IN THE CASE OF:	  

		BOARD DATE:	  22 June 2010

		DOCKET NUMBER:  AR20100016411 


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).


CONSIDERATION OF ADDITIONAL EVIDENCE:

14.  On or about 3 May 2010, the Office of The Judge Advocate General (OTJAG) requested additional information in regard to the decision of the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100008793, dated 9 March 2010.  OTJAG needed to know what date of rank the Board intended the applicant to have, as she was not assigned to a colonel's position at the time she would have been promoted had she been selected for promotion by the 2000 promotion board.

15.  The applicant was born on 19 July 1947, appointed a commissioned officer on 31 December 1968, and promoted to lieutenant colonel on 29 December 1987.

16.  As a lieutenant colonel, her mandatory removal date (MRD) would have been 31 December 1996 (28 years of active Federal commissioned service (AFCS)).  However, she had been granted at least one MRD extension.  Her last extension gave her an MRD of 29 January 2001.

17.  Information obtained from the U.S. Army Human Resources Command,     St. Louis (USAHRC-STL) revealed that, as a colonel, the applicant's MRD would have been 31 December 1998 (30 years of AFCS).  

18.  The applicant was transferred to the Retired Reserve on 29 January 2001.

19.  On 17 June 2008, the ABCMR corrected the applicant's records by submitting them to a Special Selection Board (SSB) for promotion consideration for colonel under the 1998, 1999, and 2000 criteria.  However, the Board failed to recommend what should happen to the applicant if she were selected for promotion to colonel.  Without a clearer directive from the Board, as she no longer had an active status in 2008, by law she could not be promoted.

20.  On 9 March 2010, the ABCMR further corrected the applicant's records by adding to the 17 June 2008 recommendation the guidance, "That if she is selected for promotion her records be further corrected by promoting her to COL, assigning the appropriate date of rank, and paid any associated back pay and allowances…"  However, the recommendation again failed to address all the possible situations.

21.  The applicant had been in a troop program unit.  Therefore, if she were selected for promotion by one of the SSBs, she would be required to be in a colonel's position before she could be promoted.  The available evidence indicates that she had not been assigned to a colonel's position.  The ABCMR's 17 June 2008 recommendation additionally should have read, "That if she is selected…promote her to COL if otherwise eligible…." 

22.  Title 10, U.S. Code, section 1370(d)(3)(A), states that, in order to be credited with satisfactory service (for retirement) in an officer grade above major, a Reserve officer must have served satisfactorily in that grade in an active status for not less than 3 years.

23.  Title 10, U.S. Code, section 1370(d)(3)(B)(i), states a Reserve officer who has completed at least six months of satisfactory service in grade may be credited with satisfactory service in the grade in which serving at the time of transfer out of an active status, notwithstanding failure of the officer to complete  3 years of service in that grade, if that officer is transferred from an active status solely due to the requirements of a nondiscretionary provision of law requiring that transfer due to the officer's age or years of service.

24.  Title 10, U.S. Code, section 14507(b), states a Reserve officer in the grade of COL and who is not on a list of officers recommended for promotion to the next higher grade shall be removed from the Reserve Active Status List on the first day of the month after the month in which the officer completes 30 years of commissioned service.

25.  Information obtained from USAHRC-STL revealed that the 2000 COL Reserve Components Selection Board results were released on 4 January 2001.



ADDITIONAL DISCUSSION AND CONCLUSIONS:

7.  At the time of the decision of the ABCMR in Docket Number AR20100008793, dated 9 March 2010, it was the intent of the ABCMR to make the applicant's record as administratively correct as it should properly have been at the time.

8.  The ABCMR made errors (by omission) in both its 17 June 2008 and 9 March 2010 case recommendations.  

9.  At this point in time, whether the applicant is selected for promotion by an SSB under either the 1998, 1999, or 2000 criteria, it is the intent of the Board to show that she was eligible for promotion to colonel (by showing she had been assigned to a colonel's position).  

10.  As a colonel, the applicant's MRD would have been 31 December 1998.  She was actually transferred to the Retired Reserve on 29 January 2001.  

11.  The release date of the 2000 promotion board was 4 January 2001.

12.  If the applicant is selected for promotion under either the 1998 or the 1999 criteria, she could have been transferred to the Retired Reserve in the rank of colonel on 29 January 2001 (as she would have been required to be transferred from an active status solely due to the requirements of a nondiscretionary provision of law due to years of service and as she would have completed at least six months of satisfactory service as a colonel by that date). 

13.  If the applicant is selected for promotion under the 2000 criteria, whose release date (and, therefore, the earliest date her promotion could be effective) was 4 January 2001, her records would need to be corrected to show she received a further 6-month extension to her MRD in order for her to be eligible to retire as a colonel.  It appears that such an additional correction would be equitable, given the circumstances of this case.

BOARD VOTE:

___X____  ___X____  ___X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

4.  The Board determined that the evidence presented was sufficient to warrant amendment of the decision of the ABCMR set forth in Docket Number 20100008793, dated 9 March 2010, to amend the Board recommendation in that case to read:

	3.  The Board determined that the evidence presented was sufficient to warrant amendment of the decision of the ABCMR set forth in Docket Number AR20080001962, dated 17 June 2008, to add in paragraph 1 of the BOARD RECOMMENDATION: 

		a.  that if she is selected for promotion her records be further corrected by showing she met all the eligibility criteria for promotion (i.e., being assigned to a colonel's position) effective the date of the release of the applicable promotion selection board, promoting her to colonel with the appropriate date of rank, and paying to her any associated back pay and allowances;

		b.  that if she is selected for promotion by either the 1998 or the 1999 board, that her records be further corrected by showing she was transferred to the Retired Reserve in the rank of colonel under the provisions of Title 10, U.S. Code, section 1370(d)(3)(B)(i); 

		c.  that if she is selected for promotion by the 2000 board, that her records be further corrected by showing she was promoted to colonel effective 4 January 2001 and granted another MRD extension sufficient to allow her to be transferred to the Retired Reserve in the rank of colonel under the provisions of Title 10, U.S. Code, section 1370(d)(3)(B)(i); 

		d.  that if she is not selected for promotion, she be notified accordingly.  



      ___ _   ___XXX_  ___ ___
               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)                                         AR20100016411





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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ABCMR Supplemental Record of Proceedings (cont)                 AR20100016411



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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