PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            5 April 2001
	DOCKET NUMBER:   AR2000044158

	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. Hubert S. Shaw, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Ms. Celia L. Adolphi		Member	
	Mr. Harry B. Oberg		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 retirement points be increased by 156 and that he receive pay for the inactive duty training (IDT), Active Duty Special Work (ADSW) and annual training (AT) days that were missed because of the Army’s acknowledged error in the 1998 Promotion Board decision.  

3.  The applicant states that his total number of retirement points should be increased by 156 to reflect the decision by the Special Selection Board for his  promotion to colonel effective 1 July 1998.  He contends that as a result of his non-select status, he was required to resign from the Tennessee Army National Guard (ARNG) effective 30 June 1998.  His appeal of the non-select decision was perfected prior to this date, but the results of his subsequent promotion were not completed until 6 April 2000.  He returned to the Tennessee ARNG on 17 April 2000 after being promoted in the Army Reserve to colonel.  He completed IDT in April, May and June as well as AT in June before his mandatory release date of 30 June 2000 (30 years of commissioned service), required his final resignation from the Tennessee ARNG.  But for the original decision by the 1998 Selection Board, he would have served and accumulated retirement points for 21 months.  His first request was for an extension of his mandatory release date, but was told this was not possible.  In support of his application, the applicant submits a letter of explanation dated 
3 July 2000; a supplement to his application with attachments A-Q outlined and described in the supplement.  

4.  The applicant was commissioned a Reserve officer in the Corps of Engineers on 2 June 1970.  He was ordered to active duty for training on 18 June 1972 and was honorably released from active duty and returned to the USAR on 15 September 1972.  He joined the Tennessee ARNG on 19 March 1976.  The applicant was promoted to lieutenant colonel on 10 February 1992 and was tendered a letter of “Notification of Eligibility for Retired Pay at Age 60”, dated 17 September 1995.

5.  The applicant was selected for promotion to colonel by a Reserve Component Selection Board in 1996.  However, the applicant opted to decline the promotion and his name was deleted from the Selection Board. 

6.  The applicant was considered, but not selected, for promotion to colonel by a Reserve Component Selection Board in 1997.  The list of those officers who were selected for promotion to colonel by the 1997 Reserve Component Selection Board was confirmed by the Senate on 2 March 1998. 

7.  The applicant appealed his non-selection based on the fact his promotion file was not complete because an officer evaluation report was not present at the time of review by the promotion board.  While the appeal was still in process, the applicant reached his maximum years of service (28 years) as a lieutenant colonel, was honorably separated from the Army National Guard effective 30 June 1998, and transferred to the USAR Control Group (Retired) with 28 years and 29 days of total service.

8.  On 19 January 2000, the applicant was recommended for promotion under 1997 criteria by the Department of the Army Special Selection Board that convened on 8 October 1998. 

9.  On 31 January 2000 the applicant was transferred from the USAR Control Group (Retired) to the USAR Control Group (Reinforcement) in the rank of lieutenant colonel.  The applicant was notified by the Chief of Promotion and Notifications Branch, Office of Reserve Components Promotions, in a letter dated 6 April 2000, that he was promoted to colonel effective 1 July 1998.  The applicant was restored to an active status in the Tennessee ARNG in the rank of colonel effective 15 April 2000.

10.  On 30 June 2000 the applicant was honorably separated from the Tennessee ARNG and transferred to the USAR Control Group (Retired Reserve) based on completion of maximum years of service (30 years) for officers in the rank of colonel with 30 years and 29 days of total service.

11.  The applicant’s ARNG Retirement Points History Statement prepared on 20 June 2000 shows that the applicant was credited with four points for IDT and seven points for AD and 15 membership points (a total of 26 retirement points) during the retirement year (RY) beginning 2 June 1998 and ending on 1 June 1999.  His Retirement Points History Statement also shows that, during the RY beginning on 2 June 1999 and ending on 1 June 2000, the applicant was credited with eight points for IDT and 15 membership points for a total of 23 retirement points.  The RY beginning on 2 June 2000 and ending on 30 June 2000 with the applicant’s separation from the Tennessee ARNG and transfer to the USAR Control Group (Retired Reserve) shows no retirement points credited. The applicant’s Army National Guard Retirement Points History Statement also shows his service creditable for retired pay was “23/00/00” [23 years, zero months and zero days] and his total points for retired pay as “2042”.

12.  There is no evidence in the available records which shows the applicant completed any ADSW during the period 1 July 1998 to 30 June 2000.  However, the applicant believes that he should receive active duty points for ADSW based on the average points he accumulated during the two RY’s preceding his separation from the Tennessee ARNG on 30 June 1998.

