PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:            3 October 2000                   
	DOCKET NUMBER:   AR2000036679

	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	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Mr. Raymond J. Wagner		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 requests that he be given active duty pay and allowances as a colonel from 7 July 1996 to 4 January 1999, and that he be given active service credit for the same period.

3.  The applicant states that he was removed from active duty in violation of Title 10 USC, §3848, since he was selected for promotion to colonel with an effective date that was prior to his mandatory removal date (MRD) as a lieutenant colonel.

4.  In support of his application, he submits documentation showing he was initially selected for promotion to colonel with a promotion eligibility date of 28 June 1996, but he wasn’t notified of that selection until after his separation from active duty; he submits documentation showing that Congress didn’t approve the June 1996 colonel promotion list until January 1997; he submits documentation showing that the Assistant Secretary of the Army, Manpower and Reserve Affairs (ASA (M&RA)) recognized the problem with the delay in Congress approving the June 1996 colonel promotion board and directed that those lieutenant colonels that were removed from an active status due to maximum years of service be restored to an active status or active duty, as appropriate; he submits another memorandum from the ASA (M&RA) which stated that legal review of the applicant’s case determined that he could not be reduced in rank prior to being restored to active duty, that he must be ordered to active duty in the rank of colonel.  That memorandum also stated that the applicant could petition the Army Board for the Correction of Military Records for back pay but that Board may consider the fact that giving him back pay as a colonel would be giving him an advantage not given to other Active Guard Reserve (AGR) officers since the other officers had to be selected for a position in the grade to which he or she was promoted prior to being promoted; he submits documentation showing that he was offered reinstatement on active duty with a report date of 13 January 1998 but requested that his reinstatement be postponed until 30 July 1998 due to employment conflicts.  At his request, his reporting date was deferred until 4 January 1999.  He also submits documents showing that he requested release from his AGR status effective 15 January 2000 because “[Release from active duty] is required to take assignment to an [brigadier general] position in USAR” and “Date requested is required to coincide with civilian employment.”

The applicant’s military records were not provided to the Board.  However, the documentation provided by the applicant clearly describes the circumstances surrounding his release from and return to active duty in the AGR program.

The applicant is a Reserve officer serving on active duty in the AGR program.  In 1994 he was improperly non-selected for promotion to colonel.  On 1 May 1996 this Board granted him relief and promoted him to the grade of colonel.  Before the announcement of the Board’s decision, he was removed from an active status by reason of having reached his mandatory removal date.

The Senate eventually confirmed the applicant’s selection for promotion and he was promoted to colonel effective 7 July 1996 with a date of rank of 31 May 1995.

To rectify the error in removing him from active service, the ASA (M&RA) offered the applicant the opportunity to return to the AGR program on 16 December 1997 with a reporting date of 13 January 1998.  However, he delayed his return to active duty  apparently because of a civilian job conflict.  He was officially restored to active duty on 4 January 1999.

Army Regulation 140-30, Active Duty in Support of the United States Army Reserve (USAR) and Active Guard Reserve (AGR) Management Program, paragraph 7-1, states that officers in the AGR program may be selected for promotion regardless of his or her current position but will not be promoted until the officer is assigned to a position requiring the higher grade.

Title 10 USC, §3848, then in effect (it was repealed effective 1 October 1996 by the Reserve Officers Personnel Management Act) stated in pertinent part that officers in the rank of first lieutenant through lieutenant colonel will be transferred to the Retired Reserve or discharged 30 days after he or she completes 28 years of service.  However, lieutenant colonels who are selected for promotion to colonel will be retained in an active status.

CONCLUSIONS:

1.  Based on fairness and equity, the applicant should be paid the back pay and allowances and granted active federal service credit as a colonel for the period from his effective date of promotion to colonel – 7 July 1996 – to the date he was ordered reinstated on active duty – 13 January 1998.

2.  Pay and credit for the period until 4 January 1999, as requested by the applicant, would not be appropriate since the delay in his reinstatement from 13 January 1998 to 4 January 1999 was at his own request. 

3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by: 

	a.  showing that the individual concerned is authorized back pay and allowances as a colonel for the period 7 July 1996 to 13 January 1998; and  

	b.  crediting him with active federal service for promotion and retirement points for the same period of time.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

___jns __  ___rtd___  ___rjw __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__________John N. Slone______
		        CHAIRPERSON

INDEX

CASE ID	AR2000036679	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001003	
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.  128.77		
2.		
3.		
4.		
5.		
6.