PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            12 December 2000                  
	DOCKET NUMBER:   AR2000036248

	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. Carl W. S. Chun		Director	
	Ms. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Mr. Harry B. Oberg		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 amended his initial request, and is now requesting reinstatement of his commissioned status; differential pay and allowances between his enlisted and officer ranks; to be issued a 20 year retirement letter reflecting his commissioned rank; placement in the Retired Reserve in his commissioned status; and approval to keep all pay and allowances earned as an enlisted soldier, as well as pay earned as a Department of the Army civilian for the period 24 May 1998 through 20 May 1999.  

3.  The applicant states that when he received notification from the U.S. Army Reserve Personnel Command (AR-PERSCOM) of his second nonselection for promotion to Lieutenant Colonel and his notice of non-retention, he was told his records showed he had 16 qualifying years of service, when in fact, he had       18 years and should have been allowed to remain in an active status until he completed 20 qualifying years for retirement.  

4.  The applicant’s military records show that he accepted an appointment as a second lieutenant in the U.S. Army Reserve on 5 June 1973, and was ordered to active duty for training on 26 November 1973.  

5.  In December 1995, the applicant was notified that he had been twice considered for promotion to the higher grade and not selected, therefore his transition from an active status was mandatory.  

6.  On 3 April 1996, the applicant was notified that he would be discharged on   28 April 1996, unless he had an additional service obligation, had been credited with 18 or more years of service and was eligible for retention to complete        20 years, or was eligible for and requested transfer to the Retired Reserve.  He was given the option to request a transfer to the Retired Reserve.   

7.  On 29 April 1996, the applicant resigned his commission and enlisted in the Army National Guard (ARNG), in the pay grade of E-5.

8.  On 13 May 1998, he was honorably discharged from the ARNG, and enlisted in the U.S. Army Reserve on 14 May 1998.

9.  On 24 May 1998, he accepted a civilian career-conditional appointment with the Department of the Army as a USAR Unit Administrator effective 28 May 1998.   

10.  During July 1999, the applicant submitted a request to AR-PERSCOM for a recalculation and correction of his retirement points.

11.  On 30 July 1999, AR-PERSCOM provided the applicant with a chronological statement of retirement points which showed that as of 30 July 1999 he had a total of 22 years of qualifying service for retirement.  This statement also revealed that the applicant had 18 years of qualifying service as of 4 June 1995. 

12.  On 11 August 1999, the applicant was notified, in the rank of Staff Sergeant, that he had completed the required years of qualifying reserve service and was eligible for retired pay on application at age 60 (Twenty Year Letter).

13.  The applicant is currently a member of the Individual Ready Reserve (IRR) in the rank of Staff Sergeant, and continues to participate.  

14.  In the processing of this case, an Advisory Opinion was obtained from the U.S. Army Reserve Personnel Command, stating that if the additional years of qualifying service had been credited to the applicant at the time of his second non-selection for promotion he would have been eligible to be retained to complete 20 years of qualifying service or until 23 February 1999, whichever came first, at which time he would have been removed from an active status and transferred to the Retired Reserve.  The applicant’s 20 years of qualifying service was completed on 4 June 1997.

15.  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).

16.  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).  Paragraph 7-12 of that
regulation provides an exception to the above rule, and states in pertinent part, that officers having 18 or 19 years of qualifying Federal service for retired pay will not be removed without their consent, officers with 18 years will be authorized    3 years to complete 2 qualifying years, and those officers with 19 years will be authorized 2 years to complete 1 qualifying year in order to complete 20 years of qualifying service. 

CONCLUSIONS:

1.  The applicant had over 18 years of qualifying service for retired pay at the time he was notified of his second nonselection for promotion, and should have been retained in an active status until 4 June 1997, the day he would have completed 20 qualifying years of service, and then transferred to the Retired Reserve.

2.  The applicant resigned his commission and enlisted in the Reserve in an attempt to continue earning retirement points.  Had his years of qualifying service been computed correctly he would have been allowed to remain in an active status until 4 June 1997.  Therefore, in the interest of justice the applicant should receive differential pay between the rank of Staff Sergeant and that of a Major, from the time the applicant resigned his commission to the date he would have completed 20 qualifying years of service (29 April 1996 to 4 June 1997).  

3.  In the interest of justice the applicant should be allowed to keep all pay and allowance earned as an enlisted soldier from 5 June 1997, as well as all pay received as a Department of the Army civilian for the period 24 May 1998 through 20 May 1999.  

4.  The applicant should be issued a new ARPERCEN Form Letter-819 (Twenty Year Letter) reflecting his correct commissioned rank of Major.

5.  The applicant should be allowed to keep all retirement points earned as an enlisted soldier as an exception to policy, and defacto any monies received.  

6.  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 reinstating the applicant to the rank of Major for the period 29 April 1996 through 4 June 1997, with differential pay between the rank of Major and that of an E-6, 

	b.  by transferring the applicant to the Retired Reserve effective 5 June 1997, and

c.  by allowing the applicant to retain all retirement points earned as an enlisted soldier as an exception to policy, up to the date of final action by this Board; and 

d.  by granting defacto status for all pay and allowances received as an enlisted soldier after 4 June 1997.

BOARD VOTE:  

__fne___  ___lem__  __hbo___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000036248	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001212	
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.  128.00		
2.  129.00		
3.  135.00		
4.		
5.		
6.