MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           17 February 1999                   
	DOCKET NUMBER:   AR1998012429

	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. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Charles H. Loundermon		Chairperson	
	Mr. Fred N. Eichorn		Member	
	Mr. John Saputo		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:  In effect, the applicant requests that his record be changed to show that he had 20 years of active service for retirement purposes.  He requests that his rank be changed [prior to his transfer to the Retired Reserve] to show that he was promoted to lieutenant colonel, effective in November 1992.  He requests that the record of all disciplinary actions by The Judge Advocate General be excised from his official files.  

APPLICANT STATES:  That he left active duty because of coercion from superiors to projected whistleblower disclosures.  He was denied promotion because of projected whistleblower disclosures and was subject to disciplinary reprisals because of these disclosures.

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

The applicant enlisted in the Army for three years on 28 November 1966, served in Vietnam, and attained the rank of Specialist Five, pay grade E-5.  He was released from active duty on 30 August 1969 and transferred to the Army Reserve.  He had 2 years, 9 months, and 3 days of service.  A retirement point statement shows that he was in a Reserve troop program unit from 31 August 1972 until his discharge from the Reserve on 27 November 1972.

The applicant’s DA Form 2-1 Personnel Qualification Record shows that he enlisted in the National Guard on 30 August 1978.  He was discharged on         30 July 1979 because of his acceptance of a direct appointment in the Oregon Army National Guard as a Captain in the Judge Advocate General Corps.

The applicant’s record shows that he completed Command and General Staff College, and numerous Judge Advocate General courses and schools.  He was promoted to Major on 18 November 1985.

Orders contained in his record show that he was ordered to active duty for three years in an Active Guard/Reserve (AGR) status under title 32 USC with a reporting date to Headquarters STARC ORARNG of 2 April 1985.  He continued on active duty in this status until 1994.

A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he entered active duty on 2 April 1984 and was released from active duty on 31 January 1994.  He had 9 years, 10 months of active service, and 2 years, 9 months, and 3 days of prior active service.  In addition, he had 8 years, 9 months, and 29 days of prior inactive service.  His awards included the Meritorious Service Medal and the Army Commendation Medal.  That form shows that he was released from active duty early at his request.

Subsequent to his release from active duty he was assigned to a unit of the ORARNG 41st Infantry Brigade in Portland, Oregon.
A DA Form 268, Report to Suspend Favorable Personnel Actions (“flagging action”), shows that his records were “flagged” on 1 October 1994 because of adverse action.  No other reason is given.      

In late 1995 the applicant received his “20 year letter”, notifying him that he had completed the required years of service for retired pay at age 60.

The applicant was discharged from the Army National Guard on                            
1 September 1995 and transferred to the Retired Reserve.

A 19 January 1996 retirement points history statement indicates that the applicant had 20 years of creditable service for retired pay at age 60.  His total active duty points, however, indicate a little over 13 years of active duty service.

A review of the applicant’s twelve officer evaluation reports from December 1979 through March 1991 revealed that the applicant’s raters considered him to have always exceed requirements and to promote ahead of contemporaries  in the performance and potential evaluation sections of those reports.  He did receive “2’s” in the block, “maintains appropriate level of physical fitness” on four of these reports, and on one report he received a “3” in that block  because he failed the physical training test.  Except on one occasion, his senior raters placed him in the second from the top block for potential , and he was above the center of mass on three of these reports.

The report from 1 April 1991 through 31 March 1992 indicates that he received three “2’s” in the performance evaluation of that report, and his rater indicated that he usually exceeded requirements and to promote him with his contemporaries.  His senior rater placed him in the third from the top block for potential, below the center of mass. 

The last two reports the applicant received were both referred reports, with his rater on one stating that he met requirements and do not promote, and his senior rater placing him in the fourth block from the top, below center of mass; and his rater on the other stating that he often failed requirements, and do not promote; his intermediate rater stating that his performance was marginal and he lacked poor judgment; and his senior rater placing him in the 7th block from top, below center of mass.

Title 10 USC 3911 provides for the voluntary retirement of commissioned officers after completion of 20 years active Federal service, 10 years of which have been active duty service as a commissioned officer.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1. The applicant clearly did not have 20 years of active federal commissioned service upon his transfer to the Retired Reserve in September 1995, nor has he provided evidence that he should have been granted credit for 20 years of active federal service.

2.  Nor has the applicant provided any evidence or any argument that he should have been promoted to lieutenant colonel, in 1992 or any time thereafter.  His record plainly shows his rank as Major at the time of his transfer to the Retired Reserve. 

3.  The applicant’s record does show two referred evaluation reports, and he was “flagged” in October 1994 for some adverse action.  Nonetheless the applicant has not shown to this Board that he was denied promotion because of any whistleblower disclosures or the subject of disciplinary reprisals because of disclosures.  He has not provided any information or evidence of  any disciplinary action against himself, or any files containing any such action.

4.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

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

___chl__  __fne___  _js_______  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999012429	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990217	
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. 131.00		
2. 134.02		
3. 136.00		
4.		
5.		
6.