RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 November 2006
      DOCKET NUMBER:  AR20050017983


      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. Thomas A. Pagan               |     |Chairperson          |
|     |Mr. Peter B. Fisher               |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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, credit for the time he would have
drilled and for annual training with compensation up to the time he reached
his mandatory removal date (MRD).  He also requests reinstatement to an
active Reserve status in his position of the officer in charge (OIC) of the
State Department Cell.

2.  The applicant states that he was wrongfully forced to transfer to the
Individual Ready Reserve (IRR) by his commanding officer.  He also states
that in October 2001 he was selected to be the OIC with a unit that worked
with the United States (US) Department of State.  He was a lieutenant
colonel serving in a colonel's position and a Judge Advocate General's
Corps (JAGC) officer assigned to the US Intelligence and Security Command,
Fort Belvoir, Virginia, but had received special permission from the JAGC
to be placed in this non-JAGC assignment.  In January 2003, he reached his
MRD for a lieutenant colonel and was transferred to the IRR.

3.  The applicant also states that prior to his retirement, in December
2002, the unit had a drill with all members of the unit present, including
some that he had not seen before.  Some of the members reflected that they
could not understand why he, a Jewish JAGC officer, was assigned to the
unit and why he was so interested in counter-terrorism.  Some expressed
concerns about his perceived close ties to Israel.  He took this as
definite anti-Semitism and questioning of his loyalty to the US.

4.  The applicant further states that in January 2003, he left command of
the unit awaiting retirement; however, in July 2003, he was notified that
he had been selected by a special promotion board to colonel.  His
retirement orders, dated 14 May 2003, were revoked on 16 August 2003.
Since he had been filing a colonel slot with the State Department unit and
had been promoted to colonel, it was fitting that he should go back to that
position.  When he called the State Department to tell them he was
returning, he was advised that he could not report there and was not
welcome there.  He was then advised by his control unit, the Army Reserve
Unit (ARU) – Consequence Management, Edgewood Arsenal, not to report to the
State Department and he was not to attend drills as he was going to be
transferred to the IRR.  The ARU commander directed that he be immediately
assigned to his unit.  The commander also directed that if he wanted to be
promoted to colonel, he had to transfer to the IRR.  He protested and the
commander did not sign his paperwork approving his promotion.  Therefore,
he signed the request for transfer to the IRR in order to get promoted.

5.  In summary, the applicant states that he was wronged by his commander
by not permitting him to drill with the unit he was assigned to by the
Human Resources Command (HRC) at the State Department or by not finding him
another comparable position.  He feels some members of that unit questioned
his loyalty to the US and had an anti-Semitic bias against his returning
for which there was no basis.  He feels that he was wronged by his
commander in not permitting him to drill with his unit and forcing him to
go to the IRR to get promoted.

6.  The applicant provides copies of his officer evaluation reports for the
years 1997, 1998, 1999, 2001, and 2002; his US Department of State
assignment memorandums; electronic mail (email) correspondence from the
ARU; his US Department of States MRD Extension memorandums; the unit
manning report (UMR) for the WBB41 United States Army Reserve (USAR) Unit
for Emergency; his Request for Approval of Non-JA Assignment memorandum;
his Promotion Consideration memorandum; his revocation orders; email from a
staff member of the Total Army Personnel Command; the UMR for the SA-4E,
S/CT, Washington, DC; email correspondence from the Commander, ARU –
Consequence Management; his reassignment orders; email correspondence from
the USARC, Senior JA., in support of his requests.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was appointed in the USAR,
JAGC, as a first lieutenant, effective 15 January 1975, with 4 years, 10
months, and 23 days constructive service credit and with prior enlisted
service.

2.  He was promoted to lieutenant colonel effective 13 September 1990.

3.  His officer evaluation reports for the years 1997, 1999, 2001, and 2002
show he was rated best qualified in these years and fully qualified in
1998.  He was placed center of mass for each rating period for the years
1998, 1999, 2001, and 2002, and rated top block for the year 1997.

4.  He was considered and not selected for promotion to colonel by the
2000, 2001, and 2002 Reserve Components Selection Boards (RCSB).

5.  In a letter, dated 22 May 2001, a staff member of the US Department of
State, requested approval for the applicant to serve in a non-JA
assignment.  The USAR was currently establishing a unit to support the
Coordinator for Counter-Terrorism, US Department of State.  The unit was
programmed to activate on 16 October 2001.
6.  In a memorandum, dated 8 August 2001, the Acting Judge Advocate General
of the Army, advised the applicant that effective 10 August 2001, his
request to serve in a non-JA position as Operations and Liaison
Coordinator, USAR Consequence Management Unit, Edgewood Arsenal, Maryland,
was approved for 3 years or until his MRD, whichever occurred first.

7.  On 1 October 2001, the applicant began serving in a position with the
State Department.

8.  In letters, both dated 22 February 2002, the Deputy Coordinator, S/CT,
Operations, US Department of State and the Coordinator for Counter-
Terrorism, US Department of State, expressed support for the applicant's
request for an extension of his MRD.  The State Department official stated
that the applicant was serving as the OIC of the ARU – Crisis Management
Cell supporting the Secretary of State, Office of the Coordinator for
Counter-Terrorism.

