MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:  22 June 2000
	DOCKET NUMBER:   AR1999016968

	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
Ms. Stephanie Thompkins		Director
Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Arthur A. Omartian		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, that his previous Standby Reserve constructive service be amended to show non-creditable service for pay, promotion or retirement, and promotion to colonel based on time in grade.

APPLICANT STATES:  In effect, that had it not been for his second non-selection based on material error and subsequent reinstatement in the grade of captain, he would have possessed the necessary time to be reviewed for promotion to colonel.  He was not properly considered for promotion to colonel.  He contends Departmental Officials conspired against him and caused his nonconsideration for promotion to colonel.

COUNSEL CONTENDS:  That the applicant’s military career and post service accomplishments have all been in keeping with an exceptionally high standard and worthy of promotion to the rank of Colonel.

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

He was appointed in the Reserve as a second lieutenant effective 19 September 1954, with prior military service.  He was promoted to first lieutenant effective 25 June 1956.

He was considered and nonselected for promotion to captain by the 1962 and 1963 Reserve Components Selection Boards (RCSB’s).

Based on his two nonselections he was discharged from the USAR effective 21 November 1963.

On 24 January 1964, the applicant appealed his discharge from the USAR and in 1968, The Adjutant General indicated that the applicant was educationally qualified for promotion to captain at the time of his second consideration.

A Standby Advisory Board convened on 19 December 1968 and expressed the opinion that the applicant would have been selected for promotion to captain if all facts had been correctly submitted to the May 1963 selection board.

On 29 January 1969, the Army Board for Correction of Military Records recommended the applicant’s records be corrected to show that the 1963 selection board which considered him for promotion found him qualified and recommended him for promotion to captain, USAR; that he was promoted to captain effective 24 June 1963; that his discharge from the USAR on 21 November 1963 is null and void and of no force or effect; that on 21 November 1963 he was transferred to the Inactive Status List of the Standby Reserve in the grade of captain; and on the date the Secretary of the Army directs correction of his military records as recommended, the applicant be transferred to the Active Reserve in the grade of captain.
He was promoted to major effective 15 March 1974 and lieutenant colonel effective 15 September 1979.  His promotion eligibility date (PED) for colonel was in 1984.

He was selected for retention under the provisions of Army Regulation 140-10, chapter 9, effective 17 March 1980.

He received a Notification of Eligibility for Retired Pay at Age 60 letter dated 14 April 1980.

On 7 November 1981, he applied to the ABCMR for adjustment of his mandatory removal date (MRD) from 18 October 1982 to 6 December 1985, his 53rd birthday.

On 14 March 1984, the ABCMR denied his request stating that its action in the applicant’s 1969 case, and that the Board was aware that in placing him in the Inactive Reserve during the period 21 November 1963 to 15 April 1969, he would be credited for basic pay purposes only for that period, but considered that the relief granted was reasonable under the overall circumstances in his case.

He was transferred to the USAR Control Group (Retired Reserve) for length of service effective 19 October 1982.

He was placed on the Retired List effective 6 December 1992 in the rank of lieutenant colonel.

Promotion policy at the time required 5 years of time in grade for mandatory promotion to colonel and 3 years for unit vacancy promotion.

The Chief, Army Reserve, expressed the opinion that when the applicant’s request for the 5½ years he was placed in the Standby Reserve be amended to read “is not eligible for pay or promotion and does not accrue credit for years of service” is not adequately documented and his review indicates there is insufficient documentation in the appeal to substantiate the claim.  A complete review of his records revealed that in 1969, the applicant’s discharge from the USAR was voided effective 21 November 1963 and he was credited for the Standby Reserve for 5½ years.  The applicant also inquired about serving 3 years time in grade as a lieutenant colonel thereby making him eligible for a unit position vacancy promotion to colonel; however, he does not state why he was not offered the chance to apply for such a position.  Another concern of the applicant was he served 5 years time in grade as a lieutenant colonel to be 

considered to promotion to colonel.  In fact, the law does not require a mandatory promotion board for promotion to colonel.  In accordance with the 1981 Army Regulation 135-155, paragraph 2-7.1, selection boards will convene at the discretion of the Secretary of the Army to consider United States Army Reserve officers, in all branches, for the promotion to colonel. 

The opinion was forwarded to the applicant for his acknowledgment/rebuttal on 17 December 1999.  In his rebuttal the applicant stated that though he did state that his request would have made him eligible for promotion consideration to colonel, he did not request an actual promotion to colonel.  He further stated that his placement in the Standby Reserve for 5½ years had a tremendous impact on his opportunity for promotion to colonel, because as a result of having 5½ years deducted from his career, he never had the opportunity to serve in grade long enough to be considered for promotion to colonel.  He also stated that he had difficulties in obtaining a colonel position in a Division and as he was approaching his MRD, the Division was being reorganized and he was not offered the chance to apply for a colonel position.

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 an amendment of his constructive Standby Reserve status as requested, or to promotion to colonel based on time in grade.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The Board notes his contentions that he was mandatorily retired in the grade of lieutenant colonel, having served 3 years, 1 month and 3 days, and he did not possess the necessary time in grade to be reviewed for promotion consideration to colonel.  However, there is no error or injustice in his record.  The 1969 action and the relief granted were considered reasonable under the overall circumstances in the applicant’s case.  It is noted that in 1984 the Board advised the applicant that he had accepted the relief granted in his 1969 case and did not question the actions taken for a period in excess of 12 years, and that his contentions on missed benefits could be claimed by any military member, had they or the Department made different choices or had their career development been handled differently.  As a result of the previous Board action he was promoted to captain, major and lieutenant colonel.

3.  The Board further notes that the applicant has also not shown entitlement to promotion to colonel.  Pertinent regulation and law provides that mandatory promotion boards are not required for promotion to colonel, and that current 
policy at the time prescribed 5 years of time in grade for mandatory consideration.  He was not selected for an early promotion based on a unit vacancy.  

4.  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.

5.  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

__ls____  ___ra___  __ao____  DENY APPLICATION

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

INDEX

CASE ID	AR1999016968	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000622	
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.		
3.		
4.		
5.		
6.