MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:            3 June 1999                  
	DOCKET NUMBER:   AR1998006330

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. David E. Weightman		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Mr. Thomas B. Redfern, III		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  Early retirement.

APPLICANT STATES:  He lost his position due to a retention board decision based on over-strength in his grade, and that he had 15 good years for retirement at the time, but he couldn’t get his assignment officers or two congressman to assist him in this matter.  He submits statements from others, transfer orders, and a chronological statement of retirement points, dated 7 June 1993, in support of his application.

He submitted a letter of rebuttal, dated 15 February 1999, to the opinion rendered in his case.  He stated his status at the time of his transfer from the active Reserve was in the Selective Service, as an IMA (Individual Mobilization Augmentee), in the Selective Reserve, and eligible for retirement at 
15 years/transition benefits.

In the rebuttal, he now also requests promotion to lieutenant colonel.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant was born on 9 May 1955 and will reach age 60 on 9 May 2015.

The applicant was commissioned in the Reserve from ROTC effective 15 May 1977.  He served on active duty from 13 November 1977 to 14 July 1985, and he attained the rank of captain effective 22 June 1981.  He was released from active duty and transferred to the Reserve Control Group (Reinforcement) based on failure to meet minimum standards of retention.  He subsequently served in Reserve units.

Effective 15 April 1989 he was transferred to the Selective Service [System] (SSS) USAR Augmentation.

He was promoted to major effective 14 May 1989.

On 12 December 1991 he was notified that based on realignment of the SSS’s Reserve Officer Force and a reduction of major positions, he was considered but not selected for retention in the SSS.  He was given the option to drill for points only and advised that if he did he may then remain in the SSS until 29 February 1993 or until completion of 20 good years of service, whichever came first.  He remained in the SSS until 1993.

Effective 18 March 1993 he was released from the SSS attachment and returned to the Reserve Control Group.  At this time he had more than 15 years of qualifying service.

He was issued a chronological statement of retirement points, dated 7 June 1993, showing he completed 15 years of qualifying service for retired pay at age 60 as of 14 May 1992.

He was issued another statement, dated 6 August 1993, showing he did not participate during this last year, and continuing to show completion of 15 years as of 14 May 1993.

He was qualified and eligible to remain in the active Reserve, and to request assignment and other active Reserve participation.

He did not request separation under the Selective Reserve (SELRES) Transition Program, the early qualification for retired pay at age 60 provisions, and he did not request transfer to the Retired Reserve.

He was considered but not selected for promotion to lieutenant colonel by the 1995 and 1996 Reserve Components Selection Boards (RCSB’s).  His records were complete and without material error when reviewed for promotion.  The reasons for non-selection were not divulged by the RCSB’s, except that it was not for a lack of the required military education.

His officer evaluation report (OER) history for captain and major shows he was rated below average by his raters and rated below center of mass on several reports by his senior raters.

Public laws and Department of Defense Directives have mandated transition assistance for separated military personnel.  The policy dictates that transition assistance programs prepare separating service members and their families with the skills, tools, and self-confidence necessary to ensure successful reentry into the Nation’s civilian work force.  The National Defense Authorization Act for Fiscal Year 1993 (Public Law 102-484, October 23, 1992) provides that Selected Reservists (SELRES) who are involuntarily separated during the force draw-down period receive transition assistance and are treated fairly and equitably for their service.  The program was implemented by the DOD on 1 March 1993.  The period of separations concerning these provisions is from 23 October 1992 to 
30 September 1995, later changed to end on 30 September 1999.  With certain exceptions, separations during this period are considered involuntary.

Subject personnel have priority for affiliation within the Selected Reserve.

Dissemination of these provisions was required to inform members of the Reserve Components of their rights and benefits.  Dissemination was made by Departmental messages, and widely published in official, quasi-official and unofficial publications, and in official communications.

Temporary authority was provided for special separation pay of 1 – 5 years prior to age 60 for members with 20 or more years of qualified service as of 1 October 1991.

Separation pay was authorized for members under these provisions who had at least 6 years but less than 15 years of service.

