RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      31 August 2006
      DOCKET NUMBER:  AR20050013253


      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             |
|     |Ms. Stephanie Thompkins           |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Ms. Karmin S. Jenkins             |     |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 in an active Reserve
status, promotion to lieutenant colonel, and transfer to the Oregon Army
National Guard (ORARNG) to complete his career.

2.  The applicant states, in effect, that he was retired from the ORARNG on
31 August 2002.  He was forced to retire after serving just over 21 years
because of the rules in place at that time.  He feels this is unjust
because if he had been a Regular Army officer he would have been able to
serve 24 years in his rank of major.  However, because he was a member of
the ARNG, he was not given the opportunity to continue his career and
retire as a lieutenant colonel or possibly a higher rank.  He feels this is
unjust since his active duty counterparts can serve 24 years in the rank of
major and lieutenant colonel up to 28 years.  The DA Promotion Board
selected him for promotion to lieutenant colonel on his first look in
February 2003, five months after he retired.  This is an indicator that his
performance was excellent.

3.  The applicant further states that the ORARNG and National Guard Bureau
(NGB) started relaxing their policy of 20 years and out for Active Guard
Reserve (AGR) officers before he retired.  Several of his co-workers that
he served with while assigned under Title 32, United States Code, in the
ORARNG were extended on active duty.  Their retirement dates were during
the same time period as his retirement date.  The NGB started having
Extension Selection Boards to select officers that wanted to extend beyond
20 years in October 2002. This was one month after he retired.  He was
diagnosed with diabetes while he was in an AGR status on 4 November 1997.
Because of this, he feels it was wrong not to grant his extension request.
This is especially true when it was shown that he was still performing at a
very high level.

4.  The applicant provides copies of his DD Form 214 (Certificate of
Release or Discharge from Active Duty); his Eligibility for Promotion as a
Reserve Commissioned Officer Not on Active Duty memorandum; his officer
evaluation reports (OER) for the periods ending 31 May 2000, 9 September
2000, and 11 October 2001; and a memorandum of support from the Acting
Adjutant General (AG), ORARNG, in support of his requests.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was appointed in the South
Carolina (SC) ARNG, as a second lieutenant, effective 28 December 1982,
with prior enlisted service.  He was promoted to captain effective 1
November 1988.
2.  He was appointed in the ORARNG effective 30 September 1993.

3.  He was ordered to active duty in an AGR status effective 4 November
1994.   He was promoted to major effective 1 February 1997.  He was
continued on active duty effective 24 October 2000.

4.  He was released from active duty for sufficient service for retirement
under the provisions of Army Regulation 600-8-24, paragraph 6-14C(1), in
the grade of major, effective 31 August 2002.  He was transferred to the
United States Army Reserve (USAR) (Retired).

5.  He was separated from the ORARNG, in the grade of major, effective
31 August 2002 and transferred to the Retired Reserve.  He was credited
with 20 years, 1 month, and 24 days qualifying years for retirement.  He
was separated under the authority of Title 10, United States Code, Section
3911.

6.  The Chief, Office of Promotions, Reserve Components, Total Army
Personnel Command, St. Louis, Missouri, issued the NGB Personnel Center, an
Eligibility for Promotion as a Reserve Commissioned Officer Not on Active
Duty memorandum, dated 4 February 2003.  The memorandum advised the NGB
that the applicant had been selected for promotion to lieutenant colonel by
the 2002 Reserve Components Selection Board that convened on 4 September
2002.  The memorandum also advised that the promotion eligibility date
would be either of the following dates: a.  20 February 2004; or b.  the
date Federal recognition was extended in the higher grade; or c.  the date
following the date Federal recognition was terminated in the current
Reserve grade.

