IN THE CASE OF:
BOARD DATE: 16 November 2010
DOCKET NUMBER: AR20100011648
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 earlier request for promotion to the rank/grade of colonel (COL)/O-6 in the Retired Reserve with all benefits and privileges; in effect, non-regular retired pay as a COL.
2. The applicant states an injustice occurred in 1994 when he was not promoted to COL after being selected for promotion to COL by the 1994 Colonel Army Reserve Component Promotion Board. He states he previously applied to the Army Board for Correction of Military Records (ABCMR) and its 19 March 1997 decision denying him his promotion to COL was based on incomplete information. He states he did return to the U.S. Army Reserve (USAR) in an active status after being transferred to the Retired Reserve. He states he met the qualifications for a Civil Affairs area of concentration (AOC) officer specialty and he was assigned to the 360th Civil Affairs Brigade (Airborne). However, after returning to an active reserve status, he was never promoted to COL. Based on his deployment to Bosnia, he states the 1996 COL's board did not consider his promotion file.
3. The applicant provides the following documentary evidence:
a. ABCMR Record of Proceedings, Docket Number AC95-08778, dated 19 March 1997;
b. a letter from the Commander of American Legion Post 37, dated 28 March 2008;
c. U.S. Army Reserve Personnel Center (ARPERCEN), St. Louis, MO, Orders C-05-421624, dated 17 May 1994, transferring him to the Retired Reserve, effective 12 May 1994;
d. a memorandum from U.S. Total Army Personnel Command (USTAPC), St. Louis, dated 14 October 1994, notifying him he was selected for promotion to COL pending Senate confirmation;
e. ARPERCEN Orders C-03-510154, dated 27 March 1995, voluntarily releasing him from the Retired Reserve and assigning him to the USAR Control Group (Reinforcement), effective 27 March 1995;
f. ARPERCEN Orders C-03-811388, dated 19 March 1996, voluntarily releasing him from the USAR Control Group (Reinforcement) and assigning him to Headquarters and Headquarters Company (HHC), 360th Civil Affairs Brigade (Airborne), effective 14 March 1996;
g. Headquarters, U.S. Army Special Operations Command, Fort Bragg, NC, Orders 142-9, dated 22 May 1997, released him from (HHC), 360th Civil Affairs Brigade (Airborne) and reassigned him to the USAR Control Group (Retired), effective 21 April 1997;
h. DA Form 67-8 (U.S. Army Officer Evaluation Report [OER]) for the period ending 5 January 1992;
i. DA Form 67-8 for the period ending 3 January 1997; and
j. excerpts from the Congressional Record for the 104th Congress, dated 4 January 1995.
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 AC 95-08778 on 19 March 1997.
2. The applicant's aforementioned documentary evidence, his reentry into the USAR in an active status, and his self-authored letter are new evidence and argument which warrant consideration by the Board.
3. The applicant was commissioned as an infantry second lieutenant in the USAR on 22 March 1969. He served on active duty for a 2-year period and he
was released from active duty on 21 March 1971. He was transferred to the USAR Control Group (Annual Training) to complete his military service obligation.
4. He served continuously in the USAR in an active reserve status. He was promoted to the rank of lieutenant colonel in pay grade O-5 on 13 June 1988.
5. On 17 August 1991, he received written notification that he was eligible for retired pay at age 60 based upon completion of 20 qualifying years of service for non-regular retirement.
6. By memoranda dated 2 October 1992 and 1 October 1993, USTAPC notified him that a Reserve Selection Board had considered him for promotion to colonel under the provisions of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers). Each of these boards did not recommend the applicant for promotion to colonel and stated his nonselection did not constitute a passover for promotion.
7. On 12 May 1994, the applicant was transferred to the Retired Reserve in the rank of lieutenant colonel by reason of completing 20 or more years of qualifying service for non-regular retirement.
8. By USATPC memorandum, dated 14 October 1994, he was notified he had been selected for promotion to colonel pending Senate confirmation. His projected promotion eligibility date (PED) was 19 August 1994. The memorandum further stated that to be promoted on his PED he must remain in an active status and be medically qualified for retention.
9. Based on excerpts from the Congressional Record for the 104th Congress, dated 4 January 1995, his name appears on the list for promotion to colonel in the USAR.
10. By memoranda dated 16 October 1995 and 16 September 1996, USTAPC notified him that a Reserve Selection Board had considered him for promotion to colonel under the provisions of Army Regulation 135-155. Each of these boards did not recommend the applicant for promotion to colonel and stated his nonselection did not constitute a passover for promotion.
