MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           10 April 2001                  
	DOCKET NUMBER:   AR2000046700

	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	
	Ms. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Ms. Sherri V. Ward		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. James E. Anderholm		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:  Adjustment to his date of ranks for captain to 22 April 1986 and major to 22 April 1993, with entitlement to all back pay.  He further requests promotion consideration to lieutenant colonel (LTC) by a special selection board (SSB) under the 1999 criteria. 

APPLICANT STATES:  That he was selected for promotion to captain by the 26 November 1985 Captain Competitive Category, Active Component (AC) Board.  He wanted to single track in the area of concentration 53 (Computer Science) and knew this was only possible in the USAR.  Prior to voluntarily leaving active duty he inquired if his selection would carry over to the Reserve.  He further states that he was guaranteed that it would and so he transferred to the Individual Ready Reserve (IRR).  Subsequent to that he was advised he was not promotable and would have to wait to be considered by an USAR Promotion Board.  He strongly feels his decision to leave active status was based upon inaccurate guidance provided by an officer in authority and entrusted to provide career counseling to officers in his command.  He submits copies of his promotion selection letter from the AC Captain’s Board, separation document (DD Form 214), promotion orders to captain and major in the Reserve and Department of Defense Directive 1310.1 in support of his request.

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

He was appointed in the Reserve as a second lieutenant effective 22 April 1983 and entered on active duty the same date.

He was promoted to first lieutenant effective 22 October 1984.

He was considered and recommended for promotion to captain by the Army Promotion Selection Board which convened on 16 December 1985.

He was honorably separated from active duty in the rank of first lieutenant effective 21 April 1986 for expiration of term of service.

Based on the required 4 years time in grade his promotion eligibility (PED) date for promotion to captain was 21 October 1988 and based on the required 6 years time in service his PED was 21 April 1989.  His PED is 21 April 1989, the latter of the two dates.

He was considered and selected for promotion to captain by the 1989 Reserve Components Selection Board.  His effective date and date of rank was 21 April 1989.

He was promoted to major effective 20 April 1996.  Based on the required 7 years time in grade his PED for LTC is 19 April 2003.

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation provides that to be eligible for promotion to the next higher grade, an USAR officer must be in an active status and meet the minimum promotion service and military education requirements.

The regulation further specifies that officers transferring from active duty to the USAR will be given an adjusted date of rank to the date after the transfer.  Eligibility for promotion will be based on the time in service and time in grade eligibility whichever is the latest.

The Reserve Officer Personnel Management Act (ROPMA), a public law enacted by Congress on 5 October 1994, prescribes the policies and procedures to consolidate and modernize the laws that govern Reserve component officers.  The law became effective 1 October 1996.  ROPMA provides for transfer of promotion list status between components on or subsequent to 1 October 1996.

The Chief, Promotion and Notifications Branch, Office of Promotion, Total Army Personnel Command (PERSCOM), expressed the opinion that the applicant is requesting correction to his date of rank while on active duty and their office only handles Reserve Promotion corrections.  The applicant was on active duty when selected for captain initially, then upon being released from active duty, that promotion did not transfer as he was told.  At the time of the transferring to the Reserve, Reserve promotions were based on time in service and time in grade eligibility, whichever is the latest. In the applicant’s case, his promotion eligibility date was the latter of the two dates.  As a result of the facts presented, it is recommended that the applicant’s request be forwarded to the Commander, PERSCOM.

The Chief, Promotions Branch, PERSCOM, expressed the opinion that the applicant was considered and selected for promotion to captain by the Fiscal Year 1985 Captain, Army Promotion Selection Board that recessed on 16 December 1985.  The applicant had a sequence number of 1705 with a promotion eligibility date to captain of 1 March 1987.  The applicant was told that he could transfer to the Reserve and carry his promotion to captain.  The applicant left active duty on 21 March 1986 [sic].  The applicant is asking the Reserves to adjust his captain date of rank.  No action is required by this office. 

The opinions were forwarded to the applicant for rebuttal on 26 February 2001.  In his rebuttal dated 14 March 2001, he states that he can only assume that his PED to captain is correct.  The date he left active duty was 21 April 1986 not 21 March 1986.  He further states that prior to leaving active duty he took expert advice from the Officer in Charge and feels this is an injustice and that he was misled.  His peers are at least 2 years ahead of him in rank because he believed and trusted he was receiving accurate guidance.

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.  In view of the circumstances in this case, the applicant is not entitled to adjustment to his date of ranks for captain to 22 April 1986 and major to 22 April 1993, with entitlement to all back pay.  The evidence shows he has been properly considered for promotion.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The Board notes his contentions that he was misinformed that his promotion while on active duty would transfer with him to the Reserve which has affected his captain and major dates of rank and eligibility for promotion consideration to LTC under 1999 criteria.  However, the applicant was selected for promotion to captain while on active duty.  Prior to this promotion becoming effective he transferred to the USAR.  Had the applicant stayed on active duty he would have been promoted to captain with a date of rank of 1 March 1987 and not 2 April 1986.  The Board further notes that the applicant’s date of rank was correctly adjusted to 22 April 1986, the date after his transfer to the Reserve.

3.  It is also noted that based on his adjusted date of rank and meeting the required time in grade requirements for promotion to major, the applicant was given an appropriate date of rank for major.  It is further noted that based on his date of rank for major he is not eligible for promotion consideration to LTC under 1999 criteria. 

4.  The applicable regulation does not provide transferring of active duty promotion status with an individual upon transfer to the Reserve prior to 1 October 1996.  

5.  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 this requirement.

6.  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

_jea____  _svw____  _gdp____  DENY APPLICATION

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

INDEX

CASE ID	AR2000046700	
SUFFIX		
RECON		
DATE BOARDED	20010410	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	102.0700	
2.		
3.		
4.		
5.		
6.