7.  In a memorandum, dated 20 April 2004, the Acting AG, ORARNG, stated
that if the applicant was reinstated to active duty he would have a slot in
the ORARNG.  One of the stipulations for reinstatement was to have a slot
in the ORARNG the applicant could fill if his appeal was acted upon
favorably.  The applicant previously served as an AGR Title 32 officer with
the ORARNG and had a very successful career and command tour.  The Acting
AG summarized by stating, that based on the applicant's proven performance
capabilities, he would
not hesitate to recommend the applicant for reinstatement and assignment
back to the ORARNG as a lieutenant colonel.

8.  A staff member of the Retirements and Annuities Branch, Human Resources
Command (HRC), St. Louis, Missouri, verified that a Notification of
Eligibility for Retired pay at Age 60 (20-Year Letter) was prepared on 9
June 1999 for the applicant.  The Staff member also verified that the
applicant had a mandatory removal date of 31 January 2002.

9.  The Soldier Management System, HRC, St. Louis, verifies that the ARNG
did not issue the 20-Year letter to the applicant until 5 November 2005.

10.  The applicant will reach age 60 on 25 August 2016.

11.  Army Regulation 600-8-24 prescribes officer transfers from active duty
to the Reserve Component (RC) and discharge functions for all officers on
active duty for 30 days or more. It provides principles of support,
standards of service, policies, tasks, rules, and steps governing all work
required to support officer transfers and discharges.  Paragraph 6-14c(1)
of this regulation specifies that an RA or USAR commissioned officer with
20 years active Federal service may, on his or her request, and approval of
the Secretary of the Army, be retired.

12.  Army Regulation 135-155, prescribes the policies for the promotion of
Reserve and ARNG officers.  Chapter 2, paragraph 2-7, of this regulation,
specifies that to be eligible for selection, an ARNG or USAR officer who
meets the eligibility requirements must be properly in an active status and
participating satisfactorily in Reserve training.

13.  Army Regulation 135-155 also specifies that if an officer is
determined to be ineligible for promotion because he/she was removed from
an active status before the promotion was finalized (promotion memorandum
issued), the Commander, Office of Promotions, Reserve Components, HRC – St.
Louis, will declare the promotion selection null and void and a promotion
memorandum will not be issued.  A Reserve or ARNG officer on transfer to
the Retired Reserve will be transferred in the highest grade in which
he/she served satisfactorily.

14.  Army Regulation 140-10, prescribes the policy and procedures for
assignments, attachments, details, and transfers of Reserve Component
Soldiers.  Paragraph 6-4d. of this regulation specifies that Retired
Reserve Soldiers who were removed from active status by operation of law
and whose transfer to the Ready Reserve would result in their immediate
removal there from by operation of law, are ineligible to transfer to the
Ready Reserve.
15.  Title 10, United States Code, Section 3911, authorizes the Secretary
of the Army, upon the officers request, to retire a regular or Reserve
commissioned officer of the Army who has at least 20 years of service.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not
entitled to reinstatement in an active Reserve status, promotion to
lieutenant colonel, and transfer to the ORARNG.  He has not shown error,
injustice, or inequity for the relief he now requests.

2.  The applicant had completed over 20 years of active Federal service and
was released from active duty and transferred to the Retired Reserve on 31
August 2002 based on operation of law for sufficient service for
retirement.  Therefore, since his release from an active status was based
on operation of law he is not entitled to transfer from the Retired Reserve
to the Ready Reserve or the ARNG.

3.  The applicant was selected for promotion to lieutenant colonel by the
2002 RCSB that was approved by the President on 13 January 2003.  In
accordance with pertinent regulations, his promotion selection was declared
null and void based on his transfer to the Retired Reserve prior to the
approval date of the board.  Therefore, he is not eligible for promotion to
lieutenant colonel because he was not in an active status when the board
was approved and does not have a basis for promotion based on the
selection.

4.  In view of the foregoing, there is no basis for granting the
applicant’s requests.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JCR___  __WDP__  __KSJ__  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.




                                  _____William David Powers____
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050013253                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060831                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.00                                  |
|2.                      |136.00                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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