MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  25 May 2000
	DOCKET NUMBER:   AR2000036085

	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. Elzey J. Arledge		Chairperson	
	Mr. Kenneth L. Wright		Member	
	Mr. Ernest W. Lutz		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:  Promotion to major or release from his Reserve commission.

APPLICANT STATES:  That prior to leaving active duty, he was considered for promotion to major.  He was advised he would receive promotion orders from PERSCOM (US Army Personnel Command) and based on this information he volunteered for a Reserve commission.  He was later advised that the promotion orders were not valid, contrary to what he was previously advised.  He also states, in effect, that if he is not promoted to major, he wants his Reserve appointment revoked.  He submits copies of MILPER, “FY99 Major, Army Competitive Category Promotion Zones of Consideration and “Promotion Numbers for January 2000” messages, emails dated 1 and 2 March 1999, page 38 of the 1999 Major Promotion Board results, and promotion orders dated 
13 December 1999 in support of his request.

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

He was appointed in the Reserve as a second lieutenant effective 13 May 1988.  He entered on active duty effective 22 July 1989, and was subsequently appointed in the Regular Army.  He was promoted to first lieutenant effective 
17 May 1991 and to captain effective 1 August 1993.

He was considered and recommended for promotion by the 1999 Regular Army major promotion board, which convened on 20 April 1999. 

He was honorably discharged from the Regular Army based on miscellaneous/general reasons effective 1 August 1999, in the rank of captain.

He was appointed in the Reserve as a captain effective 2 August 1999.  The appointment was not based on the condition of promotion.  His promotion eligibility date, or maximum time in grade (MTIG), in the Reserve for major is 
31 July 2000.

His name was transferred to the Reserve promotion list status upon his separation from active duty, with a MTIG of 31 July 2000 based upon completion of 7 years in the lower grade.

On 13 December 1999, the Total Army Personnel Command issued orders promoting the applicant to major in the Regular Army effective 1 January 2000, with a same date of rank.  The orders were erroneous and later retracted.

As of the date of his request, the applicant was assigned to a Reserve Troop Program Unit (TPU).

Title 10, USC, Section 14317(c), specifies that an active duty officer who is on the active-duty list and is on a promotion list as the result of selection for promotion by a selection board convened and who before being promoted is removed from active duty and appointed as a Reserve officer shall be placed on an appropriate Reserve promotion list.

Army Regulation 624-100/600-8-29 prescribes the policies and procedures for promotion of officers on active duty.  This regulation specifies that promotion of officers under this authority is applicable only to officers on active duty.

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation provides for promotion in a TPU based on a position vacancy, or promotion to the higher grade on the respective MTIG date based on selection by a Reserve Components Selection Board or transfer to a Reserve promotion list, and transfer to the Reserve Control Group.  It also prescribes 7 years of MTIG for promotion to major.

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.  In view of the circumstances in this case, the applicant is not entitled to promotion to major as he has requested.  He is also not entitled to a vacation or revocation of his Reserve appointment.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  His contentions that he was considered for promotion to major prior to leaving active duty and never received promotion orders has been noted by the board.  However, he was separated from active duty prior to the effective date of the promotion.  The promotion orders were not valid and were properly retracted.

3.  The Board further notes that based on the applicant’s MTIG for major for Reserve purposes, he may be promoted based upon a position vacancy; or, without a position vacancy, he may be promoted to major on his MTIG based upon transfer to the Reserve Control Group.

4.  The Board also notes his appointment in the Reserve on 2 August 1999 was without condition of promotion, and may not be vacated or revoked on that basis.

5.  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.

6.  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

__EA__  ___KW___  __EL____  DENY APPLICATION

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

INDEX

CASE ID	AR200036085	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000525	
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.	131.00	
2.		
3.		
4.		
5.		
6.