RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         14 September 2006
      DOCKET NUMBER:  AR20050016259


      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. Eric N. Anderson              |     |Chairperson          |
|     |Ms. Rose M. Lys                   |     |Member               |
|     |Mr. Richard O. Murphy             |     |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 initially requested, in effect, that his records be
corrected to show he remained on the Reserve Active Status List (RASL) when
he was ordered to active duty on 1 May 2002; and that he be considered for
promotion to lieutenant colonel (LTC) by a Special Selection Board under
Reserve Component Selection Board (RCSB) criteria.  He has subsequently
revised his request, based on his being selected for promotion to LTC by
the Fiscal Year 2006 (FY06) LTC promotion selection board, and is now
asking that his LTC promotion effective date and date of rank (DOR) be
adjusted to an appropriate date in 2004 or 2005.

2.  The applicant states, in effect, that the orders recalling him to
active duty did not indicate his continued placement on the RASL, and as a
result of this oversight, he was recently passed over for promotion to LTC
a second time.  He states that after 11 September 2001, he answered the
Army's recall request to return to active duty.  He states that he returned
to active duty on 1 May 2002, after an eight-year break in service.  He
claims that during this break, he served in a United States Army Reserve
(USAR) Troop Program Unit (TPU); however, his orders to active duty did not
indicate whether he would remain on the RASL or be placed on the Active
Duty List (ADL).  As a result, he was automatically placed on the ADL, yet
he remained classified as an Other Than Regular Officer. He claims that in
conversations with Human Resources Command (HRC) and Army G-1 officials,
they indicated that he should have remained on the RASL for promotion
consideration.

3.  In his revised request, the applicant states that based on his
selection for promotion by the FY06 promotion selection board, a fair
compromise would be to adjust his LTC promotion effective date and DOR to
an appropriate date in 2004 or 2005.  This would satisfy his request for a
fair promotion, and the Army would not be setting a precedent by changing
his recall orders.

4.  The applicant provides the following documents in support of his
application:  Self-Authored Letter; Officer Evaluation Reports (30 April
2003, 15 October 2003, 22 April 2004, and 4 February 2005); Officer Record
Brief (ORB); Recall Orders; and Extracts of Title 10 of the United States
Code, Sections 620, 628, 641, 12301, and 14317.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he was initially commissioned a
second lieutenant in the USAR on 17 May 1987.  He was promoted to first
lieutenant on 5 October 1989. and to captain on 1 May 1992, and major on 5
October 1998.

2.  On 8 March 2002, United States Army Total Army Personnel Command
(PERSCOM), St. Louis, now known as HRC-St. Louis, published Orders Number A-
03-290737.  These orders ordered the applicant to active duty as an
Obligated Volunteer Officer for 3 years in a Voluntary Indefinite Status,
effective 1 May 2002, under the provisions of Title 10 of the United States
Code, Section
12301d (10 USC 12301d).  These orders did not stipulate that the applicant
would remain on the RASL.

3.  On 13 July 2006, HRC-Alexandria published the results of the Active
Component FY06 LTC Army Competitive Category promotion selection list.  The
applicant's name was on the Operational Support (OS) portion of the list
with the sequence number 07.  This list is currently pending Senate
confirmation.

4.  In connection with the processing of this case, an advisory opinion was
obtained from the HRC-St. Louis, Chief, Special Actions Branch, Office of
Promotions, Reserve Components (RC).  This RC promotion official opines
that the applicant is not eligible for promotion consideration by a
Department of the Army (DA) SSB.  He states that the orders ordering the
applicant to active duty did not stipulate that he would remain on the
RASL.  Therefore, he was properly placed on the ADL.  He further states
that any officer who enters active duty for more than 3 years as of 28
December 1981, and whose orders do not stipulate he is to remain on the
RASL is automatically placed on the ADL.  He further comments that the
applicant has been on active duty for more than 3 years; therefore, his
correct status is on the ADL.  Further, based on his ADL status, he is not
eligible for promotion consideration by a DA RCSB, SSB.  He finally
recommends the applicant's request be denied.

5.  On 7 August 2006, the applicant provided a rebuttal to the HRC-St.
Louis advisory opinion.  He states that the official providing the advisory
opinion apparently did not understand the premise of his argument, or did
not want to openly acknowledge a flawed Army policy that places officers
recalled to active duty at risk for promotion.

6.  In his rebuttal, the applicant claims that he was recalled as a senior
major while serving in the RC, and was considered for promotion within two
years of returning to active duty.  His initial appeal was to amend his
recall orders to stipulate retention on the RASL in order to be fairly
reconsidered for promotion by an SSB.  He further states that according to
the advisory opinion, his orders did not stipulate that he would remain on
the RASL, so he was properly placed on the ADL.  His rebuttal is that while
it is true his orders did not stipulate retention on the RASL, his argument
was based on the legal option the Army had to keep him on the RASL until
after promotion consideration.

7.  The applicant further states that by law, recalled Reserve officers may
be retained in the Reserve system for up to three years, and provides for
fairness in the promotion system.  His opinion is that it is unfair for
officers with primarily Reserve experience to compete for promotion with
Regular Army officers, especially if they are recalled within two years of
promotion consideration.  Unfortunately, the Army adds all recalled
officers to the ADL without prudently considering the career status of the
officer.

