MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           15  February 2001
	DOCKET NUMBER:   AR2000043113

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Melvin H. Meyer		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
              	       records
	Exhibit B - Military Personnel Records (including
	                  advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that his mandatory retirement date (MRD) be adjusted to reflect his time spent in the Retired Reserve.

APPLICANT STATES:  That he was a member of the Retired Reserve from 
24 July 1994 to 7 May 1997.  He states, in effect, that since service in the Retired Reserve after an individual’s MRD does not count as commissioned service, then his service in the Retired Reserve from 24 July 1994 to 7 May 1997, prior to his MRD, should also not count as commissioned service in his case.  In support of his application he submits a copy of his discharge orders from the United States Army Reserve (USAR), a copy of the order revoking his discharge from the USAR, orders assigning him to the Retired Reserve, a promotion memorandum to lieutenant colonel (LTC), and orders assigning him to the USAR Control Group.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant was born on 7 December 1950 and was commissioned a Reserve second lieutenant effective 27 May 1973.  He served continuously without a break in Reserve service, and his MRD was calculated as 1 June 2001.

He was twice considered and non-selected for promotion to LTC.  His MRD was adjusted to 25 July 1994 and he was separated 25 July 1994 for that reason.  He elected to transfer to the Retired Reserve at that time.

He served in the Retired Reserve from 25 July 1994 to 7 May 1997.  His MRD was not changed based upon this service.

On 18 August 1993 the applicant submitted a request to this Board for a Special Selection Board (SSB) for promotion to LTC.  On 28 February 1996, as a result of the Board’s determination, he was reconsidered and selected for promotion to LTC.  The SSB selected him for promotion and his records were corrected to show he was promoted to LTC.  This Board further directed that his transfer to the Retired Reserve be voided, that he be credited with qualifying service for Reserve Retirement for his respective retirement years from the date of his voided transfer to the Retired Reserve, that an explanation be placed in the applicant’s official military personnel file explaining gaps in his officer evaluation reports from the date of the voided discharge or transfer to the Retired Reserve to the date of his return to active reserve status, and that documents related to his voided non-selections for promotion be removed from his official military personnel file.

In the processing of this case an advisory opinion was obtained from the Retirement and Annuities Branch, US Army Reserve Personnel Command (ARPERSCOM).  It opined that the applicant’s request to have his MRD extended by the amount of time he spent in the Retired Reserve is not authorized.  ARPERSCOM opined that Army Regulation 140-10, chapter 7, paragraph 7-2f(1)(a) states that a LTC is to be removed after 28 years of commissioned service if the officer was under the age of 25 at commissioning.  The applicant was under the age of 25 at the time of his commissioning.

ARPERSCOM opined that Title 10 USC specifies that the time spent in the inactive reserve does not count as service time but all other time is counted.  His time in the Retired Reserve was spent as a commissioned officer and was accountable against his MRD.  ARPERSCOM recommended that the applicant’s request to have his MRD extended by the amount of time he spent in the Retired Reserve be denied.

A copy of the advisory was provided to the applicant for comment.  The applicant responded that his time served in the Retired Reserve prior to his MRD and time served in the Retired Reserve after his MRD should be treated the same.  He contends that the time served in the Retired Reserve was the result of a previous injustice by the Army and the failure to restore those three years would penalize him for what was purely an Army error.

The applicant states that he was twice non-selected for promotion and elected to be transferred to the Retired Reserve to remain a mobilization asset.  He states if he would have elected to be discharged the recommendation of the screening team might have provided him a favorable opinion.  Additionally, he states that he should not be penalized for remaining available to defend his country, to serve the Army for 25 years, and denial of his request continues a previous injustice.

Army Regulation 135-55 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies individuals twice not selected for promotion to LTC will be transferred to the Retired Reserve if they are eligible and request such transfer, or retained in the active Reserve when more than 
18 but less than 20 qualifying years of service have been completed, or discharge.  MRD in these cases is mandated to within 90 days after the selection board submits its results to Departmental Headquarters.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The evidence of record shows that the Board corrected the applicant’s records to show he was promoted to LTC and that his time spent in the Retired Reserve was voided and he was restored credited with qualifying service for that period of time.

2.  The applicant’s MRD was restored to 1 June 2001 and it now requires no further adjustment because his time served in the Retired Reserve was voided and credited as qualifying service.  His MRD date of 1 June 2001 is correct.

3.  He has not shown that the now voided Retired Reserve service prevented career advancement justifying an extension of his MRD.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the above requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__FNE__  __MKP__  __MHM__  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000043113	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010215	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	135.05	
2.		
3.		
4.		
5.		
6.