IN THE CASE OF:
BOARD DATE: 25 September 2008
DOCKET NUMBER: AR20080004198
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 restoration of his selection for promotion to lieutenant colonel, pay grade O-5, or that his records be reconsidered by a standby board. He further requests that his pay and retirement be corrected to reflect promotion to lieutenant colonel, pay grade O-5.
2. The applicant states that towards the end of his service he transferred from the Active Guard/Reserve to an Active Component status. At the time he was not eligible for consideration for promotion by the Active Component Board. He submitted his promotion packet to the Reserve Component Board and was selected for promotion to lieutenant colonel, pay grade O-5. He was subsequently removed from this list because he was in an Active Component position. He contends that he was caught between the two systems and was told that there was nothing that could be done. He further contends that since then this situation has been rectified and that other officers who experienced this injustice had their records corrected.
3. The applicant provides a copy of a memorandum from the Office of Promotions, Reserve Components, dated 24 July 2002.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 21 November 1972, the applicant enlisted in the United States Air Force. He attained pay grade of E-5 and was discharged on 20 November 1978.
3. On 13 January 1979, the applicant enlisted in the Army National Guard. He was awarded military occupational specialty (MOS) 19D (Cavalry Scout). He attained the rank of staff sergeant, pay grade E-6 and was discharged on
8 August 1980.
4. On 9 August 1980, the applicant was appointed as a second lieutenant, Signal Corps, in the Vermont Army National Guard.
5. On 6 April 1981, the applicant was appointed as a second lieutenant in the United States Air Force Reserve.
6. On 25 February 1983, the applicant was appointed as a second lieutenant in the New York Army National Guard.
7. On 8 August 1983, the applicant was promoted to first lieutenant, pay grade O-2.
8. On 1 June 1987, the applicant was transferred to the Active Guard/Reserve for duty as a personnel officer with the United States Army Reserve Personnel Center, St. Louis, Missouri.
9. On 7 August 1987, the applicant was promoted to captain, pay grade O-3.
10. On 6 August 1994, the applicant was promoted to major, pay grade O-4.
11. The applicant completed the Command and General Staff Officers Course in 1994.
12. Orders P-07-010109, United States Army Reserve Personnel Center, St. Louis, Missouri, dated 31 July 1997, released the applicant from assignment and duty, and on 31 January 1998, placed him on the retired list, in the rank of major.
13. Orders A-07-004023, United States Total Army Personnel Command, dated 16 July 1998, ordered the applicant to active duty in the rank of major for a period of 2 years.
14. On 30 June 2001, the applicant retired due to completion of sufficient service. He attained the rank of major, pay grade O-4, and had completed
23 years, 5 months, and 11 days of creditable active duty service.
15. On 24 July 2002, the Chief, Special Actions Branch, Office of Promotions, Reserve Components, United States Army Personnel Command, St. Louis, Missouri, wrote a letter to: Whom it May Concern, wherein he stated that the applicant had been considered and selected for promotion to lieutenant colonel; however, his name was removed from the board based on administrative jurisdiction. The author did not identify the date of the board concerned.
16. Army Regulation 601-10 (Management and Mobilization of Retired Soldiers of the Army) provides, in pertinent part, that retired military personnel recalled to active duty in a retired status are not eligible for promotion.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows that the applicant was placed on the retired list effective 31 January 1998, and was subsequently ordered back to active duty for a 2 year period.
2. Once the applicant was placed in a retired status, he was no longer eligible for promotion. Therefore, his request for promotion reconsideration 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.
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