IN THE CASE OF:	  

		BOARD DATE:	    11 May 2010

		DOCKET NUMBER:  AR20090017511 


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 request for correction of his records to show he completed 21 years, 9 months, and 14 days of active service and 25 years of creditable service; that he was promoted to the rank/grade of lieutenant colonel (LTC)/O-5; and placed on the retired list in rank/grade of LTC/O-5.

2.  The applicant states that in response to his application for consideration and promotion to LTC, the Army Board for Correction of Military Records (ABCMR) found that he had completed 15 years, 10 months, and 16 days of active Federal service and a total of 24 years and 25 days of creditable service.

   a.  He states that 8 years worth of his records were lost or destroyed and he was never considered for promotion to LTC in the U.S. Army Reserve (USAR).

	b.  He adds that these errors relating to his military service cost him a promotion and service awards.

3.  The applicant provides a letter from the Department of Defense (DOD) Inspector General (IG) and the Defense Finance and Accounting Service (DFAS) in support of his application, along with documents he submitted in support of his original 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 AR20080016139 on 24 September 2009.

   a.  The applicant requested promotion to LTC (USAR) and placement on the retired list in pay grade O-5.

   b.  The Record of Proceedings summarized the applicant's military service, which included the creditable service shown on three DD Forms 214 (Reports of Separation from the Armed Forces of the United States/Report of Separation from Active Duty).
   
   c.  The Board noted he was considered but not selected for promotion to LTC in the Army of the United States (AUS) on 22 May 1969.  On 10 July 1970, he was considered but not selected for promotion by the Department of the Army (DA) Standby Advisory Board (STAB) under the same criteria and instructions established for the regularly constituted DA LTC AUS board that adjourned on
22 May 1969.  Then, on 4 June 1971, he was considered but not selected for promotion by a second DA LTC AUS Promotion Selection Board.

	d.  The ABCMR concluded that the evidence failed to show the records reviewed by the various boards were incomplete.  The ABCMR also found that he was properly considered and not selected for promotion to LTC and denied the applicant's request.

2.  The applicant submitted a letter from DFAS to the Honorable Sam F---, U.S. House of Representatives, dated 23 October 2007, in response to an inquiry in his behalf, which was not previously reviewed by the Board.  Therefore, this is considered new evidence and as such warrant consideration by the Board.

3.  A DD Form 214 shows the applicant enlisted in the U.S. Air Force (USAF) for a period of 3 years on 4 January 1950 as an aviation cadet.  He was honorably discharged on 29 March 1950.  At the time he was credited with completing
2 months and 28 days of net active service.

4.  The applicant had a break in military service from 30 March 1950 through
5 February 1951.

5.  A DD Form 214 shows the applicant was inducted and entered active duty in the U.S. Army on 6 February 1951.  He was honorably released from active duty on 9 February 1953 and transferred to the Enlisted Reserve Corps (ERC) to complete his Reserve obligation.  At the time he had completed 2 years and
4 days of net active service this period.

6.  The applicant was appointed as a commissioned officer in the USAR on
13 April 1954.

7.  An ARPC Form 249-E (Chronological Statement of Retirement Points) shows:

	a.  from 4 January 1950 through 29 March 1950 - 2 months and 26 days
(i.e., 85 active duty/total points for retirement);

	b.  from 30 March 1950 through 5 February 1951 a break in military service;

	c.  from 6 February 1951 through 9 February 1953 - 2 years and 4 days
(i.e., 735 active duty/total points for retirement);

	d.  from 10 February 1953 through 12 April 1954 - 18 membership points and 18 total points;

	e.  from 13 April 1954 through 14 August 1954 there is no entry;

   f.  from 15 August 1954 through 14 August 1961 he earned the following retirement points:

  Retirement Year		 Extension 	Membership		Active Duty		 Total 
Ending (RYE) Date		Course Pts	__Points___		__Points___		Points

14 August 1955				   0				 15					 15				   30
14 August 1956				   0				 15					 18				   33
14 August 1957				   0				 15					 19				   34
14 August 1958				   8				 15					 20				   43
14 August 1959				   9				 15					 34				   58
14 August 1960				   4				 15					 17				   36
14 August 1961				   0				 15					 17				   32
   Subtotals					 21				105				140			 266

(He was credited with one (1) qualifying year for retirement during this period
(i.e., RYE 14 August 1959 based on earning more than 50 total points.)

   g.  from 15 August 1961 through 14 August 1974 he earned a total of
13 qualifying years for retirement (through service on extended active duty); and

   h.  from 15 August 1974 to 5 December 1974 he earned 5 membership points, 110 active duty points, and 115 total points.

