IN THE CASE OF:	

	BOARD DATE:	4 December 2008  

	DOCKET NUMBER:  AR20080000898 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests through counsel, reconsideration of the Board's denial of his request for reinstatement of his promotion to lieutenant colonel (LTC) from the Reserve Active Status List (RASL).

2.  The applicant states, in effect, that his name was erroneously deleted from the promotion list.  He states that when his original request for correction was being reviewed, an advisory opinion was obtained from the U.S. Army Human Resources Command (USAHRC), St. Louis, MO and this opinion was relied upon to return the case without action.  However, the information in the advisory opinion was erroneous.

3.  The applicant provides, in support of his application, a copy of a letter brief from Counsel, undated; a letter from the Army Board For Correction of Military Records (ABCMR), dated 17 July 2006; U.S. Total Army Personnel Command Orders Number A-05-004830, dated 10 May 2001; his LTC promotion memorandum (Voided), dated 19 February 2004; USAHRC, Office of Promotions Reserve Components memorandum, dated 12 April 2004; and a sample ABCMR Proceeding.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the Board reconsider the applicant's request to be promoted to LTC, with a promotion date of 11 February 2004.


2.  Counsel states, in effect, that the applicant was activated as a U.S. Army Reserve Officer (USAR), effective 10 May 2001, with a report date of 15 July 2001.  The orders stated that the applicant was activated to fulfill an active duty commitment as an obligated volunteer officer for 3 years for the purpose of fulfilling an active Army requirement.  The authority that ordered the applicant to active duty was Title 10, U.S. Code, section 12301(d).  The applicant remained on the RASL and was subsequently promoted to LTC under the provision of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) based on USAHRC, St. Louis memorandum, dated 19 February 2004.

3.  Counsel continues that the applicant was notified that his name was deleted from the promotion list and the reason for the deletion was he was ordered to active duty on 15 July 2001 for 3 years.  Counsel states that there has been some confusion over Reserve Soldiers serving on active duty, as to whether or not they would be considered by active or reserve component promotion boards.  The laws and regulations need to be applied at the time of the applicant's promotion.  The applicant was activated under the National Defense Authorization Act (NDAA) of 2001 and he should have remained on the RASL.

4.  Counsel further states that reservists accessed under the authority code of 12301(d) and those with orders that specify a period of 3 years or less are to be considered for promotion by the Army Reserve Components Selection Board.  The NDAA 2002 attempted to clarify the exemption created by NDAA 2001 for reserve officers remaining on the RASL.  The new provision required that orders for activated reservists specify continued placement on the RASL in order for them to remain shielded from competing with active duty officers.  The clarification became effective on 28 December 2001.  The applicant was ordered to active duty on 15 July 2001 under the legal guidance of NDAA 2001.

5.  Counsel concludes by describing the details of another case similar to the applicant's case, in which the ABCMR used the provisions of NDAA 2001 and 2002, and the Office of the Deputy Chief Staff, G-1's guidance to analyze which reserve officers were to remain on the RASL and which were to be ordered to the Active Duty List (ADL).  Counsel states that an injustice occurred when the applicant's promotion to LTC was rescinded and his name was removed from the RASL promotion list.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20070014110 on 18 December 2007.
2.  In the original decision the ABCMR found the applicant's records revealed that he was considered by the LTC Army Competitive Category Selection Board that convened on 25 February 2003.  He was subsequently considered each year thereafter but not selected.

3.  The applicant was further 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.  However, he was deleted from the 2003 LTC RCSB as a result of him being ordered to active duty on 15 July 2001 for 3 years.  The original ABCMR case determined that 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.

4.  The applicant served in Korea from 1 June 2002 to 23 June 2004.  He has remained on active duty from 15 July 2001.  He retired from active duty on  
31 August 2008.

5.  In the processing of the original case, an advisory opinion was provided that states the applicant was erroneously considered and selected by the 2003 LTC DA Reserve Competitive Category Selection Board.  The advisory opinion further states the applicant was not eligible for promotion to LTC by the DA Reserve Competitive Category Selection Board because he was ordered to active duty on 15 July 2001 and was not a reserve asset at the convening date of the board.  Therefore, his promotion orders were voided and he was deleted from the  
2003 LTC RASL.  The NDAA 2001 applies to officers that are ordered to active duty in an "extended active duty" status.  It does not apply to officers who were ordered to active duty to "fulfill an active Army requirement."  The applicant was in a 3-year obligated volunteer status to "fulfill an active Army requirement."  The applicant submitted a rebuttal through counsel.

6.  Counsel’s argument that reservists accessed under the authority of 12301(d) with orders that specify a period of 3 years or less are to be considered for promotion by the Army Reserve Components Selection Board, with the examples he cites, is new evidence and argument and requires that the applicant's case be reconsidered by the ABCMR.

7.  The argument that counsel submitted on behalf of the applicant (responds to the advisory opinion) repeats the contention that the applicant should be reinstated to LTC from the RASL, effective 11 February 2004.  Counsel's contentions were that since the applicant was activated under the NDAA of  2001, he should have remained on the RASL.

