MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:             14 February 2002                   
	DOCKET NUMBER:     AR2001061025

	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:

	Mr. John N. Slone		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. John E. Denning		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:  Promotion to colonel.

APPLICANT STATES:  That he received a letter of selection to colonel and was in a promotable position, but was not promoted prior to his retirement.  He also states that he was assigned to a lieutenant colonel position and then reassigned. Afterwards, the first position was changed to a colonel’s position and he initiated a request to be reassigned to that position and be promoted to colonel.  He was later informed that he was to be carried overstrength against a deleted position rather than being assigned to a vacant position because he was under 1 year from his mandatory retirement with 20 years active Federal service (AFS).  He submits a copy of his promotion selection letter, separation document (DD Form 214), and retirement orders in support of his request.

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

He was appointed in the Reserve, Quartermaster Corps as a first lieutenant effective 15 January 1972.   He attained the rank of major effective 14 March 1981.

He was appointed in the Reserve, Medical Service Corps, as a major effective 4 November 1983.  He entered into the Active Duty Guard/Reserve (AGR) program effective 1 April 1984.

He attained the rank of lieutenant colonel effective 13 March 1988.

On 10 August 1992, a promotion selection memorandum was issued to him showing promotion to colonel pending Senate confirmation with a promotion eligibility date of 12 March 1993.

His records show he was assigned to a lieutenant colonel position as a Plans Officer effective 1 June 1993, and reassigned to another lieutenant colonel position effective 17 August 1994.  His records do not show he was assigned to a colonel’s position.

On 30 September 1995, he was honorably separated for sufficient service for retirement, in the pay grade of lieutenant colonel, and transferred to the USAR Control Group (Retired).  He was placed on the Reserve retired list effective 1 October 1995.

Current separation policy provides for involuntary separation of Reserve officers upon completion of 20 years of AFS.  It also provided at the time, completion of 3 years of satisfactory service in the highest grade for retirement in that higher grade.

Current Reserve promotion policy provides that for promotion qualification purposes, those selected must occupy a higher position vacancy or transfer to the Reserve Control Group to accept promotion, or they may decline promotion for a specified period of time for qualification purposes.

The Director, Full Time Support Management Directorate, Army Reserve Personnel Command, expressed the opinion that the applicant’s military records and supporting documents do not substantiate that there was error or injustice in the applicant not being promoted to colonel prior to his retirement in 1995.  From the time the applicant was selected by a mandatory promotion board in 1992, through his retirement date in 1995, the Army Reserve had more promotable lieutenant colonels in the AGR program than authorized colonel positions.  This situation forced the Chief, Army Reserve to convene an Assignment Advisory Board annually to create an order of merit list (OML) to rank order all promotable lieutenant colonels, so that the highest quality officers were assigned to the Congressionally mandated limited number of colonel positions.  The applicant was not assigned to an AGR colonel position based on his ranking on the OML.  After his selection for promotion, he was assigned to two different lieutenant colonel positions in the US Army Health Services Command; first as a mobilization plans officer in November 1993, then as an operations and training staff officer in August 1994 until his retirement in 1995.  The applicant is not eligible for promotion to colonel based on the fact that he was never “assigned to a duty position authorized a grade equal to that which he was selected” as required by his promotion selection memorandum dated 10 August 1992.  It was recommended that the applicant’s request be denied.

The opinion was forwarded to the applicant for his acknowledgment/rebuttal on 20 December 2001.  In his rebuttal, dated 28 December 2001, the applicant states the opinion is correct in stating that he was assigned to two different positions in the US Army Health Service Command; however, what is not indicated is that the second position was deleted to recreate a colonel position that had previously been deleted from the TDA.  He also states that prior to him being assigned to the colonel position, the Chief, Army Reserve, deleted the position from the TDA and he was assigned to the lieutenant colonel operations officer position.  The colonel position was subsequently reinstated and he was advised that he had been moved overstrength to a non-authorized/non-existent position because he had less than a year before completing 20 years AFS.  He requested twice for a waiver of the 20 years AFS requirement and both requests were disapproved.  Unfortunately he was unable to locate a copy of the TDA showing he was assigned overstrength to a non-authorized lieutenant colonel position while the colonel position remained vacant for over a year while he 

performed the duties of that position.  As far as he knew the information provided by his personnel management officer at his branch is the only reason he was not placed in the colonel position and promoted because he could not complete a full-tour prior to reaching 20 years of AFS.

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 promotion to colonel.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  His contentions have been noted; however, he did not occupy a colonel position nor was he ever assigned to a duty position authorized a grade equal to that which he was selected.  The Board also notes that he would not have been able to complete 3 years of satisfactory service in the higher graded position prior to reaching 20 years of AFS.

3.  The applicant was properly separated on 30 October 1995.  As a Reserve officer he is not and was not permitted to remain on active duty beyond 20 years of AFS.

4.  It is noted here that contrary to the applicant’s contentions that with promotion he would have remained on active duty beyond October 1995, his separation upon completion of the 20 years of AFS was mandated, with or without the promotion.

5.  The Board further notes that the applicant was not in a promotable status on or before 12 March 1993, his promotion eligibility date.

6.  The Board concludes in this case that the applicant has not shown he was previously positioned, or would have been positioned, into a colonel position before his retirement.  He served as a lieutenant colonel during the contested period of time and was paid and credited accordingly.  Positioning into a higher graded position, as in promotion selection, at the time, was very competitive as the Army Reserve had more promotable lieutenant colonels in the AGR program than authorized colonel positions.  His ranking on the OML was apparently not high enough for a colonel position or duties and he was utilized accordingly as a lieutenant colonel until his retirement.  He has not shown otherwise.

7.  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.
8.  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

_bje____  _jns____  _jed____  DENY APPLICATION

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

INDEX

CASE ID	AR2001061025	
SUFFIX		
RECON		
DATE BOARDED	20020214	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.	131.01	
3.		
4.		
5.		
6.