IN THE CASE OF:	

		BOARD DATE:	 7 April 2009 

		DOCKET NUMBER:  AR20080008897 


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, reconsideration of the Board's denial of his request for retirement points and pay for parts of RYE (retirement year ending) 2005 and 2006.  He also requests clarification of the phrase "adequate explanation" as it is used by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060009744.

2.  The applicant states, in effect, that he was denied the opportunity to drill for points and pay for UTA (unit training assemblies) and AT (annual training) due to a discharge, which was voided when he was promoted by a Special Selection Board.  He states that precedent was established by ABCMR Docket Number AR20060001733.

3.  The applicant provides a copy of ABMCR Docket Number AR20060009744, the Board's original consideration of this case; a Human Resource Command memorandum; leave and earnings statements; memoranda containing training dates; email correspondence; ABCMR Docket Number AR20060001733, AR20040008786, and AR2003094328; ARPC Forms 249-2-E (Chronological Statement of Retirement Points); and a compact disc containing his personnel information in support of this application. 

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 AR20060009744, on 24 May 2007.
2.  The documents provided by the applicant are new evidence, which requires that the Board reconsider his request.

3.  On 24 May 2007, in the Board's first consideration of this case (ABCMR Docket Number AR20060009744) regarding award of retirement points, pay, and allowances, the record of proceedings show the applicant stated that he had been erroneously placed in the Retired Reserve in 1993 instead of the Individual Ready Reserve (IRR).  Based on the results of an SSB convened in 2004, as a result of a previous application to the ABCMR, he was promoted to major with an effective date and a date of rank of 3 August 1993.  The applicant was permitted to return to an active status to attend training until he was again discharged in January of 2005 after being twice non-selected for promotion.  In March of 2006 this discharge was voided.

4.  In the Board's first consideration of this case the applicant requested he be credited at least 50 retirement points for RYE 1995 through 2003 and 2005.  The Board approved this request by granting him 69 points per year for RYE 
29 October 1995 through 29 October 2002 and paying him all due pay and allowances for those inactive duty and active duty periods.  The applicant's retirement points summary showed he already had 79 points for RYE 29 October 2005 and no additional points or pay was granted by the Board for that year.

5.  In the Board's first consideration of this case, it also recommended that an adequate explanation be placed in his official personnel files to show that the gap in his officer evaluation reports from the date of his removal from an active status around July 1992 until his reinstatement in February 2003, was not caused by any fault on his part and to ensure that he is not prejudiced thereby in the 
consideration of any future personnel actions; and that following implementation of the foregoing, his records be submitted to a duly constituted SSB for consideration for promotion to lieutenant colonel.  The Board denied the applicant's request for compensation or relief for colonel promotion boards beyond that granted above (ABCMR Docket Number AR20060009744).

6.  The applicant's records show he has 71 points for RYE 29 October 2006.

7.  The applicant provided a copy of ABCMR Docket Number AR20060001733, which he referenced as a precedent for awarding of points and pay for unit training assemblies and annual training in support of this application. 

8.  In connection with the processing of this reconsideration, an advisory opinion dated 8 January 2009 was obtained from the Human Resources Command (HRC).  The HRC stated that the Board did not address the applicant's initial request for the award of additional retirement point credit and pay for the period 
3 January 2005 through 20 March 2006, in which the officer was discharged and reinstated by his command.  The HRC concluded that it would be reasonable to believe the applicant would have attended four paid unit training assemblies a month during the period of his discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is asking for additional retirement points, pay, and allowances based primarily on his contention that he was not permitted to attend training during the period 3 January 2005 through 20 March 2006, in which he was discharged.  He believes that a similar case has established precedent for granting the retirement points and pay that he requests.  While not being permitted to attend training during the full RYEs for which he requests retirement points and pay, the applicant attained sufficient retirement credit to qualify these years for retired pay during that period.  The Board does not establish precedent.  As such, while the case cited by the applicant may be similar in nature to this case, it has no bearing on whether his case should be approved.  Every case considered by the Board is judged on its own merits.

2.  The enclosed advisory opinion indicates the requested retirement points and pay for 2005 and 2006 were not addressed in the Board's first consideration and stated the applicant would likely have completed four paid unit training assemblies a month during the period of his discharge in 2005 and 2006.

3.  In the first consideration of this request, it was the intent of the Board to give the applicant the pay and retirement points he would have earned had he not been erroneously transferred to the Retired Reserve by averaging his annual retirement points prior to his erroneous discharge.  This average was 69 points per year.  The applicant's attached retirement points summary shows those recommended changes.  It also shows 79 points for the RYE ending 20 October 2005 and 71 points for the RYE ending 29 October 2006, which exceed the      69 points granted by the Board for the RYE 1995 through 2003.  Therefore, the Board's intent was met and there is no basis found for awarding additional retirement points, pay, and allowances for those two years.

4.  The Board granted what it believed to be appropriate relief.  While it is unfortunate that the applicant believes this relief was inadequate, he has not submitted sufficient evidence or argument which would support this contention.  While it is the Board's intent to appropriately correct any errors and injustices, it is not the Board's intent to enrich the applicant.

5.  As for the applicant's request for clarification of the phrase "adequate explanation" as it is used in his previous case, the applicant's records custodian would have the responsibility to incorporate the "adequate explanation" into his records.  In this case this was accomplished by the publication of two memoranda of record, which are routinely used in such cases, which simply state "An evaluation report has not been rendered through no fault of the rated officer.  The period is declared nonrated."

6.  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 to amend the decision of the ABCMR set forth in Docket Number AR20060009744, dated 24 May 2007.



      _________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)                                         AR20080008897



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ABCMR Record of Proceedings (cont)                                         AR20080008897



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