MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            13 June 2000
	DOCKET NUMBER:   AR2000035860

	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	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Ms. Elizabeth Buchanon		Chairperson	
	Mr. John H. Kern		Member	
	Ms. Barbara J. Ellis		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 he be promoted to the rank of 
Colonel/O-6, with a date of rank (DOR) of 5 March 2000, and that he be recalled to active duty as an Active Guard/Reserve (AGR) officer in that grade.  

APPLICANT STATES:  In effect, that he was voluntarily released from active military service, in the rank of lieutenant colonel/O-5 (LTC), and placed on the retired list in that rank on 1 August 1999.  At that time he had completed a total of 20 years, 7 months, and 26 days of active military service, his DOR to LTC was 
3 March 1995, and his mandatory retirement date was in March of 2003.  He was subsequently selected for promotion to COL by the Fiscal Year 1999 (FY99) Reserve Component (RC) Army Medical Department (AMEDD) COL Promotion Board.  This promotion list was published on 24 November 1999.  He claims his selection by this board was unexpected, given his assumption that his name would have been removed from consideration based on his retirement.  This selection is what prompted his request to this Board.  

He goes on to comment that the Secretary of the Army and the Chief, Army Reserve (CAR) have approval authority to extend officers on active duty in an AGR status for 2 year increments upon the request of the officer.  In his case, the last extension on AGR status he submitted was for only 9 months.  This shorter period was requested based on advice he received from the CAR’s office.  He was advised that he should not request the full 2 years and he was encouraged to request the shorter 9 month extension due to an alleged sufficiency of officers in his rank and specialty.  He goes on to indicate that at no time during the extension process did anyone in the CAR’s office inform him that he would continue to remain on the promotion board consideration list.  He finds it ironic that had he requested the normal 2 year extension on AGR status he would have been on active duty when the promotion list was released.  

He advances the following additional factors as reasons for his requesting retirement.  First, in the year leading up to his retirement, his personnel management officer (PMO) and his support staff, on at least three occasions, recalculated his service time, which resulted in three different dates being established as the date he would attain 20 years of active federal service (AFS).  The last recalculation established December 1998 as the time he would attain 
20 years of AFS.  He was transferred to Arlington, Virginia in September 1998, just 3 months prior to reaching the 20 year point.  This resulted in his regrettable decision to disenroll from the Army War College on the advice of his career managers at the office of the CAR.  He now believes this poor advice contributed to his poor career decisions and this situation should be rectified by this Board. 

He concludes that he served the Army for over 20 years and worked hard throughout his career.  He was recognized for his dedication, professionalism, and commitment to excellence.  In addition, to his being selected for promotion to COL and for the War College, he also earned a number of awards and decorations.  He has enclosed a copy of his officer record brief and his expanded statement is also enclosed.  Finally, he comments that he believes his character and fidelity are above reproach and he trusts that this Board will follow the lead of the COL selection board and recognize the quality of his past service and his potential for future service.  He is also hopeful that this Board will allow him to fulfill his potential by approving this action.  

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

On 31 July 1999, the applicant separated from AGR active duty , after having attained sufficient service for retirement.  He was placed on the retired list in the rank of LTC, effective 1 August 1999.  At the time of his retirement he had completed a total of 20 years, 7 months, and 26 days of active military service.

On 7 June 1999, Order Number P-06-010054 was issued by the Army Reserve Personnel Command (ARPERSCOM) codifying the applicant’s retirement.  This order approved the applicant’s release from active duty on 31 July 1999 and placement on the retired list, in the rank of LTC, effective 1 August 1999.  The order also authorized the applicant’s voluntary non-disability retirement, under the provisions of Title 10, United States Code, section 3911 (10 USC 3911), based on his having completed 20 years, 7 months, and 26 days of AFS.  

On 2 July 1999, the FY99 RC AMEDD COL promotion selection board convened to consider eligible RC AMEDD LTCs for promotion.  The board results, which identified the applicant as a promotion selectee, were not released until 
24 November 1999, almost 4 months subsequent to his being placed on the retired list.  

Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes the officer transfers from active duty to the Reserve Component and discharge functions for all officers on active duty for 30 days or more.  It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support officer transfers and discharges.  

Chapter 6 of this regulation applies to the nondisability retirement of active duty list commissioned and warrant officers on active duty to include AGR commissioned and warrant officers who have 20 years or more of AFS.   Paragraph 6-14c provides the guidance for retirement at 20 years of service.  It states, in pertinent part, that an RA or USAR commissioned officer with 20 years AFS may on his or her request and the approval of Secretary of the Army be retired under the provisions of 10 USC 3911. 
Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system.  Paragraph 1-10 (Promotion Eligibility) states, in pertinent part, that under the provisions of 10 USC 577 and 619 officers are not eligible for consideration by a promotion selection board if they have an established separation or retirement date that falls within 90 days after the date on which the board is convened.

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 does empathize with the applicant’s feelings in regard to his perception that he was given poor career advice and that he was deserving of promotion to the rank of colonel based on his record of service and potential for further productive service.  However, while the applicant is to be congratulated for his stellar career, the Board is unable to translate this expressed dissatisfaction with the system into an injustice in this case.  

2.  The Board noted the applicant’s contentions that had he been aware of all the facts he would have made different choices.  However, the evidence of record is clear in establishing that he voluntarily requested withdrawal from the War College and retirement, in the rank of LTC.  The Board found no evidence to suggest that any of these actions were involuntarily or that they were anything other than what they appear to be, voluntary choices made by the applicant.  Therefore, the Board is forced to conclude that his retirement request was a fully voluntary action; thus, this factor provides no basis for relief.

3.  Under the provisions of the applicable regulation, the applicant was ineligible for promotion consideration by the FY99 RC AMEDD COL selection board.  This lack of eligibility was based on his voluntarily request for retirement and the fact that he had an approved established retirement date that was within 90 days of the convening date of the selection board.  Therefore, his selection for promotion, some 4 months subsequent to his retirement for length of service, was obviously the result of an oversight in the administrative process of the selection board and was not the result of his having retained eligibility for promotion. 

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

___jhk___  ___eb___  ___be___  DENY APPLICATION

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

INDEX

CASE ID	AR2000035860	
SUFFIX		
RECON		
DATE BOARDED	2000/06/13	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1999/07/31	
DISCHARGE AUTHORITY	AR 600-8-24	
DISCHARGE REASON	Retirement	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  1023	106.0010	
2.  310	131.0000	
3.		
4.		
5.		
6.