IN THE CASE OF:	  

		BOARD DATE:	        19 MAY 2009

		DOCKET NUMBER:  AR20080012423 


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 reconsideration of his earlier request for promotion to lieutenant colonel (LTC).  

2.  The applicant states he submitted his promotion packet in September 1993.  He was told that a reduction in force (RIF) was planned and that he was eligible for early retirement.  In October [1993], he submitted a packet for early retirement which was accepted effective 31 December 1993.  He returned to active duty on 17 April 2005 as a retiree recall.  On 29 September 2005, he received a copy of his promotion letter with an effective date of 8 May 1994.  He claims that if he had received this information in 1993, he would have withdrawn his request for early retirement.  

3.  The applicant provides a copy of a memorandum, subject: Notification of Promotion Status, dated 29 November 1993; his retirement orders, dated 7 October 1993; his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 December 1993; and his Officer Record Brief, in support of his request.

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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060009548, dated 17 April 2007.

2.  The documents that the applicant provided in addition to a second advisory opinion that was obtained from the U.S. Army Human Resources Command, St. Louis (HRC-STL), on 14 January 2009, is new evidence that requires reconsideration.  

3.  The applicant was appointed as a Reserve commissioned officer on 16 December 1973 in the rank of second lieutenant.  He was promoted to the rank of first lieutenant on 11 May 1976.  

4.  The applicant served on active duty in the Active Guard Reserve from December 1973 to December 1976.

5.  He was promoted to captain on 10 May 1980 and to major on 9 May 1987.

6.  The applicant was notified that he was being considered for promotion to LTC by the 1993 LTC Promotion Board that was scheduled to convene on
28 September 1993.  

7.  On 10 September 1993, the applicant voluntarily submitted a DA Form 4187 (Personnel Action) requesting that he be granted an early retirement effective 
1 January 1994.  

8.  On 12 October 1993, his request for a voluntary early retirement was approved.  

9.  Department of the Army, U.S Army Reserve Personnel Center, St. Louis, MO, Orders P-10-010193, dated 7 October 1993, directed the applicant's release from active duty with an effective date of 31 December 1993 and placement on the retired list effective 1 January 1994.   

10.  By a memorandum, dated 29 November 1993, the applicant was notified that he had been selected for promotion to LTC under the criteria of the promotion board that convened on 28 September 1993.  His notification letter explained that he had to remain in an active status in order to be promoted and that his selection required confirmation by the United States Senate before issuance of a promotion memorandum.  This notification was mailed to the applicant’s address in Crawfordsville, IN.  This same address was also entered on his previous application to the Board.  At the bottom of the notification letter, it was indicated that a copy was furnished on 29 September 2005.  

11.  In the processing of this case a staff advisory opinion was obtained from the Chief, Special Actions Branch, Office of Promotions, Reserve Components, HRC-STL which stated that the applicant was in the zone for promotion consideration by the 1993 Department of the Army (DA) Reserve Components LTC Selection Board and was considered for promotion by that board.  The board results were approved by the Secretary of the Army on 3 January 1994, released on 27 January 1994, and Senate confirmed on 9 February 1994.  The opinion pointed out that the applicant's command was notified that he was being considered for promotion and the command in turn notified him of his consideration by the board.  Although the applicant was aware of his consideration, he chose to request transfer to the Retired Reserve effective 31 December 1993.  

12.  The opinion also stated that upon release of the board results it was revealed that the applicant had been selected for promotion with a promotion eligibility date (PED) of 8 August 1994.  The Notification of Promotion Status memorandum, dated 29 November 1993, was mailed to the applicant's address in Crawfordsville, IN, the address that was in the system at this command at that time.  The opinion stated that board results cannot be released to a Soldier prior to the official release date of the board.  Since the applicant retired prior to 3 January 1994, prior to Senate confirmation on 9 February 1994 and prior to his PED of 8 August 1994, he was not eligible for the promotion.  Therefore, his name was deleted from the board's official results on 31 March 1994.  Based on this information and the fact that a member in a retired status is not eligible for promotion, it was recommended that the applicant's request be disapproved.  

