IN THE CASE OF:	  

		BOARD DATE:	  19 August 2010

		DOCKET NUMBER:  AR20100011785 


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 change of his retired rank/grade to major (MAJ)/O-4.

2.  The applicant states he believes his retired rank/grade should be MAJ/O-4.  He claims he possesses lawful promotion orders now labeled as an administrative error.  He claims the orders were never revoked or rescinded but have been removed from his record.  He states he was transferred to the Retired Reserve which precluded his promotion.  He states he does not believe he was adequately counseled about retirement and wrongfully denied the opportunity for promotion.

3.  The applicant provides the 14 documents identified in the Table of Contents included with his application.

CONSIDERATION OF EVIDENCE:

1.  The record shows after serving in the Regular Army (RA) and U.S. Army Reserve (USAR) in an enlisted status from 29 January 1974 through 28 January 1982, he was commissioned a second lieutenant in the USAR on 29 January 1982.

2.  On 31 January 1994, the Army Reserve Personnel Center (ARPERCEN), St. Louis, MO [now known as Army Human Resources Command, St. Louis 
(HRC-STL)] issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  It informed the applicant he had completed the required years of qualifying service to be eligible for retired pay at age 60 upon application.  The notification indicates he was assigned to a troop program unit (TPU) at that time.

3.  The record shows the applicant was promoted to first lieutenant (1LT)/O-2 on 
20 January 1984, and to captain (CPT)/O-3 on 1 April 1986.

4.  On 26 May 1994, the U.S. Army Total Personnel Command, St. Louis, published a memorandum notifying the applicant he had been selected for promotion to MAJ/O-4 by a Reserve Component's Selection Board (RCSB) and that his promotion eligibility date was 31 March 1993.

5.  The applicant's Statement of Retirement Points indicates he actively participated with his TPU through retirement year ending 28 January 1995.

6.  On 30 June 1995, ARPERCEN Orders C-06-541559 directed the applicant’s transfer to the Retired Reserve, in the rank/grade of CPT/O-3, effective 30 June 1995.  These orders indicate he was assigned to the Individual Ready Reserve (IRR) at the time.  These orders were amended by ARPERCEN Orders C-06-541559A01 which amended the retired rank/grade to MAJ/O4.

7.  On 27 May 2008 and 21 April 2009, HRC-STL published orders recalling the applicant to active duty from retired status in the rank/grade of CPT/O-3, effective 1 June 2008 and 2009, respectively.  The applicant remained serving on active duty in this status as of the date of his application to the Board.

8.  In connection with the processing of this case, on 11 June 2010, an advisory opinion was obtained from the U.S. Army Reserve Command (USARC), Deputy Chief of Staff, G-1.  The advisory official recommended granting the applicant full relief.  The official indicates the applicant was selected for promotion to MAJ/O-4 and on 30 June 1995, he was transferred to the Retired Reserve.  It states there is no record of the applicant requesting transfer to the Retired Reserve at the time and on 31 July 1995, the order transferring him to the Retired Reserve was amended to reflect the rank/grade MAJ/O-4.  On numerous occasions the applicant sought clarification as to his true rank and the issue remains unresolved.  It further indicates HRC-STL promotion officials confirm under the policy in existence at the time, the applicant would have been automatically promoted to MAJ/O-4; however, due to the passage of time and destruction of records neither USARC or HRC-St. Louis can confirm the applicant was ineligible for promotion to MAJ/O-4 in 1994.

9.  The advisory official further states the applicant has served on Retiree Recall missions since 2008; however, a retiree recall is not eligible for promotion.  The fact the applicant was selected for promotion and there exists no evidence proving him ineligible for promotion at the time, USARC strongly supports the 
conclusion that the failure to promote the applicant was in error through no fault of his own.

10.  On 16 June 2010, the applicant was provided a copy of the advisory opinion for information and to allow his the opportunity to submit comments or a rebuttal.  He did not respond.

11.  The applicant provides an HRC-STL letter, dated 22 December 2009, which responded to his request for a clarification of his rank.  It indicates that although he was selected for promotion to MAJ/O-4, he would have had to be in an authorized position for that rank in order to be promoted and his record showed he was not in a MAJ’s position at the time.  It further indicates once he transferred to the Retired Reserve he was ineligible for promotion and as a result the amendment he received to his Retired Reserve orders showing his rank as MAJ/O-4 was an administrative error.

12.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the Army National Guard of the United States (ARNGUS) and of commissioned and warrant officers (WO) of the USAR.

13.  Chapter 4, Section III of the promotion regulation provides guidance on dates of promotion.  It states a unit officer is promoted after selection if all qualifications are met.  Paragraph 4-9 contains guidance on promoting officers selected for promotion.  It states a USAR TPU officer who is considered and selected by a mandatory promotion board will be promoted and transferred from the unit to the IRR.  The officer will be promoted within 60 days of receipt of promotion notification or the normal established promotion eligibility date.  Officers transferred to the IRR to accept a promotion will be promoted upon attaining the maximum years in grade (MYIG).  Table 2-1 contains the time in grade requirements for promotion.  It shows the MYIG for promotion to MAJ/O-4 is 7 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have received counseling regarding his promotion prior to being transferred to the Retired Reserve and promoted to MAJ/O-4 has been carefully considered and found to have merit.
2.  By regulation, TPU officers selected for promotion should be transferred to the IRR in order to accept promotion if they are not filling an authorized position in the higher grade or unless they agree to a delay in promotion.  In this case, the applicant was notified of his selection for promotion on 26 May 1994, and was 
eligible to be promoted effective 31 March 1993 based on his MYIG.  As a result, absent any evidence that he was offered the opportunity to transfer to the IRR to accept promotion or that he voluntarily agreed to delay his promotion, it would be appropriate to correct his record to show he was transferred to the IRR on 
29 January 1995 (the day after his Statement of Retirement Points indicates he stopped participating with his TPU), and that he was promoted to MAJ/O-4 effective that same date with a date of rank of 31 March 1993.

3.  Further, his record should be corrected to show he was transferred into the Retired Reserve as a MAJ/O-4 on 30 June 1995, and that any service he has performed in a retiree recall status was performed as a major/0-4.  It would also be appropriate to provide the applicant all active duty back pay and allowances due as a result of his serving as a MAJ/O-4 vice a CPT/O-3 while in a retiree recall status.

BOARD VOTE:

___X____  ____X___  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  showing he was transferred to the IRR on 29 January 1995, promoted to MAJ/O-4 effective that same date with a date of rank of 31 May 1993; 

   b.  showing he was transferred to the Retired Reserve, in the rank/grade MAJ/O-4 on 30 June 1995;

   c.  showing he performed his retired recall service as a MAJ/O-4; and 


   d.  providing him all back pay and allowances due for his retiree recall service as a MAJ/O-4.



      ___________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)                                         AR20100011785



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ABCMR Record of Proceedings (cont)                                         AR20100011785



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