8.  The applicant was promoted to major (MAJ)/O-4 in the AUS on 17 June 1966.  He was promoted to MAJ in the USAR on 26 September 1967.

9.  On 2 May 1973, the applicant was notified that having twice failed to be found fully qualified for temporary promotion to the next higher grade, Department of the Army policy required his release from active duty within 90 days.

10.  The applicant's DA Form 66 (Officer Qualification Record) shows in item 18 (Record of Assignments) he arrived at Fort Ord, CA, on 11 May 1973 with duties unassigned.  He underwent a physical examination on 17 May 1973.  A medical evaluation board met on 19 November 1973 and he was placed in a patient status in the Medical Holding Company, U.S. Army Medical Department Activity, Fort Ord, from 19 November 1973 through 4 December 1974.

11.  A DA Form 199 (Physical Evaluation Board [PEB] Proceedings shows a PEB convened on 8 October 1974 and found the applicant physically unfit.  The PEB recommended a combined rating of 60% and that the applicant be permanently retired.

12.  Headquarters, U.S. Army Military Personnel Center, Alexandria, VA, message, date-time-group 211232Z November 1974, shows the applicant was permanently retired with 60% disability on 4 December 1974 after completing
15 years, 10 months, and 16 days of active Federal service and 24 years and
25 days of service for basic pay purposes.  He was placed on the retired list in the rank/grade of MAJ/O-4, effective 5 December 1974.

13.  A DD Form 214 shows the applicant entered active duty on 28 September 1961 and he was honorably retired on 4 December 1974 in the rank/grade of MAJ/O-4 by reason of permanent physical disability retirement.

   a.  Item 18 (Record of Service) shows in:

	(1)  block a (Net Active Service This Period) - 13 years, 2 months, and
7 days;

   (2)  block b (Prior Active Service) - 2 years, 8 months, and 9 days;

   (3)  block c (Total Active Service) - 15 years, 10 months, and 16 days;

   (4)  block d (Prior Inactive Service) - 8 years, 2 months, and 9 days; and
   (5)  block e (Total Service for Pay) - 24 years and 25 days.
   
b. He was transferred to the USAR Control Group (Retired).

   c.  Item 29 (Signature of Person Being Separated) shows the applicant placed his signature on the document.

14.  Headquarters, U.S. Army Human Resources Command (USA HRC),
St. Louis, MO, letter, dated 26 December 2006, shows the Supervisor, Retirements and Annuities, advised the applicant that promotion consideration to LTC requires the Soldier to have seven years time-in-grade.  He also advised the Soldier is considered by a promotion board in the sixth year of service as a MAJ.

15.  In support of his application, the applicant provides the following documents.

	a.  A DOD IG letter, dated 24 August 2007, that shows the Director, DOD IG, confirmed that USA HRC, St. Louis, had advised the applicant that his military records had been corrected to show 21 years, 9 months, and 14 days, with
25 years of creditable service.

   b.  A DFAS letter, dated 23 October 2007, that shows the Director, DFAS, Cleveland, OH, responded to an inquiry on behalf of the applicant from the Honorable Sam F---.  He informed the Honorable F--- that DFAS corrected the applicant's retired pay record to show he has 21 years, 9 months, and 14 days of service.

16.  In connection with the processing of this case, on 23 March 2010, a staff member of the Board requested the Retired and Annuitant Pay, DFAS, verify information relevant to the applicant's grade and creditable service for retired pay.

   a.  On 9 April 2010, DFAS verified that the applicant retired in the rank/grade of MAJ/O-4, effective 5 December 1974.

b. DFAS also verified he was credited with 15 years, 10 months, and 23 days
of total active service; 21 years, 9 months, and 14 days of creditable service; and 24 years and 25 days of service for basic pay.