11. Between 27 March 1995 and 19 March 1996, he was released from the Retired Reserve, transferred to the USAR Control Group (Reinforcement), and subsequently released and assigned to HHC, 360th Civil Affairs Brigade (Airborne).
12. On 16 June 1996, he was ordered to active duty in support of Operation Joint Endeavor. He was honorably released from active duty on 3 January 1997 and he transferred to his USAR unit. He was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) that confirms he served in Bosnia
from 27 June to 14 December 1996, for a period of 5 months and 18 days.
13. On 21 April 1997, he was reassigned to the USAR Control Group (Retired) in the rank of lieutenant colonel.
14. References:
a. Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) states an officer (other than a commissioned WO) or enlisted Soldier who has accrued 20 years of qualifying service for retired pay may voluntary request a transfer to the Retired Reserve.
b. Army Regulation 135-155 provides, in pertinent part, for the promotion consideration of officers to the rank of colonel. Selection boards will convene at the discretion of the Secretary of the Army and will consider and recommend only those officers who are in an active status. Headquarters, Department of the Army (HQDA) will prescribe the minimum promotion service and total years of commissioned service required for an officer in each branch. HQDA will prescribe the number of officers to be recommended for promotion and announce the zones of consideration for unit and nonunit lieutenant colonels in all branches. A succeeding year selection board will consider officers not selected for promotion to colonel. However, officers must remain in an active status and meet the criteria for the next announced promotion zone of consideration.
c. Army Regulation 135-155 further provides that an officer removed from an active status before a promotion is finalized [the effective date of promotion] will be removed from the promotion list. Removal will not be considered a nonselection. If the officer returns to an active status, the officer's name will not (emphasis added) be placed on a promotion list unless he/she is again recommended by a promotion selection board or a Federal recognition board. The officer will not (emphasis added) be considered for a Reserve of the Army promotion until at least 1 year after the date he/she returned to an active status.
d. Title 10, U.S. Code, section 1406, states a person who is entitled to non-regular service retirement pay is entitled to retired pay at the rate of the highest grade held satisfactorily by the person at any time in the armed forces. The highest grade in which a person served satisfactorily as an officer shall be determined in accordance with section 1370(d) of this title.
e. Title 10, U.S. Code, section 1370(d), states:
(1) In order to be credited with satisfactory service in an officer grade above major a person must have served satisfactorily in that grade (as determined by the Secretary of the military department concerned) as a reserve commissioned officer in an active status, or in a retired status on active duty, for not less than three years.
(2) A person who has completed at least 6 months of satisfactory service in grade may be credited with satisfactory service in the grade in which serving at the time of transfer or discharge, notwithstanding failure of the person to complete 3 years of service in that grade, if that person is transferred from an active status or discharged as a reserve commissioned officer because the person no longer meets the qualifications for membership in the Ready Reserve solely because of a physical disability, as determined, at a minimum, by a medical evaluation board and at the time of such transfer or discharge.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he should be promoted to the rank of colonel, his record should be corrected to show he retired in pay grade O-6, and he receive the financial benefits of this promotion.
2. Prior to his colonel PED date of 19 August 1994, on 12 May 1994, he was voluntarily transferred to the Retired Reserve. Therefore, he was not in an active status and by regulation he was not eligible for promotion to colonel.
3. Based on the evidence of record, he transferred from the Retired Reserve to an active status in 1995 and he was subsequently he was ordered to active duty in support Operation Joint Endeavor. In his arguments presented to the Board, he stated his promotion file did not go before another promotion board after he returned to an active status. Within his official military personnel file (OMPF) there are two documents that refute this contention. He was notified by memoranda, dated 16 October 1995 and 16 September 1996, that Promotion Selection Boards had convened and considered him for promotion to colonel while he was in an active status. However, these two selection boards did not recommend him for promotion to colonel.
4. Title 10, U.S. Code, section 1370(d) states that in order to be retired in a grade above major, a person must serve in that grade in an active status for
3 years. An exception is provided for a person who no longer meets the qualifications for membership in the Ready Reserve solely because of a physical disability.
5. Since he did not serve in the grade of colonel for 3 years in an active status, he could not be transferred to the Retired Reserve as a colonel. Therefore, he was appropriately assigned to the Retired Reserve and placed on the Retired List in the grade of lieutenant colonel and paid accordingly.
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 AC95-09778, dated 19 March 1997.
___________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) AR20100011648
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ABCMR Record of Proceedings (cont) AR20100011648
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