RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  18 December 2007
	DOCKET NUMBER:  AR20070014110 


	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.  


Ms. Catherine C. Mitrano

Director

Ms. Rene’ R. Parker 

Analyst


The following members, a quorum, were present:


Mr. John Slone

Chairperson

Ms. Marla Troup

Member

Mr. Thomas Ray

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 of his promotion to lieutenant colonel (LTC) from the Reserve Active Status List (RASL).

2.  The applicant defers to his father-in-law.  The applicant’s father-in-law requests assistance from his Congressman to facilitate the reinstatement of the applicant’s promotion.  The father-in-law states that the applicant is a career Army Reservist who was promoted to LTC by an Army Reserve Component Selection Board from the RSAL while serving on active duty.  The father-in-law provides his Congressman a brief synopsis of the applicant’s work ethic and accomplishments while serving as a Reservist.  

3.  The father-in-law explains that the applicant volunteered for an active duty tour and was transferred from the United States Army Reserve (USAR) Reinforcement and assigned on active duty effective 15 July 2001.  He maintains that the applicant’s accession order specified Authority Code 12301(D) and a period of three years.  He argues that in accordance with the Fiscal Year (FY) 2001 National Defense Authorization Act (NDAA), Reservists accessed under this code and whose orders specify a period of three years or less, are to be considered for promotion by the Army Reserve Component Selection Board.  The applicant’s father-in-law states that the applicant continued to pursue his promotion and in August 2002, he was informed that his promotion potential would be considered by the Active Duty Selection Board. 

4.  The father-in-law insists that the decision to consider the applicant’s promotion potential by the Active Duty Selection Board was based on the verbiage introduced in the FY2002 NDAA which was awaiting legislative approval and Presidential signature.  He reiterates the fact that the applicant was placed on active duty prior to the FY2002 NDAA being enacted.   

5.  The applicant's father-in-law is, in effect, arguing that under the provisions of the FY2001 NDAA the applicant should have been considered for promotion by the RSAL and not by the Active Duty Selection Board.  He contends that as such his selection by the RSAL in September 2003 should be upheld and the applicant should be promoted.

6.  The applicant provides a copy of NGB Form 22 (Report of Separation and Record of Service), Congressional Correspondence, Federal Recognition Status, and a Selective Continuation on Active Duty Memorandum.


CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed in the United States Army Reserve as a second lieutenant on 24 July 1981.  He was promoted to major effective 12 February 1997.  He is currently on active duty.

2.  On 10 May 2001, he was ordered to active duty to fulfill an active Army requirement with a reporting date of 15 July 2001.  The order shows that he volunteered for a 3-year obligation and was assigned to Fort Leavenworth, Kansas.  Additionally, the order stated that “immediately upon arrival at duty station, the Personnel Service Center with responsibility for processing the officer’s records will initiate a DD Form 220 (Active Duty Report) and perform service computation.  These documents and a DD form 214 will be forwarded when completed to the Personnel Command (now the Army Human Resources Command) for date of rank and promotion eligibility date in accordance with paragraph 2-3, Army Regulation 600-8-29.”  The applicant was accessed and counted against the end strength of the active Army.

3.  The FY2001 NDAA added paragraph D to Chapter 36, Subchapter V, Section 641(1) of Title 10, United States Code (USC).  The added paragraph noted that Chapter 36 would not apply to individuals on the reserve active status list who are on active duty under section 12301(d) of this title, other than as provided in subparagraph C, under a call or order to active duty specifying a period of three years or less.

4.  The FY2002 NDAA added the statement "and continued placement on the reserve active status list" to paragraph D of Section 641(1).

5.  Chapter 36 of Title 10, USC established provisions for the "promotion, separation, and involuntary retirement of officers on the reserve active duty list."  Subchapter V provided "additional provisions relating to promotion, separation, and retirement" and section 641 outlined the categories of officers who were "not subject to this chapter…."  Section 641(1)(A) notes that reserve officers on active duty "excluded from counting for active duty end strengths" were not subject to the provisions of Chapter 36.

