The National Defense Authorization Act for FY 2002 amended section
641(1)(D) of Title 10, USC to allow a Reserve officer who is ordered to
active duty under section 12301(d) of this title to remain on the RASL if
the call or order to active duty specifies a period of 3 years and
continued placement on the RASL.  The Office of the Deputy Chief of Staff,
G-1 prepared a chart entitled "ADL Status of Commissioned Officers Serving
on EAD" to provide guidance in six circumstances to determine whether EAD
orders should stipulate that an officer remain on the RASL.  Several
circumstances apply to the applicant's case:

     (1) If "Entry to EAD 30 Oct 00 to 28 Dec 01/for a period of 3 years or
less/and orders do not stipulate officer remain on RASL," then the officer
will not be placed on the ADL unless placed on the ADL by the Secretary of
the Army (may be retroactive);

     (2) If "Entry to EAD 28 Dec 01 and later/for a period of 3 years or
less/and orders do not stipulate officer remain on RASL," then the officer
will be placed on the ADL.  Orders may be amended to place the officer on
RASL (not retroactive); and

     (3) If "Entry to EAD 28 Dec 01 and later/for a period of more than 3
years," then the officer will be placed on the RASL (with no exception).

29.  Army Regulation 135-215 (Officer Periods of Service on Active Duty),
paragraph 1-6c states that all commissioned officers and warrant officers
selected for VI status under chapter 3 will incur a 1-year active duty
service obligation during which the VI status can be revoked.  Officers
approved for retention in a VI status must accept or decline VI status in
writing within             90 calendar days of selection notification.  VI
status allows officers to remain on  active duty pending Regular Army
integration.  The first year of VI status will be probationary.  Paragraph
3-7a states that officers selected for VI status may request withdrawal at
any time before entering into their VI status.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contended his first IMA assignment was in April 1997.  At
the time of the Board's 6 November 2003 consideration of his case, the
available evidence showed he was assigned to an IMA position in November
1999.  The applicant has provided evidence to show his first IMA assignment
was in April 1997.

2.  The applicant contended that the Regular Army oath of office was
administered to him on 7 April 2004.  At the time of the Board's 6 November
2003 consideration of his case, the only DA Form 71 available showed he
signed the Regular Army oath of office on 11 February 2003.  Since he
should have been in a VI probationary status at that time, it appears that
DA Form 71 was completed in error.  The applicant provided a second DA Form
71 showing he was administered his oath of office on 7 April 2004.

3.  The applicant contended that he should have remained on the RASL while
on duty at the New Orleans Recruiting Battalion because he was still a
reserve officer.  The applicant is correct.  Those orders may have
indicated he would be managed by the active Army; however, they did not
indicate (and normally would not have) he would be placed on the ADL since
it was for an EAD period of less than 3 years.  He did remain on the RASL
during his assignment with the New Orleans Recruiting Battalion.

4.  The applicant contended that the advisory opinion [erroneously] noted
that, with the combination of the two periods of active duty, he would have
been activated for more than 3 years and would not have been able to remain
on the RASL and therefore was not eligible for promotion in the Reserve.
He contended that, because he was a reserve IMA on a 2-year tour beginning
16 April 2001 and ending on 13 July 2002 prior to his deploying to Korea,
an error was made in not keeping him on the RASL.  The applicant is correct
in contending that he had not been activated for more than 3 years on 16
April 2001.  However, he is incorrect in believing he was not retained on
the RASL during that period.  He was placed on the ADL effective the active
duty period beginning 15 July 2002.

5.  The applicant contends that the ABCMR should have acted on the
recommendation of the Deputy Chief of the Active Component Promotions
Branch that his 17 June 2002 orders be amended to state he would remain on
the RASL until 13 January 2003, which would have allowed him to transfer
his promotion selection to the ADL promotion list.  However, that
recommendation was contrary to statute and the guidance provided by the
Office of the Deputy Chief of Staff, G-1.

6.  The applicant contends that, when the Chief, Reserve Components,
Support Services Division, PERSCOM stated, "On 15 July 2002, because he was
ordered to active duty for 3 years in a voluntary indefinite status, he was
transferred to the ADL on that date," the Army was in error because his
orders (it cannot be determined if he means the 9 April 2001 or the 17 June
2002 orders) gave the indication that he was already on the ADL.

7.  The applicant's 9 April 2001 orders only stated that he would be
managed by the active Army.  However, it is acknowledged that others
interpreted those orders, in combination with his later active duty orders,
to mean he was already on the ADL.

8.  The applicant contends that his case clearly falls under the provisions
of Title 10, USC, section 14317(e) and, in effect, his Reserve promotion to
LTC should stand.  However, section 14317(e) states that a reserve officer
who is not on the ADL and who is ordered to active duty in time of war or
national emergency may, if eligible, be considered for promotion by a
mandatory promotion board convened under section 14101(a).

9.  The applicant was not ordered to active duty under the provisions of
Title 10, USC (section 12301(a)) that authorize the Secretary of the Army
to involuntarily order a member to active duty in time of war or of
national emergency.  He never served on active duty under the provisions of
Title 10, USC, section 12302 that authorize the Secretary of the Army to
involuntarily order a member to active duty in time of national emergency
declared by the President for not more than            24 consecutive
months.

10.  On 9 April 2001, the applicant was ordered to active duty under the
provisions of Title 10, USC, section 12301(d) (voluntary consent).  On
         19 November 2001, he was ordered to active duty under the
authority of Title 10, USC, section 12302; however those orders were
revoked on 29 November 2001. The 17 June 2002 active duty orders also gave
an authority of Title 10, USC, section 12301(d) (voluntary consent).
Therefore, he does not fall under the provisions of Title 10, USC, section
14317(e).

11.  Nevertheless, there does appear to be an injustice in this case.  The
applicant was a reservist during a period of time the active Army required
more active duty officers.  He volunteered for active duty to fulfill some
of those active Army requirements.  While it would not be equitable to
correct his 12 June 2002 orders to show he remained on the RASL, it would
be equitable to amend his      9 April 2001 orders to show he was to be
placed on the ADL.  As he would then have been on the ADL for more than one
year, he would be eligible for SSB consideration under the criteria of the
FY03 LTC Operations Promotion Selection Board that convened on 25 February
2003.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__tsk___  __jtm___  __lf______  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant partial amendment of the ABCMR’s decision in Docket Number
AR2003085927 dated 6 November 2003.  As a result, the Board recommends that
all Department of the Army records of the individual concerned be corrected
by:

     a.  amending U. S. Total Army Personnel Command, St. Louis, MO Orders
 A-04-004724 dated 9 April 2001 to show he would be added to the Active
Duty List effective 16 April 2001; and

     b.  submitting his records to a duly constituted Special Selection
Board for reconsideration for promotion under the criteria of the FY02 LTC
Operations Promotion Selection Board following amendment of those orders.

2.  That if he is selected for promotion his records be further corrected
by  promoting him to LTC and assigning the appropriate date of rank.

3.  That if he is not selected for promotion, he be notified accordingly.

4.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
placement on the Reserve Active Status List effective 15 July 2002 for
promotion to LTC by a Reserve promotion board.




            __Ted S. Kanamine___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040005405                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050719                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |131.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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