IN THE CASE OF:	  

	BOARD DATE:	  18 September 2008

	DOCKET NUMBER:  AR20080003796 


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, correction of his military records to show that he was retired in the pay grade of O-5 due to physical disability.  He further requests that his retirement orders be amended to authorize travel for selection of a home in connection with his retirement, effective 1 June 2007.       

2.  The applicant states, in effect, that he was on active duty as an Active Guard/Reserve (AGR) officer at the time of his medical retirement and his name was on the recommendation list for promotion to lieutenant colonel, pay grade 
O-5.  He was retired as a major, pay grade O4. 

3.  The applicant provides copies of his Certificate of Release or Discharge from Active Duty (DD Form 214); temporary disability retirement orders with amendment; Fiscal Year (FY) 2001 Promotion Board Results for Lieutenant Colonel Reserve Components, Army Medical Department; two letters of congratulations for being selected for promotion; Ashland Theological Seminary Master of Divinity Diploma; and his permanent disability retirement orders.

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.  On 18 August 1991, the applicant entered active duty as a captain, United States Army Reserve.  He was promoted to major, pay grade O-4, with a date of rank of 2 December 1995.

3.  The applicant was selected for promotion to lieutenant colonel by the FY 2001 Lieutenant Colonel Reserve Components Army Medical Department Promotion Board, as a medical service officer.

4.  Orders C-06-290896, United States Army Reserve Personnel Command, St. Louis, Missouri, dated 3 June 2002; and as amended by Orders 162-0174, United States Army Armor Center and Fort Knox, Kentucky, dated 11 June 2002, released the applicant from active duty effective 25 June 2002 and placed him on the temporary disability retired list, effective 26 June 2002, in the rank of major, pay grade O-4.  He was retired under the provisions of Title 10, United States Code, section 1202, for a temporary disability rated at least 30 percent disabling.

5.  On 2 June 2007, the applicant was awarded a Master of Divinity degree from the Ashland Theological Seminary.

6.  Orders D023-08, United States Army Physical Disability Agency, dated 
23 January 2008, removed the applicant from the temporary disability retired list and permanently retired him due to physical disability, in the rank of major, pay grade O-4.  He was retired under the provisions of Title 10, United States Code, section 1201, for a permanent disability rated at least 30 percent disabling.

7.  In the processing of this case, an advisory opinion was obtained from the Chief, Special Actions, Department of the Army Promotions, United States Army Human Resources Command, St. Louis, Missouri.  It states, in effect, that while the applicant had been selected for promotion to lieutenant colonel, he had not served in a lieutenant colonel position prior to his placement on the temporary retired list.  




8.   On 27 May 2008, a copy of the advisory opinion was sent to the applicant for his information and opportunity to rebut.  No response has been received.

9.  Army Regulation 135-55 (Officer Promotions) provides, in pertinent part, that commissioned officers and warrant officers serving on active duty in an AGR status may be promoted to or extended Federal recognition in a higher grade provided the duty assignment/attachment of the officer requires a higher grade than that currently held by the officer.  AGR officers who have been selected for promotion and are not assigned/attached to a position calling for a higher grade will receive a delay of promotion without requesting such action. AGR officers will remain on the promotion list and serve on active duty in the AGR program until they are removed from the promotion list; promoted to the higher grade following assignment/ attachment to an AGR position calling for the higher grade; or promoted to the higher grade, if eligible, following release from active duty.

10.  The Joint Federal Travel Regulation (JFTR), Volume I, provides, in pertinent part, that travel to a selected home must be completed within 1 year after active duty termination.  A member, who on the active service termination date is undergoing education or training to qualify for acceptable civilian employment is entitled to travel and transportation allowances to a home of selection from the last permanent duty station.  However, the travel must be completed within 1 year after the education or training is completed, or 2 years from the active service termination date, whichever is earlier; and the extended time must be authorized and approved by the Secretarial Process. A further extension of this time limit may be authorized and approved by the Secretarial Process.

11.  The JFTR further provides that travel and transportation allowance extensions for members separating from the service may be authorized and approved for a specific additional time period using the Secretarial Process.  It 
requires a written time limit extension that includes an explanation of the circumstances justifying the extension.  It may be authorized and approved only when circumstances prevent use within the prescribed time; and must be for the shortest time appropriate under the circumstances.  It may not be granted merely to accommodate personal preferences or convenience; and may not be authorized and approved if it extends travel and transportation allowances for more than 6 years from the date of separation, release from active duty, retirement, or from the date of receipt by a member's dependents of official notice that the member is dead, injured, missing, interned, or captured, unless a certified on-going medical condition prevented the relocation of the member or dependent(s) from the date of separation/retirement.


DISCUSSION AND CONCLUSIONS:

1.  The applicant was released from active duty on 25 June 2002.  He completed his educational training in June 2007, 5 years after his separation.  There is no available evidence showing that the applicant applied for an extension of time to complete his travel after completion of schooling.  Furthermore, he has not provided an explanation of the circumstances that would justify an extension.  Therefore, his request to change the effective date on his retirement orders should be denied.

2.  The evidence shows the applicant was released from active duty and placed on the retired list due to physical disability in the rank of major, pay grade O-4. There is no evidence showing that the applicant was placed into a lieutenant colonel or higher position prior to his placement on the temporary retired list.

3.  In view of the above, the applicant’s request should be denied.

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)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080003796



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