9.  The applicant's Chronological Statement of Retirement shows for his
retirement years from 25 January 2003 to 24 January 2005 he earned no
inactive duty points and no active duty points.  As a result, he only
earned 15 membership points for being a member of the IRR.

10.  The applicant reached his MRD as a LTC in February 2003 and was
transferred to the IRR, based on 28 years of commissioned service as a LTC.


11.  The Chief, Office of Promotions, Reserve Components, Army Reserve
Personnel Center, St. Louis, Missouri, issued the applicant a promotion
consideration memorandum, dated 23 July 2003.  The memorandum advised the
applicant that he had been recommended for promotion to colonel by a
special selection board (SSB) under the 2001 year criteria.  The memorandum
further advised that upon final processing, a promotion letter would be
forwarded to him with a date of rank of 8 December 2001, the date of Senate
confirmation of the 2001 RCSB.

12.  The applicant was issued a promotion memorandum, dated 23 July 2003,
showing his promotion to colonel with a promotion effective date and date
of rank of 8 December 2001.  His colonel MRD would then be established as 1
February 2005, based on 30 years of commissioned service.

13.  The applicant was reassigned to the USAR Control Group (IRR), in the
grade of colonel, effective 17 October 2003.

14.  The applicant's Chronological Statement of Retirement Points shows
from 25 January 2004 to 24 January 2005, he earned 32 IDT points, 22
extension course points, 15 membership points, and 11 AD points, earning
him one qualifying year for retirement.

15.  In email correspondence, dated 31 March 2004, the USARC SJA, stated
that the applicant's case was reviewed to determine what, if any, issues
pertained to the USARC.  The USARC determined that the applicant filled a
colonel position at the State Department unit while serving as a lieutenant
colonel.  The applicant was granted special permission by the Office of The
Judge Advocate General (OTJAG) to fill the non-JAG position.  The applicant
attended drills, did ADSW, and attended schools relating to the State
Department job.  When he approached his MRD, another lieutenant colonel
assumed the duties performed by the applicant.  The applicant hit his MRD,
discontinued drills, and was transferred to the Retired Reserve.  Six
months later, he was notified that he was picked up for promotion after
action by the Army Board for Correction of Military Records (ABCMR) and a
SSB, with an effective date 2 years prior.  The applicant contacted his
previous unit and was advised that they did not have a place for him and he
should transfer to the IRR.  The applicant's former commander advised him
that he would not sign a Form 155-R (Promotion Qualification Statement)
until the applicant signed a transfer to the IRR.  The applicant
reluctantly acquiesced, signed the transfer request, and was promoted and
assigned to the IRR.

16.  The OTJAG official also stated that the applicant's previous commander
advised them that even if the position was not filled, he did not want the
applicant to return to his old job because he was dissatisfied with the
applicant's previous performance in the position, a better qualified
Soldier was currently serving in the position, and he could not support a
request to TJAG for a non-JAG assignment. The USARC G-1 opined that there
was no regulatory or other guidance which compelled reinstatement of a
Soldier into a previously held position upon selection for promotion by a
SSB (absent an ABCMR order to do so).  The applicant advised the OTJAG that
the ABCMR order which enabled him to be considered for promotion did not
provide that he was to be reinstated in his old State Department unit
position.  In light of the foregoing, they saw no real solution to the
applicant's dilemma.  The applicant had the bad luck to be forced into
retirement before the ABCMR and a SSB could get him promoted to colonel.
The applicant's former commander appropriately exercised his discretion to
assign a new lieutenant colonel into the position previously held by the
applicant. The applicant had no right to return to the position upon his
subsequent selection for promotion.  OTJAG considered this matter to be
closed.

17.  The applicant was transferred from the USAR Control Group
(Reinforcement), as a colonel, and placed on the retired list effective 9
July 2005, for maximum years of service.

18.  He reached his 60th birthday on 9 July 2005.

19.  The Chief, Office of Promotions, Reserve Components, HRC, verified
that on an unknown date the applicant's MRD was extended 1 August 2005,
based on maximum age.

20.  The applicant's Chronological Statement of Retirement Points, dated
29 August 2006, shows he was credited with 34 qualifying years for
retirement as of 2 August 2005.

21.  Army Regulation 135-155 prescribes the policies and procedures for the
promotion of Reserve officers.  This regulation specifies that an officer
selected by a promotion SSB, will have a date of rank and effective date
for pay the same as if the officer had been recommended for promotion to
that grade by the mandatory board that did consider the officer.

22.  Army Regulation 135-155 also specifies that subject to the needs of
the Army, officers in the grade of lieutenant colonel or colonel, pending
separation for reason of years of service may be selectively continued in
an active status in their present grade, but not beyond the date on which
the officer (Colonels) completes 35 years of commissioned service or age
60, whichever occurs first.  Separation will occur the first day of the
month after the month completing 30 years of commissioned service or
reaching age 60.