Early qualification for retired pay at age 60 was authorized for enlisted personnel, with certain exceptions, completing at least 15 and less than 20 qualified years, as of 1 October 1991, or after that date and before 1 October 1999, contingent upon the member’s transfer to the Retired Reserve.  Members who elect this option under these provisions with transfer to the Retired Reserve shall be provided the notification of eligibility for retired pay at age 60, with attendant benefits.  Application for transfer to the Retired Reserve under this authority must be made not later than one year following the date on which a member is eligible to apply for such transfer.

On 8 July 1993 the Acting Assistant Secretary of the Army (M&RA) announced, among other things, that company and field grade officers were entitled to early retirement if otherwise qualified.

On 18 August 1993 a priority electrical message was sent to all pertinent military offices and units outlining the Selected Reserve Transition Assistance program based on draw-down.

The applicant was eligible to apply for early retirement and transfer to the Retired Reserve on 18 August 1993, after the date of his release from the SSS and return to the Control Group and essentially after he was separated from his Selected Reserve status, occurring on 18 March 1993.  18 August 1993 is also the date details of the program were disseminated to all concerned, including inclusion of commissioned officers for the early retirement benefit.

Pertinent regulations define Selected Reserve members as officers, warrant officers and enlisted soldiers who are members of the Army National Guard of the United States, those assigned to troop program units of the USAR, those serving on active duty in an Active Guard/Reserve status, and Individual Mobilization Augmentees.

It is also defined as part of the Ready Reserve of each Reserve Component consisting of units and individuals who participate actively in paid training periods and serve on paid active duty for training each year.

Ready Reserve is defined as units and individual reservists liable for active duty.

Retired Reserve status includes active duty call-up liability.
Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that promotion reconsideration by a special selection board (SSB) may only be based on erroneous non-consideration or material error which existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's non-selection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required military schooling.

The Program Manager for Transitions and Separations, Army Reserve Personnel Command, expressed the opinion (COPY ATTACHED) that the applicant was not a member of the Selected Reserve, he was separated through board action and not through the elimination of his position, and he is not eligible for 15 year retirement or transition benefits.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The applicant is not entitled to early retirement under the provisions of the Selected Reserve Transition Assistance program.  He has waited much too long, well beyond the required date to apply for this benefit.  He apparently elected to remain active for possible return to a more active Reserve status, and for promotion to lieutenant colonel.

2.  Notwithstanding his contentions that he couldn’t get his assignment officers or two congressmen to assist him in this matter, he has not shown any valid reason for not completing more good years for retirement, or for not complying for the early retirement benefit.  He had priority for affiliation within the Selected Reserve at the time.  Upon his removal from the SSS on 18 March 1993, he was immediately notified of his retirement qualification status.  On 7 June and 
6 August 1993 he received a statement of his retirement years.  He knew or should have known he had to request the early retirement benefit and apply for transfer to the Retired Reserve within a year of eligibility to get the benefit.

3.  The opinion received in this case appears to be off of the mark.  The applicant is considered by the Board to have been in a Selected Reserve status while drilling and participating for pay and points with the SSS.  For all intents and purposes, he was initially eligible for the transition program, even though serving in the SSS which is not necessarily in the Selected Reserve, based on being a drilling reservist, a requirement/definition of Selected Reserve members.  Also, his removal was not based on an Army required board action, it was based on a competitive non-selection for a reduced number of available positions caused by the draw-down.

4.  The applicant is also not entitled to promotion to lieutenant colonel.  He was fairly considered by two RCSB’s.  His records were complete and without material error and he was simply not selected.  He has not shown otherwise.  The Board notes here that his records contain discriminators against promotion selection.  He had several below average OER’s reviewed by the two promotion boards.  It is further noted that, as shown in this case, promotion is not automatic based on qualifications alone, but includes a competitive process of an RCSB determining an individual's potential and ability to perform at the higher grade.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-10061/AR1998006330	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.	136	
2.	131	
3.		
4.		
5.		
6.