IN THE CASE OF:	  

		BOARD DATE:	  9 October 2008

		DOCKET NUMBER:  AR20080001961


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, in effect, promotion to major effective 22 May 1997. 

2.  The applicant states, in effect, that he was selected for promotion to major with a promotion eligibility date (PED) of 22 May 1997 and mistakenly moved to the Retired List on 1 August 1997.  He also states he never retired and upon leaving active duty in 1994, he was obligated to serve until 1 August 1997.  As an Individual Ready Reserve (IRR) officer, he should have been promoted to major prior to his release from the IRR.  Based on his seniority with his peers, he should have actually been promoted sometime between 22 May 1997 and 1 August 1997.  He further states, in effect, that in August 2005, Human Resource Command (HRC), St. Louis, Missouri, officials advised him that if he returned to the Reserve he would immediately be promoted to major.  He discovered the fact upon his return to the Reserve in 2007 after a 13-year 
break-in-service.

3.  In support of his application, the applicant provides copies of his 1994 separation orders and DD Form 214, Certificate of Release or Discharge from Active Duty.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of 
Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records show he was appointed in the United States Army Reserve (USAR), as a second lieutenant, effective 11 May 1985.  He was ordered to active duty for a period of 3 years and entered active duty effective 18 May 1985.  He was promoted to captain effective 1 September 1989.

3.  The applicant was released from active duty effective 1 August 1994 and was transferred to the USAR Control Group (IRR).  At the time of his release from active duty, he was approved for a Special Separation Bonus Payment contingent upon his entering into a written agreement to serve in the IRR for a period of not less than 3 years. 

4.  Based on the required completion, in effect at the time, of both 12 years time in service and 7 years time in grade, his PED in the USAR for major was 10 May 1997.

5.  The applicant was considered and not selected for promotion to major by the 1996 Reserve Components Selection Board (RCSB) that convened on 12 March 1996.  Based on his non-selection, his PED was adjusted to 10 May 1998.

6.  The applicant was considered and selected for promotion to major by the 1997 RCSB that convened on 11 March 1997.

7.  The Soldiers Management System database, shows the applicant was transferred to the Retired Reserve with an effective date of 26 April 1999, based on his having attained age 37 and having completed the minimum of 8 years of satisfactory Federal service.  He was placed in the Retired Reserve with an effective date of 27 April 1999.

8.  The applicant was released from the Retired Reserve and was assigned to the IRR, in the rank of captain, effective 23 July 2007.  He was assigned to a Reserve unit effective 29 August 2007.


9.  In an advisory opinion, dated 21 April 2008, provided by the Chief, Special Actions Branch, Department of the Army Promotions, HRC, St. Louis, stated that the applicant was considered but not selected by the 1996 Major RCSB.  He was considered with a PED of 10 May 1997, based on having completed 12 years total commissioned service - a promotion requirement at the time.  Based on non-selection, the applicant's PED was adjusted to 10 May 1998.  He was selected for promotion by the 1997 RCSB, with a PED of 10 May 1998.  On his PED, he did not meet all promotion requirements in accordance with Army Regulation 135-155, paragraphs 4-11 and 4-12.  The applicant did not have a medical examination that was within 5 years of his PED.  He was subsequently assigned to the Retired Reserve on 26 April 1999, upon reaching age 37, and having completed a minimum of 8 years of qualifying Federal service.  Since he retired without the promotion having been effected, he is not eligible for the promotion.  If the applicant provides verification that all promotion requirements were met on his PED and the retirement order is revoked his case should be returned to the Special Actions Branch, DA Promotions for a re-evaluation of his promotion.  In view of the facts in this case, the Chief Special Actions Branch, recommended the applicant’s request be denied.

10.  In an advisory opinion, dated 9 May 2008, a staff member of the Transition and Separations Branch, St. Louis, stated that the applicant voluntarily transferred to the Retired Reserve after incurring an obligation to serve in the USAR and his acceptance of a Special Separation Bonus.  She stated, in effect, that the applicant's transfer to the Retired Reserve was not a result of his completion of that promotion, nor was it an automatic transaction.  The applicant had to request that transfer action for the transfer to occur.  Since it was a voluntary transfer, she added there is no basis to revoke those orders.  The applicant’s orders transferring him to the Retired Reserve are valid and should not be revoked.

