MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:

	BOARD DATE:            9 February 2000                  
	DOCKET NUMBER:   AR1999027297

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Deborah S. Jacobs		Member	
	Ms. Carol Jo Suiter		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 reflect that he was transferred to the Army Control Group (Retired) effective                    3 March 1994 instead of to the Army Control Group (Reinforcement) (Individual Ready Reserve), that West Virginia Adjutant General Order 40-1, dated               7 March 1994, be changed accordingly, that all personnel actions effected by the Army Reserve be revoked, and that his National Guard records of 1 July 1997 reflect his records as they were when he was discharged from the Army National Guard in 1994.

APPLICANT STATES:  That when he resigned in March 1994 he was not counseled on the difference between the Retired Reserve and the Individual Ready Reserve.  He had over 20 qualifying years of service for retired pay at age 60 and should have been allowed into the Retired Reserve.  When he returned to the National Guard in July 1997, his records should have been as he left them in March 1994.  His due process was violated and his rights were not protected.  He was not advised of advantages and disadvantages.

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

The applicant’s application reflects that his present grade and present status is as an E-5 with the Army National Guard.

The applicant was a major with over 20 years of qualifying service for retired pay at age 60, when he was separated from the West Virginia Army National Guard
effective 3 March 1994, per order number 40-1, dated 7 March 1994.  That order also transferred him to the Army Reserve Personnel Center at St. Louis with assignment to the IRR, and indicated that upon termination of federal recognition the applicant becomes a member of the USAR under provisions of Title 10, United States Code 3352(b). 

On 15 December 1995 the applicant was notified by the Total Army Personnel Command that he was passed over for promotion, constituting his first passover for promotion to lieutenant colonel.

On 17 June 1997 the applicant applied for federal recognition as a major in the West Virginia Army National Guard.  His request was approved and he was appointed in the Army National Guard effective 1 July 1997.  

On 22 July 1998 the West Virginia Adjutant General published an order separating the applicant from the Army National Guard effective                           1 November 1997, and transferring him to the Army Reserve Control Group (Retired).  That order indicated that the applicant had received notification of eligibility for retired pay at age 60.

Information obtained from the Total Army Personnel Command Promotion Branch on 20 January 2000 revealed that the applicant was again passed over for promotion to lieutenant colonel by the selection board that adjourned on        25 October 1996.

Army Regulation 135-155 prescribes the policy and procedures used in the selection and promotion of commissioned officers of the Army National Guard and the Army Reserve.  Paragraph 4-29 of that regulation states that an officer whose removal from active Reserve status is required by law for failure to be selected for promotion must be removed within the prescribed time limits.  Those time limits can be extended or suspended only as authorized by law (Army Regulation 140-10, chapter 7).

Chapter 7 of Army Regulation 140-10 pertains to removal of soldiers from an active status.  Paragraph 7-4 states, in effect, that officers who are nonselected for promotion after second consideration will be removed from an active status (discharged or transferred to the Retired Reserve).

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.  There is no evidence of error or injustice in the applicant’s records, nor has the applicant provided any.  It would appear that the applicant is requesting this action in order to have the records of his non-selections for promotion to lieutenant colonel expunged.  

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

3.  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.

4.  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

___cjs___  ___dsj___  ___rvo__  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999027297	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000209	
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.  335	125.00	
2.		
3.		
4.		
5.		
6.