RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 March 2007
	DOCKET NUMBER:  AR20060010826 


	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. Lisa O. Guion

Analyst

The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. Scott W. Faught

Member

Mr. Roland S. Venable

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 two additional years of qualifying service for non-regular retirement at age 60.  

2.  The applicant states, in effect, that due to a promotion board error, he was retroactively promoted to the rank of colonel (COL) ten years after the fact and subsequent to his 1 June 1999 transfer to the Retired Reserve, in the rank of lieutenant colonel (LTC), by reason of reaching his mandatory removal date (MRD) as a LTC, which was 28 years.  He further states that on 28 April 2005, when he was retroactively promoted to COL, effective 14 December 1995; however, at this time he was not credited with or allowed to serve the 2 additional years he would have been allowed to serve as a COL before reaching the 30 year MRD for that rank.  He now requests that he be granted the additional 
2 years of service credit he would have been allowed to serve had he been promoted in a timely fashion.  He indicates he is not requesting pay, only the retirement points he would have earned toward his non-regular retirement. 

3.  The applicant provides the following documents in support of his request:  Self-Authored Statement; Chief, Office of Promotions, Reserve Components (RC), Army Human Resources Command (AHRC) Memorandum, dated 28 April 2005; Chief, Office of Promotions, RC AHRC Letter, dated 4 May 2005;
AHRC-St Louis (formerly known as U. S. Army Reserve Personnel Command) Order Number C-01-902135, dated 22 January 1999;  AHRC-St Louis Order Number C-01-902135R, dated 20 April 2005; and AHRC-St Louis Order Number C-06-509964, dated 1 June 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant's discovery of this alleged error or injustice occurred on 28 April 2005, when he was retroactively promoted to COL.  Therefore, his application is considered to have been submitted in a timely fashion, within the 3-year statute of limitations of the Army Board for Correction of Military Records (ABCMR).  

2.  The applicant’s record shows that his date of birth is 4 April 1950, and that he first enlisted and entered the Reserve Officer Training Corps (ROTC), in the rank of private first class, on 8 September 1969.  He was honorably discharged from the USAR on 25 May 1971, in order to accept a commission in the Army.

3.  On 26 May 1971, at the age of 21, the applicant was appointed a Reserve commissioned officer of the Army in the rank of second lieutenant (2LT).  He continuously served in an active USAR status until his transfer to the Retired Reserve on 1 June 1999.
4.  On 22 January 1999, AHRC-St. Louis, Order Number C-01-902135 directed the applicant's reassignment to the Retired Reserve on 1 June 1999, by reason maximum authorized years of service.  

5.  On 20 April 2005, AHRC-St. Louis Order Number C-01-902135R revoked their previously issued Order Number C-01-902135R, thus voiding the applicant’s 1 June 1999 transfer to the Retired Reserve.  

6.  A Chief, Office of Promotions, RC, AHRC-St. Louis Letter, dated 28 April 2005 retroactively promoted the applicant to COL, effective 14 December 1995, and AHRC-St. Louis Order Number C-06-509964, dated 1 June 2005, directed the applicant’s reassignment to the Retired Reserve, in the rank of COL effective 1 June 2005.  

7.  A Chronological Statement of Retirement Points (AHRC Form 249-E), dated 25 May 2006, which documents the applicant's USAR service, shows he completed a total of 27 years of qualifying service for retirement.  It also shows that during the retirement year ending (RYE) on 25 May 1999, his last year in an active status, he earned 44 creditable points.  

8.  In connection with the processing of this case, an advisory opinion was obtained from the Human Resources Assistant, 81st Regional Soldier Support Center, Development Directorate, AHRC, St. Louis.  This HRC official recommended the applicant be awarded sufficient points for his retirement years ending 25 May 2000 and 25 May 2001, giving him two additional qualifying years prior to completing his 30 years Reserve commissioned service on 26 May 2001. On 5 January 2007, the applicant concurred with this advisory opinion. 

9.  Title 10 of the United States Code, Section 14507 contains the legal authority for removal from the Reserve Active Status List (RASL) for years of service for Reserve lieutenant colonels and colonels of the Army, Air Force, and Marine Corps and Reserve commanders and captains of the Navy.  Paragraph A states, in pertinent part, that Reserve Lieutenant Colonels and Commanders who is not on a list of officers recommended for promotion to the next higher grade shall (if not earlier removed from the RASL) be removed from that list on the first day of the month after the month in which the officer completes 28 years of commissioned service.  Paragraph B states, in pertinent part, that Colonels and Navy Captains who is not on a list of officers recommended for promotion to the next higher grade shall (if not earlier removed from the RASL) be removed from that list on the first day of the month after the month in which the officer completes 30 years of commissioned service.  

10.  Army Regulation 140-85 prescribes the policy for awarding retirement points. It stipulates that each member will be granted 15 membership points for each year they are in an active status, and that 50 points in a year is necessary for that year to be a qualifying year for retirement.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that he should be granted two additional qualifying years of service to account for the 2 additional years he would have been allowed to serve before reaching the 30 year MRD had he been promoted to COL in a timely fashion has been carefully considered and found to have merit.  

2.  By law, commissioned officers in the rank of LTC, will be removed from the RASL upon completion of 28 years of commissioned service.  Those commissioned officers in the rank of COL will be removed from the RASL upon completion of 30 years of commissioned service.   

3.  The evidence of record confirms the applicant was transferred to the Retired Reserve on 1 June 1999, as a result of reaching the maximum years of authorized service as a LTC, and that at the time, he had completed 27 years of qualifying service for retirement.  

4.  On 28 April 2005, the applicant was retroactively promoted to the rank of COL, effective 14 December 1995, almost ten years after the fact.  The evidence further shows that as a result of the retroactive promotion, the applicant was never afforded the opportunity to complete the additional years of service in an active Reserve status his promotion to COL should have allowed based on his authorization to complete 30 years in that rank.  Clearly, had the applicant been timely promoted to the rank of COL on 14 December 1995, while he was still serving in an active status in the USAR, he would have been authorized to continue his service through 30 years prior to reaching his MRD as a COL.  

5.  In view of the facts of this case, given the applicant’s promotion to COL was not announced until 20 April 2005, almost 10 years after the effective date of his promotion, it would be appropriate and serve the interest of justice and equity to grant the requested relief.  

6.  Therefore, the applicant's record should be corrected to show he earned 
50 creditable points in each of the RYEs on 25 May 1999, 25 May 2000, and 
25 May 2001, and a total of 30 qualifying years for non-regular retirement at age 60.  His record should also be corrected to show he was transferred to the Retired Reserve, in the rank of COL, on 26 May 2001, upon completing 30 years of commissioned officer service in the USAR.  
BOARD VOTE:

__JEA __  __SWF__  __RSV __  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief and to excuse failure to timely file.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he continuously served in an active status in the United States Army Reserve from 26 May 1971 through 25 May 2001, and that he earned 50 creditable points in each of the retirement years ending on 25 May 1999, 25 May 2000, and 25 May 2001, and a total of 30 qualifying years of service for non-regular retirement at age 60; and by showing he was transferred to the Retired Reserve in the rank of COL, on 26 May 2001, upon completion of 30 years of commissioned officer service.  





_____James E. Anderholm___
         CHAIRPERSON   


INDEX

CASE ID
AR20060010826
SUFFIX

RECON
NO
DATE BOARDED
2007/03/06
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
2001/05/25
DISCHARGE AUTHORITY
AR 140-10
DISCHARGE REASON
Retirement
BOARD DECISION
GRANT
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
135.0200
2.

3.

4.

5.

6.