17.  Army Regulation 140-185 (Training and Retirement Points Credit and Unit Level Strength Accounting Records) prescribes the types of training and activities for which retirement points are authorized.  It also discusses the procedures for recording retirement point credits and training for Reserve Component Soldiers.  Paragraph 2-1 (Criteria for crediting retirement points) states that the limitations 
on the number of points which may be credited to a Soldier during a retirement year are a maximum of 365 (366 during leap year) points, and a maximum of
90 points for inactive duty training and membership points; however, the Annual or Terminal Statement of Retirement Points will report all points earned.

18.  DOD Financial Management Regulation (FMR), Volume 7A (Military Pay Policy and Procedures - Active Duty and Reserve Pay), Chapter 1 (Basic Pay), paragraph 0101 (Creditable Service), subparagraph 010101 (Service Which is Creditable), provides, in pertinent part, that for most members who enter and serve on active duty without a break in service, the basic pay date is the date the member enters active or inactive service.  If, however, there is a break in service, the time between periods of service usually is not included.  This document also states, in pertinent part, that creditable service periods include active or inactive service in the Regular service in the Army, Air Force, Navy, Coast Guard, and Marine Corps; Army, Naval, Marine Corps, Air Force, and Coast Guard Reserve; Army of the United States (service without specification of component); Army National Guard; Army National Guard of the United States; National Guard, and National Guard of the United States.  

19.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) prescribes policy and procedures used in 
the selection and promotion of commissioned officers of the Army National Guard of the United States (ARNGUS) and the commissioned and warrant officers of the USAR.

   a.  Chapter 2 (Promotion Eligibility and Qualification Requirements), Section III (Board Considerations), Table 2-1(Time in Grade (TIG) Requirements Commissioned Officers, Other Than Commissioned Warrant Officer), provides that for promotion to LTC the minimum years in lower grade is 4 years and the maximum years in lower grade is 7 years.
   
   b.  Paragraph 2-5 (Eligibility for consideration) states that to be eligible for consideration for promotion to the next higher grade, an ARNGUS or USAR officer must have continuously performed service on either the Reserve Active Status List or Active Duty List (or a combination of both lists) during the 1- year period ending on the convening date of the promotion board, and must meet the TIG requirements in Table 2-1.  An officer who has an established date for removal from active status that is 90 days or less from the convening date of the selection board for which the officer would otherwise be eligible, is not eligible for consideration.  An established date for removal is a date that is prescribed by statute, regulation, or published on orders and not in conflict with law or regulation.
   
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his request for correction of his records should be reconsidered because he completed 21 years, 9 months, and 14 days of active service and 25 years of creditable service; eight years of his records were lost or destroyed; and he should have been promoted to LTC and placed on the retired list in pay grade O-5.

2.  The applicant served on active duty in the USAF from 4 January 1950 through 29 March 1950 and was credited with completing 2 months and 28 days of net active service.  A calculation of this period of service shows it actually equates to 2 months and 26 days.  In addition, his ARPC Form 249-E confirms he was credited with 2 months and 26 days of service during this period.  However, since the DD Form 214 for the period ending 29 March 1950 was issued by the USAF, no action is being taken by the ABCMR to correct this document.

3.  The applicant had a break in military service from 30 March 1950 through
5 February 1951.  Therefore, he accrued no creditable military service during this period.

4.  The applicant served on active duty from 6 February 1951 through 9 February 1953 and he was credited with 2 years and 4 days of net active service this period.  A calculation of this period of service confirms it equates to 2 months and 4 days of service.  In addition, his ARPC Form 249-E documents this active duty service.

5.  From 10 February 1953 through 14 August 1961 the applicant earned a total of 140 active duty points (i.e., 4 months and 20 days) and one (1) qualifying year for retirement.

