IN THE CASE OF:	  

		BOARD DATE:	  15 June 2010

		DOCKET NUMBER:  AR20090016718 


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 previous request to have his selection for promotion to lieutenant colonel (LTC)/O-5 stand and that he be permitted to retire in the grade of O-5.

2.  The applicant states the Board did not review all the available and correct information in denying his original application.  He states the Board noted in its proceedings that he retired from the Army in January 1998, which did not happen.  The retirement orders for January were amended on 15 January 1998 extending his retirement effective date to 31 July 1998.  The retirement orders were vacated by his active duty orders which became effective 17 July 1998, prior to his previously-established retirement effective date.  He was never placed on the Retired List at any time prior to 2001.  He reiterates he was released prior to his retirement from his Active Guard Reserve (AGR) status and placed on his active duty tour; he was never placed on the U.S. Army Reserve (USAR) Retired List.

3.  The applicant states he was considered and selected for promotion to LTC by a special selection board, but the confusion resulted in his incorrect and improper administrative removal from that board.  He states at the time he was told, "too bad, many have found themselves in this position."  He has been assured that it has been only in the past few years that these errors have been addressed and corrected.  He requests that his situation now be righted.

4.  The applicant provides a copy of U.S. Army Reserve Personnel Command (ARPERSCOM) Orders C-07-700801A02, dated 15 January 1998, in support of his request for reconsideration.

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 AR20080004198 on 25 September 2008.

2.  Item 35 (Record of Assignments) of the applicant's DA Form 2-1 (Personnel Qualification Record - Part II) shows he was assigned to the USAR Control Group (AGR) effective 16 April 1984 in the rank of first lieutenant/O-2.

3.  On 6 August 1994, the applicant was promoted to major (MAJ)/O-4 in the USAR.  His DA Form 2-1 shows he served in a variety of AGR positions at the U.S. Army Reserve Personnel Center (ARPERCEN) through 29 February 1996 at a minimum.

4.  ARPERCEN Orders P-07-010109, dated 31 July 1997, released the applicant from active service effective 31 January 1998 and placed him on the Retired List effective 1 February 1998 in the rank of major (MAJ)/O-4.  The orders specify that effective with his placement on the Retired List, he would be transferred to the Retired Reserve and assigned to the USAR Control Group (Retired).  The orders show his active Federal service as 20 years and 11 days as of the effective date of the orders.

5.  On 15 January 1998, ARPERSCOM Orders C-07-700801A02 amended the reporting date of his reattachment for separation processing from 24 November 1997 to 31 July 1998.

6.  The applicant attained 20 years of active Federal service on 20 January 1998.  There is no evidence he requested extension beyond 20 years of active Federal service.

7.  On 17 July 1998, the applicant was ordered to active duty as an obligated volunteer officer for 2 years in the rank of MAJ to fulfill an active Army requirement by U.S. Total Army Personnel Command Orders A-07-004023, dated 16 July 1998.

8.  On 30 June 2001, the applicant was separated from active duty by reason of sufficient service for retirement in the rank of MAJ.  Item 12c (Net Active Service This Period) shows he served 2 years, 11 months, and 14 days during his current period of active duty.  Item 12d (Total Prior Active Service) shows he had 20 years, 5 months, and 27 days of prior active Federal service at the time of his 1998 release from active duty.  At the time of his retirement he had 23 years, 5 months, and 11 days of total active service.

9.  As noted in the Board's original proceedings, the Chief, Special Actions Branch, Office of Promotions, Reserve Components, U.S. Total Army Personnel Command, dated 24 July 2002, stated the applicant "was considered and selected for promotion to LTC; however, his name was removed from the board based on administrative jurisdiction."  The statement does not indicate the date of the board or specify whether it was a mandatory selection or special selection board.  The applicant's OMPF contains no other information concerning consideration or selection for promotion to the rank of LTC.

10.  On 23 April 2010, U.S. Army Human Resources Command (formerly U.S. Total Army Personnel Command) Promotions Branch indicated the applicant was considered by the 2000 promotion selection board, but was deleted as not being eligible for consideration.  The staff member stated that there were changes to the law about that time and was unsure whether he should have been considered by an Active Duty List (ADL) board.

11.  Army Regulation 135-18 (The Active Guard Reserve Program) establishes policies and prescribes procedures for obtaining, administering, and separating Army National Guard of the United States and USAR Soldiers serving as members of the AGR Program.

	a.  Paragraph 4-7a states AGR officers will be released from active duty (serving under Title 10, U.S. Code) when they have attained 20 years of active service unless approved for extension under the policy prescribed in paragraph b below.

	b.  Paragraph 4-7b states AGR commissioned officers may be retained on active duty beyond 20 years of active service through a board process, convened at least annually.

