PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           30 November 2000                   
	DOCKET NUMBER:   AR2000039064

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Celia L. Adolphi 		Member	
	Mr. Thomas Lanyi		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 his mandatory removal date (MRD) be extended so that he can complete the minimum of three years in the grade of colonel for retirement purposes.  

3.  The applicant states that his promotion to colonel by a standby advisory board was not confirmed by the Senate until October 1999 and he was not notified of his promotion until January 2000.  His promotion letter was not issued until February 2000.  

4.  The applicant’s military records show that he was a Reserve officer assigned to the 7th Battalion, 95th Division (Institutional Training), a Reserve unit located in Oklahoma City.  A 28 February 1997 chronological statement of retirement points shows that the applicant had 27 years of qualifying service for retired pay at age 60 as of 16 January 1997.  That statement also shows his retirement year ending date (RYE) as 16 January.  It shows that he had in excess of 60 total points (combinations of membership points, inactive duty points, extension course points, and active duty points) for each of his retirement years, beginning on      17 January 1970.  The lowest points earned for any retirement year was 61; the highest (while in an active Reserve status), 91; with most of the entries on the statement showing that he earned points ranging from the mid 70’s to the high 80’s.

5.  The applicant was assigned to the Retired Reserve in the grade of lieutenant colonel effective 16 February 1998, his MRD, based on completion of 28 years of commissioned service.

6.  On 3 January 2000 the applicant was notified that a standby advisory board convened on 8 October 1998, using the criteria established for the 1997 mandatory board, and had recommended him for promotion to colonel.  On        10 February 2000 the Total Army Personnel Command at St. Louis notified him that he was promoted to colonel effective and with a date of rank of                      2 March 1998.  

7.  Information obtained from the Total Army Personnel Command revealed that the President had approved the results of the original 1997 mandatory promotion board on 16 January 1998, that the list was released on 19 February 1998, and the Senate confirmed the list on 2 March 1998.

8.  Information obtained from the Office of the Chief of the Army Reserve revealed that a selection list, once approved by the President is then deemed a promotion list, and that an officer who is on a promotion list should have a MRD based on his promotable grade.

9.  The Reserve Officer Personnel Management Action mandates that officers in the grade of lieutenant colonel be removed from an active status the first day of the month after the month completing 28 years of commissioned service; officers in the grade of colonel (or promotable lieutenant colonel), the first day of the month after the month completing 30 years of commissioned service.

10.  Title 10 U.S.C., Section 1370, states in effect. that in order to be credited with satisfactory service an officer above major must have served satisfactorily in that grade as a reserve commissioned officer in an active status, or in a retired status on active duty, for not less than three years.

11.  That section also states in pertinent part, that a person who has completed at least six months of satisfactory service in grade and is transferred from an active status or discharged as a reserve commissioned officer solely due to the requirements of a nondiscretionary provision of law requiring that transfer or discharge due to the person’s age or years of service may be credited with satisfactory service in the grade in which serving at the time of such transfer or discharge, notwithstanding failure of the person to complete three years of service in that grade. 

12.  Army Regulation 135-155 provides policy and procedures for the selection and promotion of Army Reserve officers.  Paragraph 4-9 states:  “A USAR officer who is mandatorily considered and then selected will be transferred from the unit to the IRR (Individual Ready Reserve), and promoted.  Promotion will be not later than 90 days after the receipt of promotion notification or the normal established promotion eligibility date, whichever is later.  This is unless the officer fills a vacancy in the unit in a higher grade …”  

13.  Army Regulation 135-180 implements statutory authorities governing the granting of retired pay to soldiers and former Reserve component soldiers.  Paragraph 2-8 states in pertinent part, that a Reservist must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service. Only soldiers assigned to an active status in a Reserve component or individuals in active Federal service are authorized to earn retirement point credits.

14.  Army Regulation 140-185 prescribes the types of training and activities for which retirement points are authorized.  Paragraph 1-4 states in pertinent part that soldiers in an active Reserve status will have a retirement year from 1 July through 30 June annually unless it is changed because of a break in service.   Chapter 2 provides criteria for awarding of retirement points, and states in pertinent part that the maximum points which may be credited for inactive duty training (IDT) during a retirement year is 60 points.  Fifteen points is awarded each year for membership in an active status.  Retirement points may also be earned by Reserve soldiers for active duty for training (ADT), annual training (AT), completion of Army extension courses, etc.

CONCLUSIONS:

1.  Based on the results of the original 1997 mandatory promotion board, which the President approved on 16 January 1998, the applicant’s MRD would have been 16 January 2000, the date that he completed 30 years of commissioned service.  His transfer to the Retired Reserve or his discharge date would have been 1 February 2000, as mandated by law.  Consequently, his transfer to the Retired Reserve on 16 February 1998 is null and void and of no force or effect.

2.  Whether or not a position vacancy existed in his unit in the grade of colonel on 2 March 1998, his promotion date, is undeterminable, and to conclude otherwise would be pure speculation.  Absent information to the contrary, it would be more appropriate to believe that the applicant would have been transferred to the IRR and promoted.       

3.  The Senate did not confirm the results of the original promotion list until          2 March 1998, which is the applicant’s promotion date.  More than likely, he would have been transferred to the IRR sometime after that date and then promoted.  Nonetheless, and because the notification of his selection by a standby advisory board did not occur until 3 January 2000, and in all fairness to the applicant, it is deemed that his transfer date should be 2 March 1998. 

4.  The applicant’s chronological statement of retirement points show a history of qualifying years of service for retirement, with the lowest number of points earned for any one retirement year as 61.  He earned well in excess of the required       50 points in each retirement year, an indication of his dedication to the Army Reserve.  Consequently, it is believed that he would have continued his service   and would have earned a minimum of 50 retirement points each retirement year while assigned to the IRR.  Therefore, the applicant’s record should reflect that he served satisfactorily in the grade of colonel from the time of his transfer to the IRR on 2 March 1998 until his MRD on 1 February 2000. 

5.   The applicant’s MRD of 1 February 2000 is mandated by law.  Consequently, his request for extension of his MRD beyond that date in order for him to have three years in the grade of colonel for retirement purposes cannot be accommodated.  Nor is it necessary.  He may be credited with satisfactory service in the grade in which serving at the time of his transfer to the Retired Reserve, notwithstanding his failure to complete three years of service in that grade. 
  
6.  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.  voiding the 4 March 1998 order reassigning him to the Retired Reserve effective on 16 February 1998.  That order is null and void and of no force or effect;  

     b.  transferring him to the Army Reserve Control Group (Reinforcement) in the grade of Colonel on 2 March 1998;

     c.  awarding the applicant 50 retirement points for his retirement year beginning on 17 January 1998 and ending on 16 January 1999; and for his retirement year beginning on 17 January 1999 and ending on 16 January 2000; and

     d.  transferring the applicant to the Army Reserve Control Group (Retired) on his MRD of 1 February 2000.  

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

BOARD VOTE:  

___jns__  __cla____  ___tl____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000039064	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001130	
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.  230	131.00	
2.	113.01	
3.	135.00	
4.	136.01	
5.		
6.