13.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that promotion reconsideration by a standby promotion advisory board may only be based on erroneous nonconsideration or material error which existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's nonselection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.

14.  Title 10 United States Code, Section 14507 states the statutory provision for maximum years of service and provides that an officer in the Reserve grade of lieutenant colonel who is not on a list of officers recommended for promotion to the next higher grade shall be transferred to the Retired Reserve or discharged on the first day of the month after the month in which the officer completes 28 years of commissioned service.

15.  Title 10 United States Code, Section 14507 states the statutory provision for maximum years of service and provides that an officer in the Reserve grade of colonel who is not on a list of officers recommended for promotion to the next higher grade shall be transferred to the Retired Reserve or discharged on the first day of the month after the month in which the officer completes 30 years of commissioned service.

16.  Section 12732 Title 10, United States Code provides for the computation of years of service for retired pay for non-regular service.  Under Subsection (A) one point is credited for each day of active service or fulltime service under sections 316, 502, 503, 504, and 505 of Title 32 while performing annual training duty or while attending a prescribed course of instruction at a service school.  Under Subsection (B) one point is also credited for attendance at a drill or period of equivalent instruction.  Under Subsection (C) 15 points are awarded per year for membership in a Reserve component of an armed force. 

17.  Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) prescribes the types of training and activities for which retirement points are authorized.  Paragraph 2-4 of this regulation governs the criteria for awarding retirement points.  The regulation states the personnel on active duty, active duty for training, initial active duty for training, involuntary active duty for training or annual training are awarded one retirement point for each calendar day served in one of these categories.  The regulation prescribes rules for award of retirement points for participation in inactive duty training and states, under the four hour rule, that one retirement point is awarded for each scheduled four-hour period of inactive duty training at a unit training assembly, rescheduled training, equivalent training, or additional training assemblies.  The regulation also states that a maximum of two retirement points may be awarded per calendar day under the four-hour rule.

18.  Army Regulation 140-185 also provides at Appendices A, B, and C the tables for determining the retirement points to be credited for a qualifying period which is less than a complete retirement year.
19.  Title 32, United States Code, Sections 101 and 502(f) provide for the members of the Army National Guard of the States and territories to be ordered to “Full-time National Guard duty.”  Title 32 defines “Full-time National Guard duty as training or other duty, other than inactive duty, performed by a member of the Army National Guard of the United States in the member’s status as a member of the National Guard of a State or territory. 

20.  Sections 12731 through 12739 of Title 10, United States Code, authorize retired pay for Reserve Component military service.  Under this law, a Reserve soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  After 1 July 1949, a qualifying year is one in which a Reserve soldier earned 50 retirement points or more.  This law further requires that the last 8 years of qualifying service must be in a Reserve Component.

21.  The term “qualifying years”, also known as “good years”, are those years in which members of the Reserve Components earn 50 or more retirement points. Such years count as qualifying years of service for retirement benefits at age 60. There are also provisions in Army regulation for crediting an individual with retirement points and qualifying service for completion of a partial period of Reserve service of less than one retirement year.

CONCLUSIONS:

1.  The applicant was not selected to the rank of colonel by a Reserve Components Selection Board in 1997.  As a result, he was separated from the Tennessee ARNG in the rank of lieutenant colonel on 30 June 1998 based on maximum years of service (28 years) authorized for officers in the rank of lieutenant colonel and transferred to the USAR Control Group (Retired).

2.  Subsequently, Army promotion officials determined that there was a material error (a missing officer evaluation report) in the applicant’s promotion file at the time of his consideration to colonel by the 1997 Reserve Components Selection Board and that, as a result, he was entitled to consideration by a standby selection board. 

3.  The standby selection board recommended the applicant for promotion.  After confirmation, he was restored to the USAR Control Group (Reinforcement) and was promoted to colonel with an effective date of 1 July 1998.

4.  The applicant was reinstated in the Tennessee ARNG, and he was promoted to colonel effective 15 April 2000.

5.  On 30 June 2000, the applicant was separated from the Tennessee ARNG and transferred to the USAR Control Group (Retired Reserve) based on completion of the maximum years of service (30 years) for an officer in the rank of colonel .

6.  The applicant’s ARNG Retirement Points History Statement shows that during the RY beginning on 2 June 1998 and ending on 1 June 1999 he only received 26 retirement points which does not make this a qualifying year for retirement purposes.

7.  The applicant’s ARNG Retirement Points History Statement shows that during the RY beginning on 2 June 1999 and ending on 1 June 2000 he only received 23 retirement points which does not make this a qualifying year for retirement purposes.