8.  In addition, the applicant states that regarding the issue of the three
year active duty term, the advisory opinion states, in effect, that any
officer who enters active duty for more than three years will be placed on
the ADL, and while he has been on active duty for more than three years,
his recall orders stipulated a term of only three years, and during his
first three years, he clearly could have been retained on the RASL.
Therefore, this point in the advisory opinion is irrelevant to his initial
argument.

9.  The applicant further states that given his recent selection for
promotion to LTC by the Fiscal Year 2006 (FY06) promotion board, he is
amending his original application and is now requesting his LTC promotion
effective date and date of rank be adjusted to reflect a 2004 or 2005
effective date.  He claims the FY06 board was his second above the zone
board and his third look overall.  He claims that for this board he
prepared a letter explaining his unique situation and asked for special
consideration.  He states that he did not send a letter to previous boards
because he was advised not to call attention to anything that would be
perceived as a disadvantage to the board members, such as a long break from
active service.  However, explaining his situation to the FY06 board seemed
to make a difference because his performance has been consistent overall.
He concludes by stating that he believes adjusting his date of rank is a
fair compromise.  The Army would not be setting a precedent by changing his
recall orders, and he would achieve his desire of a fair promotion.

10.  The applicant provides extracts of 10 USC 12301, 10 USC 620, 10 USC
628, and 10 USC 14317 in support of his application.  10 USC 12301 provides
the legal authority to order members of the RC to active duty during a time
of war or national emergency.  Sub-paragraph (d) states, in pertinent part,
that at any time an authority designated by the Secretary concerned may
order a member of a RC under his jurisdiction to active duty, or retain him
on active duty, with the consent of that member.

11.  10 USC 620 provides guidance on the ADL.  It states, in pertinent
part, that under regulations prescribed by the Secretary of the military
department concerned, a Reserve officer who is ordered to active duty
during a war or national emergency, and who would otherwise be placed on
the ADL, may be excluded from the list as determined by the Secretary
concerned.

12.  Title 10, Sub-Title A, Part II, Chapter 36 contains guidance on
promotion, separation, and involuntary retirement of officers on the ADL.
10 USC 641 contains guidance on the applicability of chapter 36.  It
states, in pertinent part, that Reserve officers on active duty under
section 12301(d) are not subject to the provisions of chapter 36 if the
call or order to active duty, under regulations prescribed by the Secretary
concerned, specifies a period of three years or less and continued
placement on the RASL.

13.  10 USC 628 provides guidance on SSBs.  It states, in pertinent part,
that if the Secretary of the military department concerned determines that
because of an administrative error a person should have been considered for
selection for promotion by a promotions board was not so considered, or
that a material unfairness existed in the case of a person who was
considered for selection for promotion by a promotion board, may be
considered for promotion by a SSB.

14.  10 USC 14317 provides guidance on officers in transition to and from
the active status list or ADL.  It states, in pertinent part, that a
Reserve officer who is on a promotion list as a result of selection for
promotion by a mandatory promotion board who before being promoted is
placed on the ADL of the same Armed Force and placed in the same
competitive category shall, under regulations prescribed by the Secretary
of Defense, be placed on an appropriate promotion list for officers on the
ADL.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have been retained on the
RASL at the time he was ordered to active duty under the provisions of 10
USC 12301(d), and that he should have continued to compete for promotion in
the RC, and the supporting documents he submitted, along with his amended
request to change the effective date and date of rank of his promotion to
LTC, were carefully considered.  However, there is insufficient evidence to
support granting the requested relief.

2.  The applicant's argument is that because he was not ordered to active
duty for a period of more than three years, he could have been retained on
the RASL and competed for promotion in the RC before an RCSB.  However,
while his argument can be supported by a general reading of the governing
law, this law leaves this option to the Secretary's discretion.  It is
clear, given his orders do not stipulate that he would remain on the RASL,
that the governing policy in effect at the time he was ordered to active
duty was to place Reserve officers ordered to active duty under 10 USC
12301(d) on the ADL.  Absent any evidence that exceptions to this policy
were granted upon the request of the officer concerned, it would not be
appropriate, or in the interest of all those who faced similar
circumstances to amend his active duty orders to show he remained on the
RASL.

3.  Further, the evidence of record confirms the applicant was properly
considered for promotion by appropriate ADL promotion selection boards, and
there is no indication that his record contained a material error that
would support reconsideration by an SSB during any of these considerations.
 Therefore, there is also an insufficient evidentiary basis to support his
original request for promotion reconsideration by an SSB, or his amended
request to change his LTC promotion effective date and date of rank to an
earlier 2004 or 2005 date.

4.  In addition, the applicant was not selected for promotion by a
mandatory promotion selection board prior to his being added on the ADL.
As a result, there was no basis to add him to the appropriate ADL promotion
list upon his order to active duty.

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

___ENA _  __RML __  __ROM__  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.




                                  _____Eric N. Anderson ____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016259                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/09/14                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |131.0500                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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