6.  The applicant served on active duty from 28 September 1961 through
4 December 1974 and he was credited with 13 years, 2 months, and 7 days of net active service this period.  A calculation of this period of service confirms it equates to 13 years, 2 months, and 7 days.  In addition, the applicant's ARPC Form 249-E documents 13 qualifying years of service during this period.

   a.  A calculation of the applicant's prior active duty service (i.e., 2 months and 26 days; plus 2 years and 4 days; plus 140 days (or 4 months and 20 days) shows it totals 2 years, 7 months, and 20 days.  This is 19 days less than that shown in item 18, block b, of his DD Form 214 for the period ending 4 December 1974 (i.e., 2 years, 8 months, and 9 days).  Despite this error in favor of the applicant, no action is being taken to correct the prior active service recorded on this document.
   b.  A calculation of the applicant's total active service (i.e., 13 years,
2 months, and 7 days; plus 2 years, 7 months, and 20 days) shows it totals
15 years, 9 months, and 27 days of total active service.  This is 19 days less than the total shown in item 18, block c, of his DD Form 214 for the period ending
4 December 1974 (i.e., 15 years, 10 months, and 16 days).  Despite this error in favor of the applicant, no action is being taken to correct the total active service recorded on this document.
   
   c.  It is noted that DFAS records show the applicant is credited with 15 years, 10 months, and 23 days of total active service, which is 26 days more than it appears the applicant actually completed.  Again, despite this error in favor of the applicant, no action is being taken to correct his pay record.

   d.  A calculation of the applicant's prior inactive service, which spanned from 10 February 1953 through 27 September 1961, shows it equates to 8 years,
7 months, and 18 days.  However, in order to avoid duplication of service credit, the applicant's 140 days (i.e., 4 months and 20 days) of active duty during this period must be subtracted (i.e., 8 years, 7 months, and 18 days less 4 months and 20 days).  This calculation equates to 8 years, 2 months, and 28 days.

   e.  Item 18, block d, of the applicant's DD Form 214 for the period ending
4 December 1974 shows 8 years, 2 months, and 9 days of prior inactive service.  
This is 19 days less than the applicant actually should have been credited with.  However, it is noted that this 19-day difference is accounted for in the applicant's active service [emphasis added] shown on this DD Form 214.  Therefore, despite this 19-day error (that actually favors the applicant), no action is being taken to correct the total inactive service recorded on this document.

   f.  A calculation of the applicant's total active service (i.e., 15 years,
9 months, and 27 days) plus his total inactive service (i.e., 8 years, 2 months, and 28 days) confirms it totals 24 years and 25 days.  Item 18, block e, of his
DD Form 214 for the period ending 4 December 1974 shows this total.  DFAS records also show the applicant is credited with 24 years and 25 days of total service for basic pay.  In addition, DFAS records confirm he is credited with
21 years, 9 months, and 14 days for service percentage multiplier.

7.  Based on all of the foregoing, it is concluded the applicant completed:

a. 15 years, 9 months, and 27 days of total active service;

b. 8 years, 2 months, and 28 days of total inactive service;

c. 21 years, 9 months, and 14 days for service percentage multiplier; and
   d.  24 years and 25 days of total service for pay.

8.  There is no evidence and the applicant provides insufficient evidence to show that eight years of his records were lost or destroyed resulting in a loss of military service credit.  In addition, the evidence fails to confirm he completed 25 years of creditable service.

9.  The applicant was considered and not selected for promotion by two properly constituted DA AUS LTC promotion selections boards, which included a third consideration and non-selection by a DA STAB.  As a result, he was required to be released from active duty (REFRAD) not later than 90 days after his final notification of non-selection, which would have been in August 1973.

   a.  The applicant entered the Physical Disability Evaluation System (PDES), which delayed his REFRAD.

	b.  The applicant was eligible for consideration for promotion to LTC in the USAR beginning 26 September 1971 (4 years TIG).  However, he was not selected for promotion to LTC in the USAR prior to the date of his separation.

	c.  The applicant had an established date for removal from active status. Therefore, he was not eligible for promotion consideration from August 1973 through the date of his separation.

   d.  Records show that the applicant was in a patient status beginning
19 November 1973.  On 8 October 1974, a PEB found the applicant unfit for duty, he was honorably REFRAD on 4 December 1974 based on permanent disability, and placed on the retired list effective 5 December 1974.

   e.  Therefore, in view of all of the foregoing, there is insufficient evidence to show the applicant should have been promoted to LTC/O-5 and placed on the retired list in pay grade O-5.

10.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.


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 AR20080016139, dated 24 September 2009.



      _________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)                                         AR20090017511



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ABCMR Record of Proceedings (cont)                                         AR20090017511



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