RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            3 November 2005
      DOCKET NUMBER:   AR20050003006


      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 D.                     |     |Chairperson          |
|     |Mr. John Infante                  |     |Member               |
|     |Ms. Carmen Duncan                 |     |Member               |

      The Board considered the following evidence:

      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, reinstatement on active duty and
promotion to major/0-4 (MAJ/0-4) with back pay and allowances.

2.  The applicant states, in effect, on 3 September 2003, he received a
Department of the Army (DA) letter informing him he was not selected for
promotion to MAJ/0-4, but that he would be allowed to voluntarily retire,
or if he did not elect to retire, he would be involuntarily separated on 31
August 2004.  At this time, he was completing an assignment with the United
States Army Recruiting Command (USAREC), Fort Hamilton, New York.  He
states that during this same period, his brother, who lived in South
Carolina, was diagnosed with a life threatening disease, and was given less
than six months to live.  As a result, he requested and was granted an
assignment to Fort McPherson, Georgia, to be near his brother before he
died.  He states that after his brother died, he complied with the
directives and requested that the terminal leave he was taking in
conjunction with his retirement begin on 16 June 2004.

3.  The applicant further states that the MAJ/0-4 promotion list was
released and he was selected for promotion with a sequence number of 78,
which would have resulted in his promotion on 1 October 2004.  He claims he
ended his terminal leave on 31 August 2004, and his voluntary retirement
became effective that date.  He also states that because of the overlapping
dates of his retirement date and promotion date, he was unable to
capitalize on the promotion.  He claims that he has been seeking employment
between 16 June 2004 and 1 January 2005, and he is currently pursuing a
doctoral degree in Organizational Leadership from the University of
Maryland Eastern Shore.  He claims these efforts required tremendous time
and effort, and he was unaware of the promotion until January 2005.  He
contends that since that time, he has attempted to correct his status from
retirement to active duty.  His actions included a personal visit to the
Army’s Human Resources Command (HRC) in Alexandria, Virginia, and making
numerous phone calls to various agencies within Department of the Army
(DA), to include the Army Review Boards Agency. He concludes by restating
his request that he be reinstated to active duty and to be promoted to
MAJ/0-4, effective and with a date of rank of 1 October 2004, and that he
be provided all back pay and allowances due as a result.

4.  The applicant provides the following documents in support of his
request:  DA Mandatory Retirement Letter, dated 3 September 2003; American
Red Cross Physician Letter, dated 29 October 2003; Reassignment Orders,
dated
10 December 2003; Military Retirement Request, dated 7 May 2004; Terminal
Leave Request, dated 16 June 2004; MAJ/0-4 Promotion List, dated 24 August
2004; and Retirement Orders, dated 7 June 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows he served on active duty in an enlisted
status for 8 years, 1 month and 2 days between 9 July 1982 and 10 August
1990, at which time he was honorably separated, in the rank of staff
sergeant (SSG), in order to enter the Reserve Officer Training Corps
(ROTC).

2.  On 31 August 1992, the applicant entered active duty in a commissioned
officer status.  His record shows he was promoted to the rank of captain
(CPT) on 1 September 1996.

3.  On 3 September 2003, the applicant was notified that he had not been
selected for promotion to MAJ by a recently held DA promotion board.  He
was also notified that by law, officers who had received their second non-
selection for promotion were required to retire or be separated by 31
August 2004, and this date was the last day of the month following the
month he would complete
20 years of active Federal service.

4.  On 7 May 2004, the applicant submitted a request for voluntary
retirement on 31 August 2004.  In his application, he acknowledged his
understanding that once the Secretary of the Army accepts his retirement
application, it could not be withdrawn except for extreme compassionate
reasons, or for the definitely established convenience of the Government.

5.  On 16 June 2004, the applicant departed on transition leave in
conjunction with his retirement.

6.  On 24 August 2004, the Fiscal Year 2004 MAJ/0-4 promotion list was
released and the applicant was on the list with a sequence number of 78.

7.  On 31 August 2004, the applicant was honorably released from active
duty (REFRAD) for the purpose of voluntary retirement.  At the time, he
held the rank of CPT and had completed a total of 20 years, 1 month and 2
days of active military service.

8.  Army Regulation 600-8-29 (Officer Promotions) prescribes the Army’s
officer promotion policy.  Paragraph 1-13 contains guidance on officers who
fail to be selected for promotion a second time.  It states, in pertinent
part, that an officer who fails to be selected for promotion to MAJ a
second time must be discharged or released from active duty, or retired
under any provision of law, if eligible, on the date requested and approved
by proper authority.  Retirement will not be later than the first day of
the seventh month beginning after the month in which the President or the
President’s designee approves the report of the board that considered the
officer the second time.

9.  Paragraph 5-1 of the officer promotion regulation contains guidance on
processing the recommendations of promotion selection boards.  It states,
in pertinent part, that Army Human Resources Command (HRC) will remove from
the list those officers who are dropped from the rolls of the Army,
separated, or retired before being promoted from the list without
provisions for reinstatement on the list if they subsequently return to
active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for reinstatement and promotion, and the
supporting documents he submitted were carefully considered.  However,
there is an insufficient evidentiary basis to support granting the
requested relief.

2.  The applicant’s personal situation during his retirement processing was
also carefully considered.  However, although unfortunate, these factors
are not sufficiently mitigating to support his reinstatement on active
duty.  The applicant voluntarily requested retirement on 31 August 2004,
based on his twice being non-selected for promotion, and his retirement
processing was accomplished in accordance with the applicable regulation.

3.  By regulation, officers who are retired prior to being promoted will be
removed from the promotion standing list by HRC without provisions for
reinstatement on the list if they subsequently return to active duty.

4.  The evidence of record in this case confirms the applicant requested
retirement, his retirement was approved, and he began transition leave
prior to the release of the promotion selection board results on 24 August
2004.  Further, he was REFRAD for the purpose of retirement prior to being
promoted.  Thus, his name was properly removed from the promotion list by
HRC, and there are no provisions for his promotion even if he were
reinstated on active duty at this time.

5.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___TDH _  ___JI   __  ___CD __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




            ____Thomas D. Howard____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050003006                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/11/03                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2004/08/31                              |
|DISCHARGE AUTHORITY     |AR 600-8-24                             |
|DISCHARGE REASON        |Retirement                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0300                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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