13.  A copy of the advisory opinion was forwarded to the applicant to allow him to provide a possible rebuttal.  He stated that the advisory opinion was sent to the Army and Air Force Exchange Service in Kuwait, but he was stationed at Camp Liberty, Iraq.  It finally ended up at his home in Indiana.  He received the notification that he had been selected for promotion to the rank of LTC on 29 September 2005, while he was stationed at HRC-STL as a retiree recall.  The notification was issued on 29 November 1993.  In the opinion, Mr. M_____ stated he was selected for promotion with a PED of August 1994.  According to his selection letter, the date for promotion was 8 May 1994.  Mr. M____ stated that “the Notification of Promotion Status Memorandum dated 29 Nov 93, was mailed to ___ N Twin Oaks Drive, Crawfordsville, IN 47933, the address that was in the system at the Command."  The applicant claimed that he did not move into that residence until 6 June 1999.  The address at that time was  __ Twin Oaks, the address was changed in 2003.  Mr. M____ further stated that his name was deleted from the board's official results on 31 March 1994.  He argued that this statement cannot be true, if he was issued the Notification of Promotion Status letter on 29 September 2005.  The only statement that he claimed that is true is that "a member in a retired status is not eligible for promotion."  He stated that the reason that retiree recalls are not promoted is because they do not go before promotion boards.  He was considered and selected for promotion while he was on active duty.  He disagreed with the opinion regarding him being notified of promotion consideration and he chose to request transfer to the Retired Reserve.  He would have withdrawn his retirement and remained on active duty if he had received notification of his selection.  

14.  On 13 April 2008, the applicant submitted a second application to the ABCMR for reconsideration of his request for promotion.  However, his case was administratively closed by letter on 13 May 2008.  

15.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) in effect at the time, provided in pertinent part, that officers would be removed from the promotion list if they were removed from an active status before promotion was finalized.

16.  Army Regulation 135-155, also provides in pertinent part, that an officer who has been recommended for promotion to the next higher grade must meet the following requirements before being promoted:  The officer must be in an active Reserve status, complete the service requirements, be medically qualified, have a favorable security screening, and must meet the standards of the Army Weight Control Program (Army Regulation 600-9).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he did not receive a copy of his promotion letter until 29 September 2005 with an effective date of promotion of 8 May 1994.  He claims that he would have withdrawn his request for early retirement if he had received this information in 1993.  However, it appears the 29 September 2005 copy of the applicant's promotion notification memorandum was merely a reissuance of his November 1993 promotion memorandum.  

2.  The applicant was properly considered and recommended for promotion to LTC by the board that convened on 28 September 1993.  However, the applicant submitted his retirement on 10 September 1993 prior to the convening date of the promotion board and the announcement of the promotion board results.  His request was approved and retirement orders were published on 7 October 1993.  His name was removed from the recommended list because he was not in an active status at the time the promotion list was finalized.

3.  It appears that there may have been an error in the advisory opinion regarding the Notification of Promotion Status memorandum.  The advisory opinion indicated the applicant's promotion notification was dated 29 November 1993, but the board results were not approved until 3 January 1994.  Normally, promotion notification would not be made until AFTER the board results were approved.  However, in any case, the applicant should have been aware that he was being considered for promotion to LTC in 1993.  As stated in the previous case, the applicant was a seasoned officer and was aware of the criteria for promotion to LTC.  If the applicant was concerned about the possibility of being selected for promotion to LTC he could have opted to submit his retirement after the results of the board had been determined.  In the alternative, he could have kept in close, even daily  touch with his personnel manager to ascertain his status in regard to the promotion board results.  In addition, there is no evidence or indication that the applicant was in a LTC position at the time which was a prerequisite for promotion.  

4.  There appears to be no error or injustice that exists in this case and 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 AR20060009548, dated 17 April 2007.




      _______ _   XXX_______   ___
               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)                                         AR20080012423



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ABCMR Record of Proceedings (cont)                                         AR20080012423



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