BOARD DATE:	  4 May 2010

		DOCKET NUMBER:  AR20090018950


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:

* his retirement be rescinded
* he be allowed to join the U.S. Army Reserve (USAR)
* he be considered for promotion to lieutenant colonel (LTC)

2.  The applicant states he was a USAR Soldier serving on active duty in an Active Guard Reserve status.  He was a two-time non-select for promotion to LTC and was told he would have to retire.  He submitted his retirement request and was discharged on 30 April 2009 and retired on 1 May 2009.  He later learned he could have been put back in the USAR in another status – Individual Ready Reserve, Troop Program Unit, or Individual Mobilization Augmentee – and would have received consideration for promotion.  Had he known of this option, he would not have retired.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows:

* he was a major (MAJ) with a date of rank of 20010627
* he was on active duty from 20030824-20090430
* he had 20 years, 7 months, and 23 days of active service
* he was separated with sufficient service for retirement


CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service, the applicant was commissioned as a USAR second lieutenant (2LT) on 13 June 1986 upon graduation from officer candidate school with a concurrent call to active duty as a Signal Corps officer.

2.  The applicant was released from active duty in the rank of 2LT on 5 April 1988 due to failure of selection for permanent promotion to first lieutenant (1LT).  He had served 1 year, 9 months, and 23 days of active commissioned service for a total of 8 years, 6 months, and 14 days of total active service.  He was transferred to the USAR Control Group (Reinforcement).

3.  The applicant was promoted to the rank of 1LT in the USAR on 22 June 1992 with an effective date and date of rank of 12 June 1989.  He applied to this Board for reinstatement on active duty and on 9 May 1990 the Board denied his request for reinstatement.

4.  On 29 January 1993, the applicant was informed by memorandum that he had been non-selected for promotion to the rank of captain (CPT) by the selection board that convened on 23 November 1992.  He was finally promoted to CPT in June 1994 with a date of rank of 11 June 1994.

5.  The applicant was not selected for promotion to MAJ.  In 2001, he again applied to this Board, this time requesting promotion reconsideration under the Reserve Active Status List (RASL) criteria vice the Active Duty List criteria and the Board granted his request.  On 26 July 2001, he was promoted to the rank of MAJ with an effective date and date of rank of 27 June 2001.

6.  By his own admission, the applicant was twice non-selected for promotion to LTC and counseled that he must retire.  He submitted a request for retirement which was processed and approved.  He was honorably retired on 30 April 2009 and placed on the Retired List on 1 May 2009.

7.  Army Regulation 135-175 (Army National Guard and Army Reserve Separation of Officers) prescribes the policies, criteria, and procedures governing the separation of Reserve officers of the Army.  It provides that members of the Army Reserve will be removed from an active status for non-selection for promotion after a second consideration.  An officer in the grade of MAJ who has completed his statutory military service obligation will be discharged for non-selection for promotion to LTC after a second consideration by a DA Reserve Components selection board.

8.  Title 10, U.S. Code, section 14501, states an officer on the RASL in a grade below the grade of colonel who is in or above the promotion zone established for that officer's grade and competitive category and who is considered but not recommended for promotion or declines to accept a promotion for which selected shall be considered to have failed selection for promotion.  An officer shall be considered for all purposes to have twice failed selection for promotion if the officer is considered but not recommended for promotion a second time by a mandatory promotion board.

9.  Title 10, U.S. Code, section 14506, states a Reserve officer who holds the grade of major who has failed selection to the next higher grade for the second time and whose name is not on a list of officers recommended for promotion to the next higher grade shall, if not earlier removed from the RASL, be removed from that list.

DISCUSSION AND CONCLUSIONS:

1.  The applicant wants his retirement rescinded so he may be assigned to the Army Reserve and afforded promotion consideration to LTC under other USAR promotion guidelines.

2.  The applicant claims he was not properly counseled concerning his options following his second non-selection for promotion to LTC.  He contends he could have rejected retirement in favor of reassignment to another USAR status.

3.  Title 10 of the U.S. Code and Army Regulation 135-175 are clear on the subject of officers on the RASL who are twice non-selected for promotion to LTC; they must be involuntarily released or discharged unless eligible for retirement, in which case they will be retired.  There is no option to revert to another USAR status.

4.  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 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.

ABCMR Record of Proceedings (cont)                                         AR20090018950



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ABCMR Record of Proceedings (cont)                                         AR20090018950



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