MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            27 April 2000
	DOCKET NUMBER:   AR2000035590

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Ms. Elizabeth Buchanon		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Mr. Kenneth L. Wright		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 retirement date be corrected and that he be considered for promotion to lieutenant colonel (LTC) by a stand-by advisory board (STAB) using the criteria used by the 1974 Reserve LTC selection board.  In addition, that he receive credit for three tours of active duty that he performed between June 1973 and June 1974. 

APPLICANT STATES:  In effect, that in the summer of 1974, after receiving no word on what the zone of consideration would be for the 1974 LTC selection board, he made several calls to the Army Reserve Personnel Command (ARPERSCOM) to determine the status.  An individual there advised him that he was not considered by the 1974 selection board because it was thought that he was retired.  This individual told the applicant as this was not the case he may be eligible to have his records referred to a STAB.  However, he claims he found out in 1975 that due to an administrative error his records were not referred to the STAB because he had transferred to the Retired Reserve on 19 November 1974, which he believes was well after his records should have been reviewed by the STAB.

 He also indicates that on 15 March 1977, he received a chronological record of his military service that contained errors and actually showed that he had been transferred to the Retired Reserve on 23 March 1973, as opposed to the actual date of 19 November 1974 and he was not credited with three active duty tours totaling 44 days that he performed subsequent to the 1973 date.  On 11 May 1977, he was advised by ARPERSCOM that he could not be credited with service performed subsequent to his mandatory retirement date; however, in his opinion, he should receive credit because they used an erroneous retirement date at the time. 

He summarized his case in a letter to ARPERSCOM on 7 February 1989, in which, he requested remedial action.  He contends he received a reply to this request on 16 March 1989, in which, it was opined that he had a basis for consideration by a STAB and advised him to request STAB consideration given his records were erroneously omitted from consideration by the 1974 Reserve LTC selection board.  Finally, he responded to this letter by preparing a packet, which included a completed Department of Defense (DD) Form 149 (application for correction of military records) and submitting it to the President of the STAB.

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

He served on active duty as both an enlisted soldier and a warrant officer between 14 October 1941 and 13 April 1947.  He was appointed a 2nd lieutenant in the USAR on 9 April 1949 and remained in an active Reserve status until being transferred to the Retired Reserve, in the rank and pay grade of major/O-4 (MAJ) on 19 November 1974, which was subsequent to his mandatory removal date from the USAR of 21 February 1973.  
The record includes a DD Form 149, dated 29 March 1989, submitted by the applicant, in which he requested that he be considered for promotion to LTC under the criteria used by the 1974 Reserve LTC selection board.  In support of his application he provided a letter from ARPERSCOM, dated 16 March 1989, in which it was opined that he had a basis for consideration by a STAB and that he should request STAB consideration through this Board (Army Board for Correction of Military Records (ABCMR) because his records were erroneously omitted from consideration by the 1974 Reserve LTC selection board.  

On 10 May 1989, in reply to his inquiry regarding the computation of his retirement points, the applicant was provided a letter from the ARPERSCOM Chief of Retired Activities.  Accompanying this letter was a corrected copy of the applicant’s Department of the Army Reserve Personnel (DARP) Form 249-3, showing that as of February 1973, he had completed 21 years, 3 months, and 
10 days of qualifying military service for retirement.  

This letter also informed the applicant that his retention in an active USAR status until 19 November 1974, to obtain the necessary qualifying years of service for retirement, was erroneous.  The reason his retention was invalid was because he had already completed the necessary 20 years of qualifying service for retirement during the retirement year ending on 31 August 1971.  The record further revealed that he had reached his maximum years of service allowed by law on 21 February 1973, which was the date his removal from service was mandatory.  Therefore, any retirement points he earned subsequent to this mandatory removal date were not creditable for retirement purposes. 

On 26 May 1989, the director of this Board requested that the commander of ARPERSCOM review the applicant’s records to determine his eligibility for the STAB consideration.  He further requested that if it were determined that the applicant was eligible, his records be submitted to the appropriate STAB.  In addition, it was requested that if it were determined that the applicant was not eligible for a STAB that the case be returned to the Board with an advisory opinion outlining why he was not entitled to the promotion reconsideration requested. 

On 6 July 1989, an advisory opinion was provided from the Promotion and Notification Branch, Office of Reserve Promotions, ARPERSCOM, in regard to the applicant’s request of this Board.  It was opined that the applicant was not eligible for consideration for a STAB.  They indicated that a review of the applicant’s record revealed that he was considered but not selected by the 
1973 LTC selection board after he had  been erroneously retained beyond his mandatory removal date.  

This ARPERSCOM advisory opinion also indicated that any officer erroneously held beyond a mandatory removal date is not eligible for promotion consideration and based on this the applicant should have not been considered by the selection board in 1973 and was not entitled to STAB consideration using either the 1973 or the 1974 criteria.  They also enclosed a copy of the letter from the Chief of Retired Activities to the applicant, dated 10 May 1989, in which the applicant was informed of what his correct retirement points were at the time and advised that his retention beyond his mandatory removal date had been an erroneous action.  

On 9 May 1990, the applicant’s case was reviewed by a panel of this Board who, after a careful and through examination and evaluation of the available evidence and records, denied his request for promotion reconsideration.  The decisional document published by this Board indicated that the applicant’s request did not contain sufficient justification to conclude it was in the interest of justice to grant the relief requested or to excuse his failure to file within the time prescribed by law.  

On 20 August 1990, the applicant was informed of this Board’s decision and provided a copy of the decisional document by the Chief of the Personnel Services Division, ARPERSCOM.  The applicant was advised that it was only after the Board concluded that no error or injustice existed, and that his application should be denied, that that it considered the statute of limitations.  He was further informed that had the Board found his case had merit it would have excused his failure to timely file and that the Board had never rejected an application simply because of a failure to apply within the time prescribed. 

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 Board noted the contentions of the applicant and determined that they include no new evidence, argument, or issues that would justify a change to the original 1990 decision of this Board to deny his request for promotion reconsideration.  

2.  The evidence of record clearly shows that the applicant had completed the service necessary to qualify for retirement on his mandatory removal date of 
21 February 1973 and that his retention in an active USAR status until November 1974 was erroneous.  Therefore, the Board concluded that his not being considered for promotion in 1974 and the exclusion of retirement service credit for service performed subsequent to this mandatory removal date resulted in no injustice to him.  

3.  Notwithstanding his representation in this application that his not being considered for promotion by the 1974 was an injustice, the Board found that the applicant was fully advised by ARPERSCOM officials of the reason his record was not considered by the 1974 LTC selection board.  In addition, he was provided the decisional document issued by this Board in 1990 with a full and thorough explanation of the basis for that decision by ARPERSCOM officials.  Therefore, the Board found no merit in this current application and concluded that there was neither a sufficient propriety or equity basis which would warrant granting the requested relief.  

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 the aforementioned 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

___klw __  ___tap __  __cab___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR2000035590	
SUFFIX		
RECON	1990/05/22	
DATE BOARDED	2000/04/27	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	N/A 	
DISCHARGE REASON	N/A	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 1043	131.1100 	
2. 303	129.0100	
3.		
4.		
5.		
6.