8.  The applicant’s ARNG Retirement Points History Statement shows that from the RY beginning on 2 June 2000 and ending on 30 June 2000 he received no retirement points.

9.  As a result of an administrative error in the applicant’s promotion file which resulted in his nonselection, the applicant was denied the opportunity to continue his service in the Tennessee ARNG during the period 1 July 1998 through 15 April 2000.  Records also indicate that, even though his retirement was backdated to 1 July 1998, the applicant’s records show that he lost credit for retirement points and service creditable for retired pay purposes as a result of this nonselection to colonel.

10.  In view of the foregoing, the Board concluded that the applicant would have continued to serve in an active status in the Tennessee ARNG during the period 1 July 1998 to 15 April 2000 but for the flawed promotion selection action which resulted in his transfer to the USAR Control Group (Retired) on 30 June 1998.  As a result, the Board finds, as a matter of equity, that the applicant should receive proper pay, retirement point credit and service creditable for retired pay for the period 1 July 1998 through 15 April 2000 even though the applicant was not in an active status and did not attend drill or annual training during this period.  

11.  Therefore, the Board determined that the applicant is entitled to constructive service credit for pay, retirement points, and service creditable for retired pay for the period 1 July 1998 through 15 April 2000.

12.  Therefore, the applicant’s retirement point history should be corrected to show the applicant earned 48 IDT points, 15 AT points and 15 membership points for a total of 78 retirement points during the RY beginning on 2 June 1998 and ending on 1 June 1999 and that this RY was a “good year” creditable for retired pay. 

13.  Therefore, the applicant’s retirement point history should be corrected to show the applicant earned 48 IDT points, 15 AT points and 15 membership points for a total of 78 retirement points during the RY beginning on 2 June 1999 and ending on 1 June 2000 and that this RY was a “good year” creditable for retired pay. 

14.  Therefore, the applicant’s retirement point history should be corrected, based on the tables at Appendices A, B, and C, to show the applicant was credited with 4 IDT points, 15 AT points and one membership point during the partial RY (29 days) from 2 June 2000 through 30 June 2000 and that this service is a creditable period of service for retired pay.

15.  Based on the paragraphs 10 through 14, the applicant is entitled to correction of his Retirement Points History Statement to show an additional 176 retirement points and an additional two years and 29 days creditable service for retired pay.

16.  Active duty points for ADSW are awarded for active duty service authorized by the Adjutant General of Tennessee under Title 32 based on mission requirements and availability of funds of the State of Tennessee.  Since there was no active duty service performed by the applicant, this Board will not award active duty points or request that the State of Tennessee to pay for ADSW which was not requested, approved or performed.

17.  In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records, but only as recommended below.

RECOMMENDATION:

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

	a.  by showing that the individual concerned was awarded constructive Reserve component service (not on active duty) in the rank of colonel for the period 1 July 1998 to 15 April 2000;

	b.  by showing he earned 48 IDT points, 15 AT points and 15 membership points for a total of 78 retirement points during the RY beginning on 2 June 1998 and ending on 1 June 1999 and that this RY was a “good year” creditable for retired pay; 

	c.  by showing he earned 48 IDT points, 15 AT points and 15 membership points for a total of 78 retirement points during the RY beginning on 2 June 1999 and ending on 1 June 2000 and that this RY was a “good year” creditable for retired pay; 
	d.  by showing he earned 4 IDT points, 15 AT points and one membership point during the partial RY from 2 June 2000 through 30 June 2000 and that this service is a creditable period of 29 days for retired pay;

	e.  by showing that he earned an additional two years and 29 days creditable service for retired pay.

2.  That the individual concerned be paid all appropriate pay and allowances at the rank of colonel/pay grade 0-6 for 48 periods of IDT and 15 days of AT during the RY beginning on 2 June 1998 and ending on 1 June 1999.

3.  That the individual concerned be paid all appropriate pay and allowances at the rank of colonel/pay grade 0-6 for 48 periods of IDT and 15 days of AT during the RY beginning on 2 June 1999 and ending on 1 June 2000.

4.  That the individual concerned be paid all appropriate pay and allowances at the rank of colonel/pay grade 0-6 for 4 periods of IDT and 15 days of AT during the RY beginning on 2 June 2000 and ending on 30 June 2000.

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

BOARD VOTE:  

___HBO__  __JH___  ___CLA__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____Ms. June Hajjar____
		        CHAIRPERSON

INDEX

CASE ID	AR2000044158	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010405	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY	MR. SCHNEIDER	
ISSUES         1.	135.0000.0000	
2.	135.0200.0000	
3.		
4.		
5.		
6.