PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            2 March 2000      
	DOCKET NUMBER:   AR2000037696

	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 her records be corrected to reflect that she was promoted to the grade of captain prior to her release from active duty in 1998.  She notes, in effect, that she was returned to active duty under a FY99 Limited Call to Active Duty Appointments for Captains Program only to discover that her original promotion to captain was not valid because she separated from active duty prior to the effective date of her promotion.

3.  Information available to the Board indicates the applicant was commissioned as a USAR second lieutenant on 14 May 1994 as a result of completion of degree requirements received as part of an ROTC scholarship program at St. Bonaventure University in New York.  She entered active duty on 23 May 1994.  She was promoted to the grade of first lieutenant on 25 May 1996.

4.  On 14 May 1998 the U.S. Army Total Army Personnel Command published orders announcing that the applicant would be promoted to the grade of captain effective 1 June 1998.  (There is no evidence in available records which indicates the promotion orders were ever revoked or rescinded.)  However, on 24 May 1998 the applicant was voluntarily released from active duty under the provisions of Army Regulation 600-8-24, paragraph 2-5.  She was released in the grade of first lieutenant.

5.  In November 1999 the applicant returned to active duty under the FY99 Limited Call to Active Duty Appointments for Captains Program.  Orders returning her to active duty indicate she 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 she 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 600-8-24, paragraph 2-3 provides, in part that if eligible an officer may request release from active duty (REFRAD) whenever such action is considered appropriate.  To be eligible for REFRAD under this section an officer must have completed the current period of service required by law or the minimum period required by the program that placed the officer on active duty as a commissioned or warrant officer and fulfilled any additional service requirements based on such things as advanced schooling, etc.

8.  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.

9.  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.

10.  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.

11.  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.  

12.  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 her separation from active duty in May 1998.  However, because she was not on active duty on the effective date of the promotion (1 June 1998) she was released from active duty in the grade of first lieutenant.

2.  While it is unclear how she 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 November 1999.  It would be unfair, at this point to deny the applicant’s retention in the grade of captain or penalize her for administrative oversights which were not within her realm of control.
3.  The applicant relied upon the Army’s representation to her that she was a captain.  Based on that representation, she made a major change in her 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 her scheduled promotion date to captain.

5.  To that end, the Board concludes it would be in the interest of justice to void her 24 May 1998 separation from active duty, place her in an excess leave status from 24 May 1998 through 1 June 1998, which would permit her to be promoted to captain, and then release her from active duty effective 2 June 1998.

6.  Correcting the applicant’s records in this manner would permit her to be promoted to captain effective 1 June 1998 and serve to validate her return to active duty as a captain in November 1999 under the FY99 Limited Call to Active Duty Appointments for Captains Program.   The correction does not give the applicant an unfair advantage over her 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, while the Board did not see any evidence that the applicant’s 
14 May 1998 order announcing her promotion to captain was ever revoked or rescinded, in the event that such an order does exist the revocation order should be rescinded.

8.  Because the applicant’s OMPF does not currently contain 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 24 May 1998 is void and of no force or effect;

b.  by placing the applicant in an excess leave status effective 24 May 1998;

c.  by promoting the applicant to the grade of captain effective 1 June 1998 as provided for in the 14 May 1998 promotion orders;

d.  by showing that she was released from active duty in the grade of captain on 2 June 1998; 

e.	by rescinding any orders which may have revoked/rescinded the 
14 May 1998 promotion order if such an order exists; 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	AR2000037696	
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         1.310	110.00	
2.		
3.		
4.		
5.		
6.