23.  Army Regulation 135-155, paragraph 4-21d of the regulation further
specifies that troop program unit (TPU) and Active Guard Reserve (AGR)
officers selected by a mandatory board will be promoted provided they are
assigned/attached to a position in the higher grade.  A TPU or AGR officer
who is selected for promotion by a mandatory promotion board, but who is
not assigned/attached to a higher graded position will be promoted on the
date of assignment/attachment to a higher graded position or the day after
release from a TPU or AGR status.  The effective date of promotion and date
of rank will be the date on which assigned/attached to a position in the
higher grade.

24.  Army Regulation 140-10 provides, with some exception, for separation
of majors, lieutenant colonels, and colonels for maximum age and/or
service.  It specifies that colonels may not exceed 30 years of service or
age 60.  This regulation also provides that removal must be accomplished
within 30 days after the date of completion of the required years of
service.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant should receive
credit for a portion of the time he would have drilled prior to his
reaching his MRD.

2.  The applicant was selected for promotion to colonel, with an effective
date of 8 December 2001, by a SSB in July 2003.  On 8 December 2001, the
applicant was serving in a colonel's position at the State Department.
Based on him occupying a drilling colonel's position on 8 December 2001, he
was entitled to promotion to colonel with a promotion effective date and
date of rank of 8 December 2001.  Therefore, he is entitled to payment of
the difference between the lieutenant colonel and colonel pay for any
period of IDT or annual training served between 8 December 2001 to 9 July
2005, the date he went into a retired status.

3.  The applicant has shown he would have participated in the Reserve to
earn a qualifying year for retirement from 25 January 2003 to 24 January
2004, had he been promoted to colonel in 2001.  In the year following this
period, the applicant earned 80 points or a qualifying year for retirement
and prior to this period, had established a long track record of qualifying
years.  The applicant did not participate after 25 January 2003 because he
planned to retire upon his MRD for lieutenant colonel in February 2003 with
28 years of commissioned service.  He learned of his promotion to colonel
by the SSB in late July 2003.  As a matter of fairness, this did not
provide him sufficient time to find a new unit to drill with (since he
wasn't allowed to return to his position at the State Department) and
complete all Reserve requirements by 24 January 2004.

4.  As a matter of equity, it would be appropriate to determine that the
applicant should receive credit sufficient to constitute a qualifying year
and payment for the periods of IDT and annual training he would have served
from 25 January 2003 to 24 January 2004.  Based on the average of his last
three qualifying years, the applicant could have been expected to serve
32 IDT days, 29 days of annual training, and 15 membership points.

5.  The applicant is not entitled to reinstatement to his previous position
as the OIC of the State Department Cell.  Effective 10 August 2001, the
applicant was approved to serve in a non-JAG position as Operations and
Liaison Coordinator, USAR Consequence Management Unit, Edgewood Arsenal,
Maryland, for 3 years or until his MRD, whichever occurred first.  While,
he was serving in a colonel's position, he had not been selected for
promotion to colonel.  Prior to his selection for promotion to colonel by a
SSB, he reached his MRD and was released from that unit.

6.  Pertinent regulations do not provide for reinstatement into a
previously held higher graded position upon selection for promotion by a
SSB.  The applicant has submitted documentation that show his commander was
not satisfied with his previous performance and that he could not support a
request to OTJAG for a non-JAG assignment for the applicant.  This
documentation casts doubt on the applicant's claim that he was denied
equitable reinstatement.  Under the circumstances of this case, there is
insufficient evidence to overturn the decision of the commander not to
reinstate the applicant.  Crediting the applicant with a qualifying year,
as discussed above, and payment of the difference in pay between a
lieutenant colonel and colonel for creditable periods of service after
8 December 2001 makes the applicant whole.

7.  The applicant's promotion to colonel was a result of his transfer to
the IRR.  Applicable regulations clearly show that Reserve Component
officer may be promoted if occupying a higher graded position or upon
transfer to the IRR.  The evidence of record also shows that the applicant
had completed over 30 years of commissioned service; therefore, he is not
eligible for extension of his MRD and reinstatement in an active Reserve
status.

8.  In view of the foregoing, there is no basis for granting the
applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__PBF___  __TAP__  __LD ___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected:

      a.  by showing he was promoted to colonel effective 8 December 2001,
with entitlement to payment of the difference in pay and allowances between
lieutenant colonel pay and colonel pay for any period of inactive duty
points and annual duty performed between 8 December 2001 to 9 July 2005;

      b.  by crediting the individual with 32 inactive duty points, and 29
active duty points, and 15 membership points, with entitlement to back pay
and allowances in the rank of colonel from 25 January 2003 to 24 January
2004; and


      c.  by showing the retirement year 25 January 2003 to 24 January 2004
as a qualifying year for retirement pay purposes and issuing him a
corrected Chronological Statement of Retirement.


2.  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
reinstatement into his previous position at the State Department or
extension of his MRD.




                                  _____Thomas A. Pagan_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050017983                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061121                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT PARTIAL                           |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.00                                  |
|2.                      |135.02                                  |
|3.                      |136.00                                  |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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