PROCEEDINGS

	IN THE CASE OF:   

	BOARD DATE:            22 July 1999                  
	DOCKET NUMBER:   AR1999021432

	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. Calvin M. Fowler		Chairperson	
	Mr. Thomas N. Kuhn		Member	
	Mr. Raymond J. Wagner		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 that all of his military records be corrected to show he was promoted to captain effective 1 October 1995 and that he was separated from active duty on 21 August 1996 in that rank.

3.  The applicant states, in effect, that he served and was paid as a captain while on active duty, but that the promotion was taken away at separation and he became erroneously indebted.  He also states this is giving him a bad credit reference, among other problems.

4.  The applicant’s military records show he had prior enlisted Army service, and that he was appointed as a Reserve second lieutenant and entered active duty effective 14 September 1991.  He was promoted to first lieutenant on 
15 September 1993.  He was recommended for promotion to captain by a Departmental promotion board with a promotion eligibility date of 1 October 1995.

5.  On 8 September 1995, Total Army Personnel Command (PERSCOM) orders number 251-036 were published and included promotion of the applicant to captain effective 1 October 1995.

6.  On 18 September 1995 he received a memorandum of reprimand (MOR) for driving while intoxicated.  It was placed in his Official Military Personnel File (OMPF).

7.  On 27 October 1995 he received nonjudicial punishment under Article 15, UCMJ, for the same offense.  His punishment was admonishment.

8.  The applicant’s promotion status was then scheduled for review by a PERSCOM promotion review board based on his misconduct.

9.  In his appeal concerning the Article 15 punishment he requested his punishment be lessened and placed in his local file, not in his OMPF.  He acknowledged his pending promotion to captain was postponed.

10.  He received pay for the rank of captain effective 1 October 1995 without interruption.

11.  The applicant requested and received release from active duty.  He was honorably separated effective 21 August 1996 for miscellaneous/general reasons.  He was separated in the grade of first lieutenant and transferred to the Reserve Control Group (Reinf).

12.  On 9 October 1996 the applicant was advised by memorandum from the PERSCOM that based upon the promotion review board recommendation, the Secretary of the Army has directed that he be retained on the promotion list.  He was also advised that since he was no longer on active duty he may petition the Correction Board for relief, and he was provided materials for this purpose.

13.  Action was subsequently taken against the applicant by the Defense Finance and Accounting Service, Denver Center, to collect an indebtedness to the government in the amount of $18,732.03.  The reason for the indebtedness was not indicated.  The indebtedness was later assigned to a collection agency.

14.  On 30 November 1998 the Chief, Reserve Promotions and Notifications Branch, PERSCOM, provided an opinion in this case.  He recommended the original date of 1 October 1995 for promotion of the applicant to captain be honored, and correction of his DD Form 214 to reflect his release from active duty as a captain with an effective date of 1 October 1995.

15.  On 16 March 1999 the applicant acknowledged the advisory opinion.  He submitted a letter, dated 12 March 1999, from the Treasury Department, notifying him that his Federal income tax return of $3,061.00 was applied to his delinquent debt.

CONCLUSIONS:

1.  The applicant is entitled to correction of his military records to show he was promoted to captain effective 1 October 1995, and that he was separated from active duty on 21 August 1996 in that same rank.  In this case, his records already show his rank as captain, effective 1 October 1995.  The promotion orders were properly published and have not been rescinded or revoked, and otherwise remain in effect.

2.  While the applicant’s promotion to captain should have been delayed at the time, based on his misconduct and action taken to review his case by a promotion review board, it was not delayed.  Promotion orders were previously published and he was paid at the higher rank effective 1 October 1995.  This is the date he would have received the promotion, without the misconduct and promotion review.  He was released, however, in the rank of first lieutenant upon separation, causing indebtedness.  Notwithstanding these circumstances, including his prior knowledge that his promotion to captain was postponed, his records should now show his promotion to captain effective 1 October 1995 as proper, with appropriate pay and allowances, and his separation on 21 August 1996 should show his rank as captain.  His promotion selection was, in effect, confirmed by retaining his name on the promotion list, albeit after his separation.

3.  This is supported by the opinion and recommendation received from a PERSCOM official.

4.  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 enforcing the promotion to captain of the individual concerned, as specified in PERSCOM order number 251-036, dated 8 September 1995, effective 1 October 1995; and

b.  by showing he was separated from active duty and transferred to the Reserve Control Group (Reinf) on 21 August 1996 in the rank of captain.

BOARD VOTE:  

cmf_____  tnk_____  rjw______  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999021432	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	1999 July 22	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.