PROCEEDINGS

	IN THE CASE OF:   

	BOARD DATE:            5 August 1999                  
	DOCKET NUMBER:   AR1998012126

	I certify that hereinafter is recorded the true and complete record of the proceedings 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. Mark D. Manning		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Ernest W. Lutz, Jr.		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests reinstatement to his previous status in the Regular Army.

3.  The applicant states that he elected voluntary retirement after non-selection for promotion to lieutenant colonel, and when it became apparent that the Correction Board would not act on his appeal of a contested officer evaluation report (OER) prior to the early retirement program deadline.  He was forced to elect early retirement at the time effective 31 January 1997.  Had he known of the time involved in this process he would have also requested reinstatement to his previous status upon the subsequent correction of the OER and selection for promotion based upon a special consideration.

4.  The applicant’s military records show that he was appointed in the Reserve effective 17 June 1980 from Michigan State University ROTC, Armor, and he was ordered to active duty effective 29 September 1980.  He attained the rank of major effective 1 August 1992 and was appointed in the Regular Army.  He was subsequently transferred to the Aviation Branch.

5.  He was not selected for lieutenant colonel by the 1996 promotion board.

6.  He appealed a contested OER ending on 29 March 1988 by removal of the senior rater profile.

7.  He applied for retirement under early retirement program provisions, Army Regulation 600-8-24, with more than 15 years of active duty.  His request was approved and he was separated from the Regular Army on 31 January 1997, and placed on the Retired List on 1 February 1997.

8.  His OER appeal was seen by the Correction Board on 17 December 1997, and on 2 January 1998 the Deputy Assistant Secretary (Army Review Boards) directed the relief requested by the applicant.  The record was corrected by removal of the senior rater profile from the contested OER, and promotion reconsideration by a special selection board (SSB) under 1996 promotion criteria.

9.  The record was corrected and the applicant was selected for promotion to lieutenant colonel by an SSB.  He was notified on 9 July 1998 that he had to apply to the Correction Board for appropriate relief.

10.  On 30 June 1998 he was promoted to lieutenant colonel effective 1 June 1997 with a date of rank of the same date.

11.  Reinstatement to his previous active duty status would be effective 
1 February 1997, the date of his previous separation.

12.  Upon reinstatement the applicant will be entitled to pay and allowances, with off-sets.

13.  The Chief, Aviation Assignments Branch, Total Army Personnel Command (PERSCOM) expressed the opinion the applicant is eligible for reinstatement, that his chances for advancement and schooling in the Regular Army would be less than 50-50, but that he fully supported his reinstatement in the Regular Army in the Aviation Branch.

14.  The applicant acknowledged and concurred with the advisory opinion.

CONCLUSIONS:

1.  The Board concludes that based on selection for promotion by the Departmental SSB, the applicant is entitled to reinstatement to his previous active duty status as recommended by the Chief of the Aviation Assignments Branch, effective 1 February 1997, and with promotion to lieutenant colonel effective 1 June 1997.

2.  The Board notes that the applicant has received retired pay since his retirement status, effective 1 February 1997, which must be off-set from the back pay he will receive based upon reinstatement.

3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected:

a.  by voiding the 1 February 1997 separation and retirement of the individual concerned;

b.  by reinstating him to his previous Regular Army status as of 1 February 1997, within 120 days from the date this action is approved, with entitlement to back pay and allowances, and with collection of appropriate off-sets;

c.  by promoting him to the grade of lieutenant colonel in his Regular Army status with an appropriate date of rank and effective date, with entitlement to back pay and allowances;

d.  by showing that his release from active duty was, and is, void and without force or effect; and that any and all travel performed in compliance with orders for his relief from active duty, and incident thereto, was performed as an authorized permanent change of station or temporary duty with entitlement to all monetary allowances for the applicant and dependents, as appropriate; and

e.  by placing an adequate explanation in his Official Military Personnel File to show that any gap in his officer evaluation reports from the date of his last report to the date of his return to an active duty status was not caused by any fault on his part and to ensure that he should not be prejudiced thereby in any future personnel actions.

BOARD VOTE:  

________  ________  ________  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

mdm____  aao_____  ewl _____  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1998012126	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	1999 August 5	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	131.00	
3.		
4.		
5.		
6.