IN THE CASE OF:	  

		BOARD DATE:	    5 August 2010

		DOCKET NUMBER:  AR20090021619 


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 adjustment to his date of rank to major from 13 August 2004 to 22 July 1997 as determined by the Army Board for Correction of Military Records (ABCMR) as his promotion eligibility date (PED) and promotion consideration to lieutenant colonel by the next scheduled Special Selection Board (SSB).  He also requests adjustment to his mandatory removal date (MRD) from 30 June 2012 to 14 October 2017 based on his break in service of over 5 years.

2.  The applicant states in 1997 he was considered and not selected for promotion to major due to omissions of documentations which constituted material error.  As an officer twice non-selected for promotion, he was discharged from the Army National Guard (ARNG) on 1 February "1997".  At the time he received no counseling about his entitlement to request an SSB.  Upon his reenlistment in 2002, he was advised of his entitlement for promotion considerations by an SSB.  An SSB subsequently adjourned on 18 June 2003 and selected him for promotion to major with a projected PED of 22 July 1997.

3.  The applicant also states that on 2 November 2004, the ABCMR recommended six corrective actions to his military records, four of which have been completed.  The ARNG was “directed” to take action on the six recommended administrative actions no later than 15 March 2005.  Two actions have not been corrected and remain outstanding as follows:  

	a.  Promotion to major on the date of eligibility as determined by appropriate Departmental official using the criteria cited.  The date of eligibility for promotion as determined by the board was 22 July 1997.  This action has not been completed.

	b.  The offsetting of any pay received from his voided enlisted status and difference that may be due.  This action and reconciliation has not been completed.  His opportunity to be promoted to major, to serve and contribute in that capacity, has been delayed multiple times.

4.  The applicant further states he was separated from the Alabama ARNG (ALARNG) effective 1 February "1997" and then reentered on 17 May 2002.  The time between his dates of separation and enlistment constitutes 1,931 days or over 5 years, time which is currently being counted toward his MRD.  The 5 years separation from the military was a direct result of a material error and caused this interruption of his military service.  In 1997, he was counseled he could not return to the Reserve for two years.  Desiring to continue service, he then enlisted in 2002.  In effect, his ARPC Form 249-E (Chronological Statement of Retirement Points), dated 13 October 2009, shows from 28 January 1997 to 28 January 2002, four of those years while separated, are not qualifying years of retirement (good years).  As he was separated from military service for 1,931 days, it is reasonable to expect his MRD to be recalculated and thereby advanced to a new MRD of 14 October 1997.

5.  The applicant provides copies of the following documents:

* a DA Form 4037-E (Officer Record Brief (ORB), dated 13 October 2009
* a memorandum, Subject:  Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty, dated 19 December 2003
* an ABCMR Record of Proceedings, dated 2 November 2004
* an APRC Form 249-E

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a 

substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records show that he was appointed in the ALARNG as a second lieutenant, Medical Services Corps, effective 30 June 1984.  He was promoted to first lieutenant, effective 29 June 1987, and to captain, effective 2 October 1989.  Based on the required completion of 7 years maximum time in grade (MTIG), his PED for major was 1 October 1996.

3.  He was considered and not selected for promotion to major by the 1996 and 1997 Army Medical Department (AMEDD) Reserve Components Selection Boards (RCSB) that convened on 23 January 1996 and 14 January 1997 and adjourned on 9 February 1996 and 31 January 1997, respectively.  The board results were approved on 22 May 1996 and 22 July 1997, respectively.

4.  He was honorably discharged from the ALARNG, as a captain, effective 1 February 1998, for non-selection for promotion.  He had a break in service from 2 February 1998 to 16 May 2002, a period of 4 years, 3 months, and 14 days (1,564 days).

5.  He enlisted in the ARLARNG, in pay grade E-4, effective 17 may 2002.  He was promoted to pay grade E-5 effective 22 December 2003.

6.  On 19 December 2003, the Total Army Personnel Command, St. Louis Missouri, issued a memorandum, Subject:  Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty.  The memorandum stated he had been selected for promotion to major by an SSB under the 1997 year criteria.  The effective date of promotion would be either of the following dates:

   a.  2 July 1997,

   b.  the date Federal recognition was extended in the higher grade, or
      
   c.  the date following the date Federal recognition was terminated in the current Reserve grade.

The memorandum also stated that the presidential approval date of the 1997 year criteria board was 22 July 1997 and this was the earliest promotion effective date to which he was entitled.

7.  On 4 February 2004, the ARNG revoked its January 1998 discharge orders. On an unspecified date, he was returned to an active Reserve commissioned status.

8.  On 18 February 2004, he elected to delay his promotion to major until 17 June 2006.  He acknowledged that any time during the delay or at the end of the approved period of delay, he could choose one of the following options:

   a.  to be promoted into the higher grade if a higher graded position was made available to him,

   b.  if there was no higher graded position and he desired to be promoted, his Federal recognition would be withdrawn and he would be transferred to the Individual Ready Reserve (IRR) and promoted on his PED, or 

   c.  to decline the promotion at which time his name would be removed from the promotion list and he would be considered to have been not selected for promotion.

9.  His request was subsequently approved on 11 March 2004.

10.  The applicant was appointed a CPT in the ALARNG on 4 June 2004.  He was separated from the ALARNG, effective 13 August 2004, and he was transferred to a U.S. Army Reserve (USAR) Troop Program Unit (TPU).