6.  A review of the applicant’s records reveal that he was considered by the Lieutenant Colonel, Army Competitive Category, Selection Board that convened on 25 February 2003.  He was subsequently considered each year thereafter but not selected. 

7.  The applicant was considered and selected for promotion to LTC by the Reserve Component Selection Board (RCSB), which convened on 3 September 2003 and recessed on 19 September 2003.  The President approved the board results on 24 January 2004.

8.  On 12 April 2004, the Chief, Special Actions Branch, Office of Promotions, Reserve Components, St. Louis, Missouri, stated that the applicant was ordered to active duty on 15 July 2001 for a period of three years.  As a result, he was deleted from the 2003 LTC RCSB.  The Chief, Special Actions Branch, provided the applicant a copy of the voided promotion memorandum.  

9.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officer Other Than General Officer) prescribes the policies and procedures for promotion of Reserve officers.  The regulation states that to be eligible for consideration for promotion to the next higher grade, an Army National Guard or USAR officer must have continuously performed service on either the RASL or the ADL (or a combination of both lists) during the 1- year period ending on the convening date of the promotion board and must meet the time in grade requirements as appropriate. 

10.  Additionally, the same regulation states, in pertinent part, that an officer will be removed from a promotion list if the officer was not in an active status or was in an active status in error at the time of consideration.  A promotion advisory board is not required for a determination that an officer was ineligible for consideration. 

11.  Title 10, USC, Section 12301(d) specifies that any time, an authority designated by the Secretary concerned may order a member of a Reserve Component under his jurisdiction to active duty, or retain him on active duty, with the consent of the member.

12.  Title 10, USC, Section 14317(e) specifies that USAR officers ordered to active duty in time of war or national emergency, may, if eligible, be considered for promotion by a mandatory promotion board convened under section 14101(a) (convene a promotion board to recommend for promotion officers on the RASL) for not more than 2 years from the date the officer is ordered to active duty.

13.  Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system.  The regulation states that the Commanding General, Army Human Resources Command, will conduct and 
supervise officer promotion functions prescribed in this regulation.  Additionally, paragraph 2-3 states that the Army Human Resources Command will determine active date of rank and pay entry date for all officers upon entry on active duty.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to reinstatement to the RASL or promotion to lieutenant colonel.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The applicant’s father-in-law argues that because the applicant was ordered to active duty for a period of three years or less he was eligible for promotion consideration by the RASL and that the provisions of the FY2001 NDAA supported that argument.

3.  However, while the applicant may have initially been ordered to active duty for three years he was none the less ordered to active duty for the purpose of filling an active duty requirement and as such was counted against the end strength of the Army.  Under the provisions of Section 641(1)(A) of Title 10 USC he would therefore not have been exempt from the provisions of Chapter 36 which established the promotion, separation, and involuntary retirement of officers of the active duty list.  

4.  The applicant was correctly considered for promotion by the LTC, Army Competitive Category, Selection Board in February 2003 and should not have been considered by the RASL in September 2003.  The removal of his name from the RASL was correct and creates no error or injustice.

5.  The issue here is really about the applicant being counted against the end strength of the active Army and not whether the provisions of Section 641(1)(D) established by the FY2001 NDAA applied to him.  That provision would not have applied to the applicant because he was ordered to active duty to fulfill an active Army requirement, and as such, counted against the active Army end strength.
The FY2001 and FY2002 NDAA have no bearing in the applicant’s case. 

6.  Evidence of record shows that the applicant volunteered to serve on active duty for a period of three years to fulfill an active Army requirement and reported for duty on 15 July 2001.  His orders specifically state that his promotion will be in accordance with Army Regulation 600-8-29 which governs active Army officers.


7.  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

___JS___  __MT   __  ___TR   _  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 Slone_________
          CHAIRPERSON



INDEX

CASE ID
AR20070014110
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071218
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
131.00
2.

3.

4.

5.

6.