MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  8 August 2000
	DOCKET NUMBER:  AR1998013529

	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. Carl W. S. Chun		Director	
	Ms. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Ronald E. Blakely		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:  Promotion to colonel with an effective date of 18 July 1995.  He further requests he be returned to an active status; his retired pay and grade be adjusted to reflect the grade of colonel and his retirement date be adjusted from 31 December 1997 to a date no earlier than 31 August 1998.

APPLICANT STATES:  He was recommended for promotion by the 1997 Army Standby Advisory Board (STAB) and had his records been corrected in 1995, he would have been promoted.  He also states, in effect, a position vacancy for colonel was available for his promotion at the time.

COUNSEL CONTENDS: Counsel supports the contentions of the applicant, but furnishes no evidence beyond that of record.

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

He was appointed in the Reserve as a second lieutenant effective 22 July 1968 and entered on active duty the same day.  He was promoted to first lieutenant effective 27 June 1970.

He was released from active duty on 28 June 1970 and transferred to the USAR Control Group.  He was promoted to captain effective 21 July 1974 and major effective 20 July 1981.  He was promoted to lieutenant colonel effective 14 November 1988, with a date of rank of 19 July 1988.  His promotion eligibility date (PED) for colonel was 18 July 1993.

While on an Active Guard/Reserve (AGR) program tour, he was considered and not selected for promotion to colonel by the 1992 through 1995 Reserve Components Selection Boards.  A review of his files revealed that he had a basis for consideration by a STAB under 1993, 1994 and 1995 criteria.

He was considered and nonselected for promotion to colonel under 1993 and 1994 criteria by STAB’s.  His PED was adjusted accordingly.

On 18 December 1996, he was notified he would complete 20 years of Active Federal Service (AFS) in November 1997 and that he must be separated or request length of service retirement.  

On 27 July 1997, he voluntarily requested retirement.  He was retired in the rank of lieutenant colonel effective 31 December 1997.

He was recommended for promotion to colonel under 1995 criteria by the STAB, which convened on 29 October 1997.  On 27 July 1998, he was notified of the STAB selection for colonel under 1995 criteria.

The Chief, Promotion and Notifications Branch, Office of Promotion, PERSCOM, expressed the opinion that the applicant was considered for promotion to colonel by the 1992 through 1995 boards and not recommended.  A review of his board consideration files revealed that he had a basis for consideration by a special selection board under the 1993, 1994 and 1995 criteria years.  Although the special selection boards under 1993 and 1994 criteria did not select him, he was recommended for promotion under the 1995 criteria.  Information available indicated that he voluntarily retired on 1 January 1998.  Under normal circumstances their office would revoke the retirement and promote the officer if he was involuntarily retired.  However, since he voluntarily retired, their office could not revoke his retirement and he would not be promoted.  Based on the above information, it was recommended the application be denied.

The opinion was forwarded to the applicant for his acknowledgment/rebuttal on 8 February 1999.  In his rebuttal, dated 22 February 1999, the applicant stated that the Office of Promotions overlooked some pertinent facts when he signed his voluntary retirement papers.  Since he had reached his mandatory removal date (MRD) he chose to retire as opposed to surrendering his commission.  He further stated that every AGR officer on the 1995 board had been promoted to colonel and had he been promoted, there would have been a commensurate adjustment to his MRD which would have allowed him 5 years of service in the grade of colonel, 30 years of commissioned service, or age 55 whichever is longer.

The Director, Full Time Support Management Directorate, Army Reserve, advised the Board that not all of the promotable lieutenant colonels were placed in USAR AGR colonel positions and promoted to colonel while serving on USAR AGR active duty.  

The opinion was forwarded to the applicant for his acknowledgment/rebuttal on 13 December 1999.  He did not respond.

Current separation policy provides for involuntary separation of Reserve officers upon completion of 20 years of AFS.  It also provided at the time completion of 3 years of satisfactory service in the highest grade for length of service for retirement in that higher grade.

Current Reserve promotion policy provides that for promotion qualification purposes, those selected must occupy a higher position vacancy or transfer to the Reserve Control Group to accept promotion, or they may decline promotion for a specified period of time for qualification purposes.

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.  In view of the circumstances in this case, the applicant is not entitled to promotion to colonel effective 18 July 1995, restoration to active status and adjustment of his retired grade and pay.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  His contentions have been noted; however, he is not entitled to promotion to colonel.  He did not occupy the higher position, and it can not be presumed that a higher position vacancy was or would have been available to him for promotion purposes.

3.  The applicant was properly separated on 31 December 1997.  As a Reserve officer he is not and was not permitted to remain on active duty beyond 20 years of AFS.  While he voluntarily requested length of service retirement with an immediate retired pay annuity, he was pending an involuntary separation because of completion of 20 years of AFS.  It appears this was the reasonable and prudent thing to do at the time.

4.  It is noted here that contrary to the applicant’s contentions that with promotion he would have remained on active duty beyond December 1997, his separation upon completion of the 20 years of AFS was mandated, with or without the promotion.

5.  It is also noted that while the PERSCOM official’s opinion stated that his office could revoke the retirement and promote the applicant if the retirement was involuntary, his office did not have the authority and could not have directed the promotion effective in 1995.

6.  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 this requirement.

7.  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

__sk___  __ja____  ___rb___  DENY APPLICATION

		       Carl W. S. Chun
	                                        Director, Army Board for Correction
	                                                      of Military Records

INDEX

CASE ID	AR1999013329	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000808	
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.		
2.		
3.		
4.		
5.		
6.