11.  On 13 August 2004, the Army Human Resources Command, St. Louis (AHRC-STL), issued a memorandum promoting him to major in the USAR effective 13 August 2004.

12.  On 13 October 2004, the ARNG revoked his 17 May 2002 ARNG enlistment.

13.  On 2 November 2004, the ABCMR determined/recommended his 17 May 2002 ARNG enlistment be voided, he be promoted to major on his date of eligibility as determined by appropriate Departmental officials, an adequate explanation be placed in his official personnel files to show the gap in his officer evaluation reports was not caused by any fault on his part, expunging all documents related to his now voided non-selection for promotion by the RCBS and two discharges, and offsetting his pay.

14.  On 21 June 2006, he was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).

15.  His ARPC Form 249-E shows from his retirement year ending (RYE) 28 January 1997 through 27 January 2002 he did not earn qualifying years for retirement.  For each year between those RYEs he only earned 15 membership points.  The form also shows he was credited with 23 years and 1 month of qualifying years for retirement as of his RYE 27 January 2009.

16.  He will reach age 60 on 2 August 2020.

17.  The Soldier Management System, located on the AHRC-STL Integrated Web Service (IWS), shows his MRD is 1 July 2012.

18.  On 29 July 2010, a staff member of the Defense Finance and Accounting Service verified their records show the applicant’s pay had not been offset as directed by the ABCMR on 2 November 2004.  Based on this inquiry, action was started to get the applicant’s pay corrected.

19.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that officers selected by an SSB are eligible for the same date of rank that they would have received by the original board in which the error occurred.  Promotion of unit officers may only be effective upon positioning in the higher grade or assignment to the IRR for promotion on the MTIG date.  If an officer selected by a mandatory promotion board has an MTIG date before the approval date of the original board, his/her date of rank and promotion effective date (pay and allowances) will be no earlier than the approval date of the original board.

20.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfer) provides, with some exception, for separation of a major for maximum age and/or service.  Chapter 7 specifies a major may not exceed 28 years of service or age 60.  This regulation also provides removal must be accomplished within 30 days after the date of completion of the required years of service.

21.  Army Regulation 135-180 (ARNG and Army Reserve-Qualifying Service for Retired Pay NonRegular Service) specifies a Reservist must have a minimum of 50 retirement points each retirement year to have those years credited as qualifying service.  Only Soldiers assigned to an active Reserve status are authorized to earn retirement points credit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his current MRD should be adjusted to 14 October 2017 based on his over 5 years of separation has been acknowledged.  The evidence shows he was appointed in the ALARNG effective 30 June 1984.  He was twice non-selected for promotion to major and separated on 1 February 1998 (not 1997).  He enlisted in the ALARNG on 17 May 2002 after incurring a 4 year, 3 month, and 14 day break in service.  In 2004, he was reinstated in his previous Reserve commissioned status as a result of his promotion selection by an SSB.

2.  Upon his reinstatement to his previous Reserve commissioned status it appears his MRD was properly established based on his initial appointment date and completion of 28 years of service.  He has not shown that his current MRD is in error or unjust and should be recalculated.  The evidence shows he will have completed 28 years of commissioned service by his MRD; therefore, he is not eligible for extension of his MRD.  The revocation of the applicant's discharge was effected by this Board at his request.  Once his discharge was revoked, it wiped out his break in service.

3.  His contention that his date of rank for major should be changed from 13 August 2004 to 22 July 1997 has also been noted.  The evidence shows in June 2003 he was selected for promotion to major by an SSB with a projected promotion date of 22 July 1997, the approval date of the 1997 RCSB.  He was eligible for a date of rank of 22 July 1997 providing he was serving in a major’s position.  On 18 February 2004, while serving as an enlisted member of the ALRNG, he elected to delay his promotion to major until 17 June 2006.  This was probably most likely because he could not locate an available major’s position.  His delay request was approved on 11 March 2004.

4.  He was transferred to a USAR TPU in a higher graded position and promoted to major effective 13 August 2004.  This was the earliest date he could be promoted based on his assignment to a higher graded position.  Pertinent regulations clearly show that TPU officers selected by an SSB are eligible for the same date of rank that they would have received by the original board provided they are positioned in the higher graded position.  

5.  He has not shown he was or would have been placed in a major’s position on 22 July 1997.  It cannot be presumed a major’s position for his specialty existed at the time.  The evidence shows he chose to wait for an available major’s position to be promoted versus assignment to the IRR for an earlier promotion.  On 4 June 2004, he was appointed in the ALARNG as a captain.  He was properly promoted to major as a result of his assignment to a USAR TPU’s major’s position effective 13 August 2004.

6.  With a date of rank for major of 13 August 2004 and the required completion of 7 years MTIG, the earliest date he is eligible for promotion to lieutenant colonel would be 12 August 2011.  Based on the foregoing, he is not entitled to promotion consideration to lieutenant colonel by an SSB under a year criteria earlier than 2011.

7.  It is noted he was properly credited with the maximum allowable (15 membership points) points covering his 4 years, 3 months, and 14 days break in service.

8.  It is also noted the DFAS has begun action to correct his pay as directed in the 2 November 2004 ABCMR action.

9.  In view of the foregoing, there is no basis for granting the requested relief.

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)                                         AR20090021619



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ABCMR Record of Proceedings (cont)                                         AR20090021619



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