MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           21 December 2000                  
	DOCKET NUMBER:   AR2000045769

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Ernest W. Lutz		Member	
	Ms. Gail J. Wire 		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:  Reconsideration of his earlier appeal to correct his military records by showing that he is eligible for advancement to lieutenant colonel after he has served a combined (active duty and retired) total of 30 years.

APPLICANT STATES:  In effect, that the Government has already agreed to this provision.  He cites the settlement agreement in his lawsuit to substantiate his case.  He also contends, in effect, that under Title 10, United States Code (USC) Section 688 he could not be ordered to active duty in a rank lower than the rank he had already held, which was lieutenant colonel.  By agreeing to credit him with constructive service as an officer the Army violated this provision of law.
 
NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AR2000036273) on 5 April 2000.

The applicant’s contentions are new argument that requires Board consideration.

The settlement agreement states, in pertinent part, “The parties further agree that after retirement as a major, plaintiff will be entitled to advancement to lieutenant colonel at the completion of 30 years active and retired service, to the extent he is otherwise entitled by law and not by virtue of this Settlement Agreement.”

Title 10, USC Section 688, Retired members: authority to order to active duty; duties, states in pertinent part:
(a) Authority. - Under regulations prescribed by the Secretary of Defense, a member described in subsection (b) may be ordered to active duty by the Secretary of the military department concerned at any time. 
(b) Covered Members. - Except as provided in subsection (d)
subsection (a) applies to the following members of the armed forces:
(1) A retired member of the Regular Army, Regular Navy, Regular Air Force, or Regular Marine Corps. 
(2) A member of the Retired Reserve who was retired under section 1293, 3911, 3914, 6323, 8911, or 8914 of this title. 
(3) A member of the Fleet Reserve or Fleet Marine Corps 
Reserve. 
	
Subsection (d) States: 
(d) Exclusion of Officers Retired on Selective Early Retirement Basis. - The following officers may not be ordered to active duty under this section: 

(1) An officer who retired under section 638 of this title. 
(2) An officer who - (A) after having been notified that the officer was to be considered for early retirement under section 638 of this title by a board convened under section 611(b) of this title and before being considered by that board, requested retirement under section 3911, 6323, or 8911 of this title; and (B) was retired pursuant to that request. 

		
Title 10, USC Section 3964, higher grade after 30 years of service for warrant officers and enlisted members, states:
	(a) Each retired member of the Army covered by subsection (b) who is retired with less than 30 years of active service is entitled, when his active service plus his service on the retired list totals 30 years, to be advanced on the retired list to the highest grade in which he served on active duty satisfactorily (or, in the case of a member of the National Guard, in which he served on full-time duty satisfactorily), as determined by the Secretary of the Army.
	(b) This section applies to (1) warrant officers of the Army; (2) enlisted members of the Regular Army; and (3) reserve enlisted members of the Army who, at the time of retirement, are serving on active duty (or, in the case of members of the National Guard, on full-time National Guard duty).

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR.  It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration.  The staff of the Board is authorized to determine whether or not such evidence had been submitted.

The regulation provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case.  In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously or within a short time after the Board’s original decision.  If the staff finds such evidence, the case will be resubmitted to the Board.  If no such evidence is found, the application will be returned without action.

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

1.  The applicant was not retired when the agreed to period of constructive active service begun on 25 September 1987 or on 10 September 1989 when he actually entered active duty in pay grade W-1.  Title 10, USC Section 688 is not applicable in this case.

2.  The applicant is not entitled to advancement to lieutenant colonel under any provision of the law.  He served Army Reserve active training periods as a lieutenant colonel but he never served on active duty in that rank.

3.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

4.  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

__KAK__  __EWL__  __GJW___  DENY APPLICATION

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

INDEX

CASE ID	AR2000045769	
SUFFIX		
RECON		
DATE BOARDED	20001221	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	129.040	
2.		
3.		
4.		
5.		
6.