IN THE CASE OF:	 

		BOARD DATE:	  9 September 2010

		DOCKET NUMBER:  AR20100001237 


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 a change of his rank/grade from lieutenant colonel (LTC)/O-5 to colonel (COL)/O-6.

2.  The applicant states the U.S. Senate appointed him to colonel/O-6 in November 1999.  No action was taken on the appointment.  If he was inadvertently overlooked for promotion, this should be corrected.

3.  The applicant provides copies of:

* an excerpt from the Congressional Record for 16 November 1999
* Orders C-06-700725, U.S. Army Reserve Personnel Command (AR-PERSCOM), dated 10 June 1999
* Orders C-09-124881, same headquarters, dated 11 September 2001
* a memorandum to the Assistant Secretary of the Army (Manpower and Reserve Affairs), dated 20 February 2000

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 accepted appointment as a Reserve commissioned officer of the United States Army on 24 September 1971.  He served as an active member of the U.S. Army Reserve (USAR) and Army National Guard through 
30 September 1999.  From 19 June 1988 through 30 September 1999, the applicant served on active duty in various capacities as a medical services officer.  

3.  A memorandum, dated 21 October 1998, shows the applicant acknowledged receipt of notification he would be released from active duty no later than 
30 September 1999.  He indicated he intended to be released from active duty (REFRAD) and apply for nonregular retirement.  

4.  A DA Form 4187 shows, on 1 June 1999, the applicant requested transfer to the USAR Control Group (Retired) [a term used interchangeably with "Retired Reserve"] upon reaching his mandatory removal date (MRD) on 30 September 1999.  

5.  Orders C-06-700725, AR-PERSCOM, dated 10 June 1999, authorized the applicant's REFRAD effective 30 September 1999 and assigned him to the U.S. Army Control Group (Reinforcement).

6.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was REFRAD on 30 September 1999 and transferred to the USAR Control Group (Reinforcement).  

7.  The Congressional Record for 16 November 1999 shows the applicant's name was on a list of executive nominations submitted to the Senate for appointment to colonel.  The Congressional Record for 29 February 2000 shows the applicant was confirmed for appointment to colonel. 

8.  Orders C-09-124881, same headquarters, dated 11 September 2001, released the applicant from the USAR Control Group (Reinforcement) and assigned him to the Retired Reserve.  

9.  The record is void of documentation pertaining to the applicant's selection for promotion to COL/O-6.   

10.  During the processing of this case, on 4 March 2010, an advisory opinion was obtained from the U.S. Army Human Resources Command, St. Louis.  The advisory official stated the applicant's DD Form 214 and separation orders were incorrect.  The applicant should have been placed in the Retired Reserve after his REFRAD.  Had his REFRAD been processed correctly, he would not have been in an active status when the results of the 1999 colonel selection board were approved on 9 November 1999 and would not have been eligible for promotion.  

11.  On 21 May 2010, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

12.  The version of Army Regulation 600-8-24 (Officer Transfers and Discharges) in effect at the time stated a LTC/O-5 or below in a Reserve Component would be released 30 days after completing 28 years of service (computed under Title 10, U.S. Code, section 3853).  A LTC/O-5 recommended for promotion would be released from active duty under the criteria that applied to the higher grade.  An officer holding a permanent grade of colonel in a Reserve Component would be released on the fifth anniversary of the officer's appointment in that grade or 30 calendar days after the date he or she completes 30 years of service (computed under 10 U.S. Code 3853), whichever was later.  

13.  Army Regulation 135-175 (Separation of Officers) provides that members of the USAR will be removed from an active status upon completion of maximum authorized years of service.

14.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) provides policy on the promotion of Reserve Component officers.  The regulation in effect at the time stated an officer removed from an active status before the effective date of promotion would be removed from the promotion list.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to change of his grade from LTC/O-5 to COL/O-6 is not supported by the evidence.

2.  The applicant was REFRAD on 30 September 1999 and erroneously transferred to the USAR Control Group (Reinforcement).  Because he had reached his MRD, by regulation he should have been assigned to the Retired Reserve, which was not done until 11 September 2001.
3.  On 9 November 1999, his name appeared on an approved list for promotion to COL/O-6.  The list was forwarded to Congress for Senate confirmation and he was confirmed for promotion to COL/O-6.  Senate confirmation, however, is not the mechanism that authorizes promotion.  An officer must also meet other criteria for promotion, such as being in an active status.  The fact that the applicant was selected for promotion to COL/O-6 and confirmed by Congress does not overcome the fact that he reached his MRD prior to being selected for promotion.  

4.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20100001237



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)