8.  Title 10, U.S. Code, section 641, dated March 2001, Applicability of Chapter, states, in pertinent part, that officers in the following categories are not subject to this chapter (other than section 640 and, in the case of warrant officers, section 628):

     "(1) Reserve officers - 

             (C)  on active duty under section 12301(d) of this title in connection with organizing, administering, recruiting, instructing, or training the reserve components;

         (D)  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."

9.  The NDAA, Fiscal Year 2001, section 521, Exemption from active-duty list for reserve officers on active duty for a period of three years or less, states, in pertinent part, that section 641(1) of Title 10, U.S. Code, is amended—

     "(1)  by redesignating subparagraphs (D) through (G) as subparagraphs (E) through (H), respectively; and

      (2)  by inserting after subparagraph (C) the following new subparagraph:

          (D) "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;…."

10.  In the processing of this case, the Board’s staff contacted the applicant who stated that his original active duty orders had never been amended and he was never issued any additional active duty orders.  The applicant also provided the Board’s staff a memorandum dated 5 August 2004, Subject:  Selective Continuation on Active Duty, which informs the applicant that he had been considered for a second time for promotion to lieutenant colonel (ADL) and was not selected, but had been selected for selective continuation (SELCON) on active duty as a major.  The applicant declined SELCON because he would have 18 years of active service by 1 February 2005.  The applicant contends in his 
response that he was on the RASL, and charges that USAHRC acted with malice and contempt by failing to comply with the law and honoring his USAR promotion 
to lieutenant colonel.  The applicant also stated that "I further acknowledge that IAW Paragraph 2-6b, AR 350-100, I incurred a one-year obligation after returning to the United States from overseas…."

11.  An advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1 dated 28 October 2008.  The Deputy Chief of Staff, G-1 states that after review of the items presented and the facts surrounding the applicant's request, it is their opinion that the action voiding the applicant's February 2004 promotion order was erroneous.  However, since the applicant has voluntarily retired effective 31 August 2008, the results of the Board are nullified.  A Reserve Component officer who is not listed on the ADL must be listed on the RASL under the provision of Title 10, U.S. Code, section 14002.  Whether or not the Reserve officer is placed on the ADL under the provision of Title 10, U.S. Code, section 641 and 620 depends on the date of the officer's extended active duty (EAD).  Before 30 October 2000, Title 10 U.S. Code, section 641 did not explicitly exclude Reserve Component officers ordered to EAD under the provision of
Title 10, U.S. Code, section 12301(d).  Accordingly, such officers were always included on the ADL.

12.  The Deputy Chief of Staff, G-1 continues that from 30 October 2000 until 27 December 2001, Reserve Component officers on EAD orders under the provision of Title 10, U.S. Code, section 12301(d) were excluded from the ADL under the provision of Title 10, U.S. Code, section 641(1)(D) if the officers' EAD orders specified an active duty period of three years or less.  Accordingly, those officers remained on the RASL.  Since 28 December 2001, Reserve Component officers on EAD orders under the provision of Title 10, U.S. Code, section 12301(d) are excluded from the ADL under the provision of Title 10, U.S. Code, section 641(1)(D) if the officers' EAD orders specify an active duty period of three years or less and continued placement on the RASL.

13.  The Deputy Chief of Staff, G-1 continues that the applicant's EAD orders were issued on 10 May 2001, with a reporting date of 15 July 2001, which was issued under the authority of Title 10, U.S. Code, section 12301(d).  The orders placed the applicant on active duty for a period of three years, but did not specifically state whether the applicant would be retained on the RASL or placed on the ADL.  Consequently, the applicant's EAD orders were subject to the rules that applied between the period 30 October 2000 and 27 December 2001 as discussed above.  Therefore, the applicant should have remained on the RASL unless subsequent orders were issued that effected his transfer to the ADL by operation of law.  The applicant's orders dated 10 May 2001 that ordered him to 
active duty did not place him on the ADL by operation of law, and he should have remained on the RASL.  The applicant's promotion order was therefore improperly voided.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends through counsel that his RASL promotion to LTC be reinstated to the effective date of 11 February 2004.

2.  The question is whether the applicant should have been retained on the RASL when he was ordered to active duty on 15 July 2001.  Notwithstanding the fact that the applicant remained on active duty until he retired on 31 August 2008, his original active duty orders (i.e. the orders in effect on the date he was promoted) ordered him to active duty for 3 years.

3.  In this regard, Title 10, U.S. Code, section 641, in effect at the time the applicant was ordered to active duty, specified that officers on the RASL 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, are not accessed on the ADL.  

4.  As such, the applicant's promotion orders, dated 19 February 2004, were voided in error.  Therefore, the applicant is entitled to reinstatement of his promotion to LTC, effective 11 February 2004, correction of his records to show he retired as a LTC on 31 August 2008, and to receive all back pay and allowances and retired pay due to him as a result of this correction.

BOARD VOTE:

___X____  ___X____  ___X___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20070014110, dated 18 December 2007.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing his name was not removed from the RASL LTC promotion list and that he was promoted to LTC with an effective date and date of rank of 11 February 2004;

	b.  showing he was retired from active duty on 31 August 2008 in the rank and grade of LTC/O5; and

	c.  giving to him all back pay and allowances and retired pay due as a result of the above corrections.



      __________X_____________
      CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080000898



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ABCMR Record of Proceedings (cont)                                         AR20080000898



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