12.  Army Regulation 135-155 (Army National Guard and Army Reserve Promotion of Commissioned Officers and Warrant Officers other than General Officers), in effect at the time, stated:

	a.  To be eligible for consideration for promotion to the next higher grade, an Army National Guard or USAR officer must be in an active status and meet service requirements.  The service requirement for promotion to LTC requires 7 years in the grade of major.  Mandatory selection boards will be convened each year to consider Army National Guard and USAR officers in an active status for promotion.  First consideration for promotion will occur well in advance of the date the officer will complete the service requirement.  This will allow selected officers to be promoted on their eligibility date.

	b.  Headquarters, DA, will remove the name of an officer from a selection board list who was ineligible for selection because he or she was put on the active duty list prior to finalization of the USAR promotion.

13.  Prior to 30 October 2000, Title 10, U.S. Code, section 641(1), had the effect of placing on the ADL all Reserve Component (RC) officers other than warrant officers ordered to any period of active duty under the provisions of Title 10, U.S. Code, section 12301(d) other than active duty for special work (ADSW), temporary tours of active duty (TTAD), active duty for training (ADT), or AGR duty.

14.  On 30 October 2000, section 521 of the National Defense Authorization Act (NDAA) for Fiscal Year 2001 amended Title 10, U.S. Code, section 641(1), to exclude from the ADL those RC officers on the Reserve Active Status List (RASL) ordered to active duty under the provisions of Title 10, U.S. Code, section 12301(d), other than ADSW, TTAD, ADT, or AGR duty under a call or order specifying a period of 3 years or less.

15.  On 28 December 2001, section 511 of the NDAA for Fiscal Year 2002 amended Title 10, U.S. Code, section 641(1), to effectively place on the ADL all RC officers other than warrant officers who are ordered to active duty under the provisions of Title 10, U.S. Code, section 12301(d), other than ADSW, TTAD, ADT, or AGR duty for 3 years or less unless the active duty order specifies that the officer shall remain on the RASL.

16.  Section 511 of the NDAA for Fiscal Year 2002 allows for the placement on the ADL, with retroactive effect, of RC officers previously excluded from the ADL as a result of section 521 of the NDAA for Fiscal Year 2001.  Section 511 of the NDAA for Fiscal Year 2002 also allows for the amendment of active duty orders for periods of 3 years or less to specify retention on the RASL, but without any retroactive effect.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that he never retired prior to 2001 and that he was considered and selected for promotion to LTC by a special selection board were carefully considered.

2.  The applicant was promoted to MAJ in the USAR on 6 August 1994.  His promotion eligibility date for USAR LTC would have been 6 August 2001 based on 7 years of time in grade at the lower grade.

3.  It appears the applicant was originally scheduled for retirement in July 1998 due to attaining 20 years of active Federal service as an AGR officer.  However, it also appears that rather than obtaining an extension of his AGR tour through board process, the applicant accepted an opportunity to continue serving on active duty by volunteering for assignment to fulfill an active Army requirement.

4.  There is no evidence that ARPERCEN Orders P-07-010109 releasing the applicant from active service effective 31 January 1998 and placing him on the Retired List effective 1 February 1998 in the rank of major (MAJ)/O-4 were amended or revoked.  However, it is reasonable to presume these orders were, in fact, amended or revoked based on his order to active duty to fulfill an active Army requirement.

5.  While the 24 July 2002 statement from the Chief, Special Actions Branch, Office of Promotions, Reserve Components, does not indicate when the applicant was considered and selected for promotion to LTC nor what was meant by his removal "based on administrative jurisdiction," when the applicant was ordered to active duty in an active Army status in July 1998, he would no longer have been eligible for consideration for promotion as an RC officer.

6.  The applicant may be alluding to the fact that his "situation" was subsequently resolved and officers selected for USAR promotions were being promoted in spite of being called to active duty.  However, that policy did not come into existence until October 2000, after the applicant entered active duty to fulfill an active Army requirement.  At the time he entered this period of active duty, the law required his placement on the ADL in accordance with Title 10, U.S. Code, section 641(1).  It appears the Office of Promotions, Reserve Components, U.S. Total Army Personnel Command, removed him from promotion consideration based on administrative jurisdiction because he was no longer on the RASL.  As such, it further appears he should have been considered for promotion to LTC by the active Army.  However, because he did not specifically request this relief and because he should be allowed to consider all consequences of this particular relief before it is granted, no action will be taken to have his records considered by an ADL special selection board at this time.

7.  In view of the foregoing, there is no basis for granting the applicant's request for promotion to LTC on the RASL.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X____  ___X ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

It is acknowledged that an error appears to have occurred in the applicant's case.  However, until or unless he elects to change his request for relief, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20080004198, dated 25 September 2008, at this time.



      ____________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)                                         AR20090016718



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ABCMR Record of Proceedings (cont)                                         AR20090016718



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