11.  The advisory opinion was forwarded to the applicant for acknowledgement and/or rebuttal on 22 May 2008.  In his rebuttal, and other input, submitted in an electronic mail message to an ABCMR staff member, dated 28 May 2008, the applicant stated, in effect, that he did not make a request to transfer to the Retired Reserve.  Perhaps, it was automatic if he did not respond, due to not receiving mail or information during his IRR time while working in Vietnam from 1995 to 1999.  He concluded his input by stating he needs to know his current promotion status to initiate the processing of his packet for Recall to Active Duty.

12.  Army Regulation 135-155, in effect at the time, prescribed the policies and procedures for promotion of Reserve officers.  This regulation specified that completion of 12 years time in service and 7 years time in grade was required before promotion to major.  Officers assigned to a unit must be serving in a position requiring the higher grade or assigned to the IRR or as an Individual Mobilization Augmentee (IMA).  In addition, IRR and IMA officers selected by a mandatory promotion board must have completed the maximum time in grade.

13.  Army Regulation 135-155, in effect at the time, also specified that an officer recommended for promotion would not be promoted prior to meeting the promotion eligibility criteria, i.e., having an updated physical (medical) examination within 5 years of their PED and Army Physical Fitness Test (APFT). Paragraph 4-12 of this regulation also specified that promotion authorities would ensure that a favorable security screening is completed before announcing a promotion.  Each Reserve officer was required to undergo a medical examination at least once every 5 years.  An officer must also possess a current APFT and possess a current date for maximum allowable weight for height and weight standards.  Promotion authorities would ensure that the officer possessed a current physical examination, a favorable security screening, and possessed a current APFT and maximum allowable weight for height and weight standards before announcing a promotion. 

14.  The regulation also specified that an officer is promoted after selection, if all qualifications for promotion are met.  When an officer does not meet the qualifications for promotion, the promotion effective date and date of rank will not be earlier than the later date all qualifications are met.  The officer's PED will become the officer's date of rank upon promotion.  The date of rank would be used to establish the PED to the next grade.  The effective date of promotion is the date the officer is eligible for pay and allowances in the higher grade.  

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to promotion to major effective 22 May 1997.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The applicant contends that he was due to be promoted to major on 22 May 1997.  However, the applicant was considered and not selected for promotion to major by the 1996 RCSB, with a PED of 10 May 1997.  Based on his non-selection, his PED was adjusted by one year to 10 May 1998.  He was selected for promotion by the 1997 RCSB, with a PED of 10 May 1998, provided he met all other qualifications for promotion at the time.

3.  It appears that promotion authorities determined that his physical examination was not within the 5-year window of his PED as prescribed in Army Regulation 135-155.  The Special Actions Branch, HRC, St. Louis, verified that the applicant could not be promoted to major effective 10 May 1998, because he did not have a current physical examination within 5 years of his PED.  The applicant was subsequently assigned to the Retired Reserve effective 26 April 1999, based on reaching age 37 and completing a minimum of 8 years of qualifying Federal service.

4.  Based on the fact that the applicant's promotion to major was not effected before his transfer to the Retired Reserve, he is not entitled to an automatic promotion to major upon his return to the Reserve.  The applicant also has not satisfactorily shown that he met all the requirements for promotion to major on 22 May 1997 or 10 May 1998.  There is no evidence that the applicant was unreasonably delayed in completing a physical examination to qualify for a promotion to major.  In order for the applicant to possibly be entitled to promotion on his PED, at this time and in the future, the applicant must provide verification to the Special Actions Branch, HRC, St. Louis, Missouri, that he met all promotion requirements on that date and his retirement orders would need to be revoked.

5.  The applicant also contends that he was mistakenly retired and was advised that he would be promoted upon his return to the Reserve.  The Transition and Separations Branch, HRC, St. Louis, verified that the applicant voluntarily requested transfer to the Retired Reserve after incurring an obligation to serve in the USAR and as a result of his acceptance of a Special Separation Bonus.  The Transition and Separations Branch stated in an advisory opinion that the applicant had to make a request for that transfer action to have occurred and since it was a voluntary transfer, there is no basis to revoke those transfer orders. 

6.  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.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ____x___  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.




      _______ _ 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)                                         AR20080011478



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ABCMR Record of Proceedings (cont)                                         AR20080001961


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