RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  
	DOCKET NUMBER:  AR20070007694 


	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.




Director



Analyst

      The following members, a quorum, were present:




Chairperson



Member



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, that his Mandatory Removal Date (MRD) be adjusted to 1 July 2005, the maximum date allowed for Colonel (COL) instead of 1 July 2003, the MRD for Lieutenant Colonel (LTC).  He also requests that he be awarded the retirement points that he would have earned had he served for the that period, 13 retirement points pending, but lost, because of the former MRD/ retirement date, for a total of 345 additional points.  He also requests that the ABCMR amend all Officer Evaluation Reports (OERs) after being promoted to colonel, and that the USAR be ordered to convene to consider him for promotion to Brigadier General (BG) for the year 2000 through 2005.

2.  The applicant states, in effect, that if he had been properly considered and selected by the FY 1999 USAR APL Board he would have been allowed to remain in an active Reserve status for 2 years longer earning additional retirement points.  In the previous 10 years, he had earned an average of 166 points/year.  He also states in effect, that if he had been properly considered and selected by the FY 1999 COL Board he would have been able to compete for selection to BG during the years 2000 through 2004.

3. The applicant provided U.S. Army Reserve Personnel Command Orders Number C-06-31432, dated 3 June 2003, Air War College Nonresident Programs, Verification of Completion, dated 7 August 2003, U.S. Army Reserve Personnel Command Orders Number B-04-703035, dated 27 April 2007, and a Chronological Statement of Retirement Points, dated 20 May 2007.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that the applicant was commissioned as an officer in the United States Army Reserve (USAR) on 1 June 1975, with prior enlisted service, at the age of 23 years.  His date of birth is 3 October 1952.  He is an Air Defense Artillery (ADA) officer.

2.  Department of the Army, U.S. Army Reserve Personnel Command Orders Number C-06-31432, dated 3 June 2003, shows the applicant was released from his assignment in the USAR Control Group (IMA) [Individual Mobilization Augmentation] and was assigned to the Retired Reserve in the grade of LTC effective 1 July 2003 for the reason of reaching maximum authorized years of commissioned service.

3.  Records show that the applicant was considered by a Special Selection Review Board (SSB) for consideration for promotion to colonel under the 1999 criteria and was selected for promotion to colonel.  Department of the Army, U.S. Army Reserve Personnel Command Orders Number B-04-703035, dated 27 April 2007, show that the applicant was promoted to the grade of colonel effective 
30 March 2000 with the date of rank of 30 March 2000.  The applicant’s OERs from 2000 through 2005, shows that he was a LTC performing duties as a LTC. There is no evidence in his record to show that he was performing duties as a colonel.

4.  The applicant’s retirement point statement confirms that during the last 
10 years of his active service he earned an average of 166 retirement points per year.

5.  In connection with the processing of this case, an advisory opinion was obtained from the Chief, Transitions and Separations, U.S. Army Human Resources Command, St. Louis, Missouri.  This official recommended that the applicant’s MRD be adjusted to reflect the MRD for a COL as specified by law. Further, the applicant should be given credit and pay, as determined by the Board, for retirement points not earned due to his assignment to the Retired Reserve as a LTC.  The advisory opinion concludes by stating that their office could not comment concerning the Soldier’s request for retroactive consideration to BG. 

6.  The applicant was provided a copy of the advisory opinion in order to have the opportunity to respond to its contents.  He did not respond.

7.  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 LTC and COLs 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 are 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 are 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.

8.  Title 10 U.S.C. Section 1370(d) (3) (A) (B) (i) provides that an officer above the grade of lieutenant colonel may be credited with satisfactory service in that grade for the purpose of retirement after three years in an active status.  A person covered by subparagraph (A) who has completed at least six months of satisfactory service in grade may be credited with satisfactory service in the grade in which serving at the time of transfer or discharge, notwithstanding failure of the person to complete three years of service in that grade, if that person is transferred from an active status or discharged as a reserve commissioned officer solely due to the requirements of a nondiscretionary provision of law requiring that transfer or discharge due to the person's age or years of service.

9.  Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) 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.  

10.  DA Pam 623-3, Table 1c (Rank) in pertinent part, states that if the officer has been selected for promotion and is serving in an authorized position they will be rated in the promotable grade.  Table 1d, (Date of Rank) in pertinent part, states to enter the date of rank for grade in which serving as of the “Thru” date of the report.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his MRD should be adjusted based on his promotion to the grade of COL was carefully considered and determined 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 and those commissioned officers in the rank of COL will be removed from the RASL upon completion of 30 years of commissioned service.

3.  The applicant was promoted by an SSB to the grade of COL.  Therefore, he is entitled to extension of his MRD to reach 30 years of commissioned service.  Based on the fact that the applicant was commissioned on 1 June 1975, the applicant's adjusted MRD as a colonel would have been 1 July 2005.

4.  The evidence of record confirms the applicant was transferred to the Retired Reserve on 1 July 2003, as a result of reaching the maximum years of authorized service as a LTC, and that at the time, he had completed 28 years of qualifying service for retirement.

5.  Based on the applicant’s selection for promotion to COL by an SSB he was properly promoted on 27 April 2007 with an effective date and date of rank of 
30 March 2000.  Also based on this promotion the applicant was entitled to an adjustment of his MRD to 1 July 2005.  This again will require as a matter of law transfer to the Retired Reserve effective 1 July 2005.

6.  While the applicant’s transfer to the Retired Reserve as a result of his LTC MRD was not erroneous at the time, his subsequent selection for promotion by an SSB to COL included entitlement to a 2-year adjustment to his MRD which will now necessitate his return to an active status, award of constructive service credit, then again removal from an active status and returned to the Retired Reserve effective 1 July 2005 in the grade of COL.

7.  Based on award of 2 years of additional constructive service credit to the applicant, it would also now be appropriate to correct his record to show he earned an average of the last 3 years retirement points based on how the Board has historically resolved this issue.  The retirement years ending on 31 May 2004 and 31 May 2005 should be corrected to show 46 IDT, 15 Membership and 26 Active Duty for a total of 87.

8.  There is no evidence, nor did the applicant provide any evidence that shows on the ending dates of his OERs that he was a COL, a COL promotable, or was serving in a COL’s position when these OERs were rendered.  Therefore, he is not entitled to have his OERs corrected to show that he was a COL. 

9.  In view of the foregoing, the applicant should have been removed from an active Reserve status and transferred to the Retired Reserve effective 1 July 2005.  Based on all of the foregoing, the preponderance of evidence conclusively shows that there is no statutory or regulatory basis for extending the applicant's MRD beyond 1 July 2005, for promotion consideration to BG.

10.  In view of the foregoing, the applicant’s records should be corrected as recommended below.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x____  ___x____  ___x____  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 by:

	a.  voiding his transfer to the Retired Reserve effective 1 July 2003;

	b.  crediting him with 46 inactive duty points, 15 membership points and 26 active duty points for a total of 87 points for retirement year ending in 2004;

	c.  crediting him with 46 inactive duty points, 15 membership points and 26 active duty points for a total of 87 points for retirement year ending in 2005;

	d.  authorizing appropriate pay and allowances based on the above correction;

	e.  transferring him to the Retired Reserve in the rank of colonel effective 1 July 2005, based on completion of 30 years of commissioned officer service.

2.  The Board 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 correction of the OERs to show the grade of colonel, award of retirement point credit based on the average of the previous 10 years and to order that the USAR to consider the applicant for promotion to BG. 




      ___________x___________
                CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20070007694


2


DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
ARLINGTON, VA  22202-4508