RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         27 July 2006
      DOCKET NUMBER:  AR20050015831


      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. John T. Meixell               |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 to the Ready Reserve
and promotion to lieutenant colonel (LTC).

2.  The applicant states, in effect, he was transferred to the Retired
Reserve on
1 September 2001; however, he was selected for promotion to LTC by the
Fiscal Year 2001 (FY01) LTC Reserve Component Selection Board (RCSB), which
was published in February 2002.  He claims he has been trying to transfer
back to the Ready Reserve from the Retired Reserve in order to rejoin his
old unit as a LTC.

3.  The applicant provides a self-authored statement and the FY01 LTC RCSB
promotion list in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he was commissioned a second
lieutenant (2LT) on 7 June 1978.  He served on active duty for 5 years and
2 days until being honorably released from active duty and transferred to
the United States Army Reserve (USAR) on 8 June 1983, in the rank of
captain.

3.  The applicant was promoted to major on 9 February 1991, and was
transferred to the Retired Reserve on 1 September 2001.  A Retirement
Points Summary on file, dated 7 November 2005, confirms the applicant
completed
20 years, 2 months, and 26 days of qualifying service for non-regular
retirement.

4.  In connection with the processing of this case, an advisory opinion was
obtained from the United States Army Reserve Command (USARC).  It states
that the applicant was a two time non-select for promotion to LTC, and was
allowed to stay in the active Reserve to complete 20 years of qualifying
service for retirement based on an 18-year regulatory lock-in.  It further
indicates the applicant was issued a Notification of Eligibility for
Retired Pay on 11 July 2001, and was transferred to the Retired Reserve on
1 September 2001.  It further indicates that information received from
Reserve Component (RC) promotion officials of the Human Resources Command,
St. Louis, Missouri (HRC-St. Louis) confirms the applicant was erroneously
considered and selected for promotion by the FY01 LTC RCSB, which convened
on 5 September 2001, 4 days after the applicant's transfer to the Retired
Reserve.  As a result, the applicant was not eligible for promotion
consideration or selection, and was accordingly removed from the promotion
list.  This USARC official further states that if the applicant desires to
support the Global War on Terrorism (GWOT), it is recommended he apply for
retiree recall through HRC-St. Louis.
5.  On 14 June 2006, the applicant was provided a copy of the USARC
advisory opinion in order to have an opportunity to rebut its contents.  To
date, he has failed to respond.  Chapter 7 contains guidance on the removal
of Solders from an active Reserve status

6.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant
Officers Other Than General Officers) prescribes policy and procedures used
for selecting and promoting commissioned officers (other than commissioned
warrant officers) of the Army National Guard of the United States (ARNGUS)
and of commissioned and warrant officers (WO) of the USAR.  Chapter 2
contains promotion consideration eligibility criteria.  It states, in
pertinent part, that an officer must be on the Reserve Active Status List
(RASL) on the convening date of the RCSB; and that by law, an officer who
has an established date for removal from the RASL that is 90 days or less
from the convening date of the selection board is not eligible for
promotion consideration.

7.  Army Regulation 140-10 (Assignments, Attachments, Details, and
Transfers)
prescribes policies, responsibilities, and procedures to assign, attach,
detail, remove, or transfer USAR Soldiers.  Paragraph 7-4b (Nonselection
for promotion after second consideration-removal rule 4) states, in
pertinent part, that officers who are twice not selected for promotion to
LTC will be removed from an active Reserve status.  As an exception, the
regulation provides for Officers having
18 or 19 years of qualifying Federal service for retired pay to be retained
to complete 20 years of qualifying Federal service for retirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be reinstated on the RASL
with his old unit in the rank of LTC, and the supporting documents he
submitted, were carefully considered.  However, there is insufficient
evidence to support his claim.

2.  By law and regulation, an officer who is twice not selected for
promotion to LTC who has completed 18 or more years of qualifying service
for retirement must be removed RASL upon obtaining 20 years of qualifying
service for retirement purposes.  The evidence of record confirms the
applicant was twice not selected for promotion to LTC, and that after
obtaining 20 years of qualifying service on 11 July 2001, he was removed
from the RASL and transferred to the Retired Reserve on 1 September 2001 in
accordance with the applicable regulation.

3.  The evidence of record also shows that the applicant had been removed
from the RASL and transferred to the Retired Reserve on 1 September 2001,
four days prior to the date the FY01 LTC RCSB convened.  Therefore, he was
not eligible for promotion consideration by this promotion board, and HRC-
St. Louis RC promotion officials appropriately removed him from the
promotion list in accordance with the governing law and regulation.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JTM _  __JCR __  __EEM   _  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.




                                  _____John T. Meixell______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050015831                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/07/27                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2001/09/01                              |
|DISCHARGE AUTHORITY     |AR 140-10                               |
|DISCHARGE REASON        |Retired Reserve                         |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |135-0100                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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