PROCEEDINGS

	IN THE CASE OF:

	BOARD DATE:            2 March 2000      
	DOCKET NUMBER:   AR2000038692

	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.  

	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Edwin S. Castle		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Ms. Debra Williams		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, in effect, that his records be corrected to reflect that he was promoted to the grade of captain prior to his release from active duty in 1997.  He notes, in effect, that he was returned to active duty under a FY99 Limited Call to Active Duty Appointments for Captains Program only to discover that his original promotion to captain was not valid because he separated from active duty prior to the effective date of his promotion.

3.  Information available to the Board indicates the applicant was commissioned as a USAR second lieutenant on 14 August 1993 as a result of completion of degree requirements received as part of an ROTC scholarship program at Sam Houston State University.  He entered active duty on 14 August 1993.  He was promoted to the grade of first lieutenant in 1995.

4.  On 14 August 1997 the U.S. Army Total Army Personnel Command published orders announcing that the applicant would be promoted to the grade of captain effective 1 September 1997.  (Those orders were revoked on 28 April 1999.)  However, on 13 August 1997 the applicant was voluntarily released from active duty under the provisions of Army Regulation 600-8-24, paragraph 2-2 upon completion of his required service.  He was released in the grade of first lieutenant.

5.  In April 1999 the applicant returned to active duty under the FY99 Limited Call to Active Duty Appointments for Captains Program.  Orders returning him to active duty indicate he was returned to active duty in the grade of captain. The applicant has continued to serve, and receive pay in the grade of captain, since he returned to active duty.

6.  Army Regulation 600-8-29 states that an officer who is on a promotion list and is removed from the active duty list (ADL) prior to the effective date of promotion shall not be promoted from the ADL promotion list.  Additionally, a subsequent return to the ADL does not warrant a return to promotion list status held prior to release from active duty.

7.  Army Regulation 350-100 states, in pertinent part, that recipients of ROTC scholarships incur a 4-year active duty service obligation and 4 years of inactive service.  It also notes that no additional service obligation is incurred upon promotion to the grade of captain unless the individual is being retired.

8.  Army Regulation 630-5, which establishes the policies and provisions for the Army leave program notes that excess leave may be granted in emergency or unusual circumstances.  Excess leave is generally limited too not more than 60 days.  All periods of excess leave are without pay and allowances, no leave accrues to soldiers during periods of excess leave and there is no entitlement to physical disability retired pay should the soldier incur a physical disability while in an excess leave status.
9.  Paragraph 10104, Department of Defense Pay Manual states that authorized or unauthorized absence while a member is in a commissioned or warrant officer status is counted as creditable service.

10.  The FY99 Limited Call to Active Duty Appointments for Captains Program allowed qualified officers who separated from the Army on honorable terms the opportunity to return to active duty in order to alleviate a critical Army shortage of captains and majors.  In addition to several other requirements, the primary eligibility requirement for participation in the program was a date of rank of captain of 2 October 1994 or later.  

11.  Army Regulation 15-185, provides that an application for correction of military records, associated documents and the decision pertaining thereto will normally be filed in the restricted portion and individual’s Official Military Personnel File (OMPF).  In those case where such action would nullify the relief provided the documents will be returned to the Board for permanent filing.

CONCLUSIONS:

1.  The applicant had been duly selected for promotion to the grade of captain before departing active duty.  The evidence clearly indicates that orders announcing the applicant’s promotion to the grade of captain were published prior to his separation from active duty in August 1997.  However, because he was not on active duty on the effective date of the promotion (1 September 1997) he was released from active duty in the grade of first lieutenant.

2.  While it is unclear how he was able to return to active duty under the FY99 Limited Call to Active Duty Appointments for Captains Program the fact remains that the applicant was returned to active duty in the grade of captain and has served in good faith in that capacity since April 1999.  It would be unfair, at this point to deny the applicant’s retention in the grade of captain or penalize him for administrative oversights which were not within his realm of control.

3.  The applicant relied upon the Army’s representation to him that he was a captain.  Based on that representation, he made a major change in his life by leaving civilian life to re-enter active duty.  Under the circumstances, the Army is bound equitably to honor its representation.

4.  Only a short period of time existed between the date the applicant first left active duty as a first lieutenant and his scheduled promotion date to captain.

5.  To that end, the Board concludes it would be in the interest of justice to void his 13 August 1997 separation from active duty, place him in an excess leave 

status from 13 August 1997 through 1 September 1997, which would permit him to be promoted to captain, and then release him from active duty effective 
2 September 1997.

6.  Correcting the applicant’s records in this manner would permit him to be promoted to captain effective 1 September 1997 and serve to validate his return to active duty as a captain in April 1999 under the FY99 Limited Call to Active Duty Appointments for Captains Program.   The correction does not give the applicant an unfair advantage over his counterparts who were returned to active duty under the same program which was designed to off-set the Army’s critical shortage of captains.

7.  Additionally, the 28 April 1999 order revoking the 14 August 1997 order announcing his promotion to captain should be rescinded.

8.  Because there is no evidence the applicant’s OMPF currently contains a restricted portion the Board contends that creation of a restricted fiche by the filing of this action in the OMPF may nullify the relief provided by this Board’s actions and as such the documents will be returned to the Board for permanent filing.

9.  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 showing that the action separating the individual concerned from active duty on 13 August 1997 is void and of no force or effect;

b.	by placing the applicant in an excess leave status effective 
13 August 1997;

c.	by promoting the applicant to the grade of captain effective 
1 September 1997 as provided for in the 14 August 1997 promotion orders;

d.  by showing that he was released from active duty in the grade of captain on 2 September 1997; 

e.  by rescinding the orders which revoked the 14 August 1997 promotion order; and

f.  that in accordance with paragraph 21e, Army Regulation 15-185, following completion of the administrative corrections directed herein, the proceedings of the Board and all documents related to this appeal be returned to this Board for permanent filing.

BOARD VOTE:  

___esc__  ___kan__  ___dw___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Edwin S. Castle___
			Chairperson

INDEX

CASE ID	AR2000037692	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000302	
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.	110.00	
2.		
3.		
4.		
5.		
6.