PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            27 NOVEMBER 2001
	DOCKET NUMBER:   AR2001061994

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Lester Echols		Member	
	Mr. John T. Meixell		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 he be reinstated in the Army Reserve in the grade of lieutenant colonel with the restoration of all rights, privileges, and property, to include Reserve retirement points and pay that he would have received had he been allowed to continue in an active Reserve status in a troop program unit (TPU).  He requests that his records be submitted before a special selection board for consideration for promotion to colonel.  He also requests that upon reinstatement to an active status his mandatory removal date be appropriately extended.

3.  The applicant states that he was erroneously non selected for lieutenant colonel in April 1992, resulting in his transfer to the Retired Reserve.  He has since been promoted by a special board, with a date of rank of                           14 December 1993.  

4.  On 10 September 2001 the applicant’s counsel requested that this Board reconsider his case and grant the relief directed by the 19 April 2000 Board, that is to reinstate the applicant in the Army Reserve; and also to address the back pay issue, and in effect awarding compensation for constructive service,  notwithstanding the fact that no drills were performed after 14 December 1993. 

5.  Incorporated herein by reference are military records of the 19 April 2000 Board determination that two officer evaluation reports, for the period 1 June 1987 through 31 May 1988 and for the period 1 June 1988 through 31 May 1989, be expunged from his official military personnel file.  That Board also directed that his records be placed before a special selection board for promotion reconsideration under the criteria of the boards that failed to select him for promotion to lieutenant colonel, and if selected, he be given the appropriate date of rank with entitlement to all back pay and allowances.  The Board did not grant his request to be reinstated in the Army Reserve at that time, but stated that should he be selected for promotion, he apply to this Board for reconsideration of his request to be reinstated in the Army Reserve (AR2000039077). 

6.  A 20 June 2000 routing slip from the Army Reserve Personnel Command in St. Louis shows that the two evaluation reports were not in OMPF.  Non-prejudicial comments were placed in his file to explain the non-rated time.  His records were placed before a special selection board for promotion reconsideration under the criteria of the boards that failed to select him for promotion to lieutenant colonel.  

7.  In a 9 August 2001 memorandum to the Army Reserve Command at Fort McPherson, Georgia, the Office of Promotions at the Total Army Personnel Command in St. Louis requested that the orders of 10 November 1993 placing the applicant in the Retired Reserve be revoked.  That office indicated that the applicant had been recommended for promotion under the 1992 criteria by a DA Promotion Advisory Board that adjourned on 29 March 2001 with a promotion eligibility date of 14 December 1993.  

8.  Information obtained from the Army Reserve Command on 8 November 2001 revealed that command could not revoke the order transferring the applicant to the Retired Reserve because it had been given no authority to do so.

9.  Information obtained from the Total Army Personnel Command at St. Louis on 13 November 2001 revealed that the applicant was in fact selected for promotion to lieutenant colonel under the 1992 criteria.  The 1992 Army Reserve Army Promotion List (APL) Selection Board for consideration for promotion to lieutenant colonel convened on 29 September 1992 and adjourned on               16 October 1992.  The board recommendations were approved on                    28 December 1992.  

10.  Army Regulation 140-10, chapter 10, then in effect, prescribes for the convening of selective retention boards and states in pertinent part that selective retention boards will convene each year and consider all officers having completed 20 qualifying years of service except officers who have been promoted within the 2 years prior to the board, or selected to be promoted, during the fiscal year in which the board is scheduled to be convened.  

11.  Army Regulation 135-155 then in effect prescribes policy and procedures for the selection and promotion of commissioned officers of the Army Reserve.  Paragraph 4-8 states in pertinent part that an officer who is mandatorily considered and then selected will be transferred from the unit to the IRR (Individual Ready Reserve) and promoted.  Promotion will be not later than       90 days after the receipt of promotion notification or the normal promotion eligibility date, whichever is later.  The exceptions to this rule are if an officer fills a vacancy in the unit in a higher grade; or is retained in the unit on an overstrength status as authorized by Army Regulation 140-1 [Forces Command (FORSCOM)is authorized to permit overstrength in paid drill positions up to      100 percent of wartime required strength in Civil Affairs and certain other type units]; is authorized retention in the unit in a lower grade (aviators, chaplains, Army Medical Department officers and Judge Advocate General Corps officers; or declines promotion for the maximum period authorized (one year).   

12.  Army Regulation 135-180 implements statutory authorities governing the granting of retired pay to soldiers and former Reserve Component soldiers.  Paragraph 2-8 of that regulation describes qualifying service, as pertains to this case, as service performed in an active status in a Reserve component or in active federal service.  After 30 June 1949, a reservist must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service.  When a person is in an active status for a period less than a full retirement year, a minimum number of retirement points are required to be earned in order to have that period credited as qualifying service.

13.  Department of Defense Instruction (DODI) 1215.00, paragraph 5.3.3 mandates that Reservists who have qualified for retirement except for reaching 60 years of age, are required to attain 50 points annually during their anniversary year to be retained in the IRR.  Waiver of that requirement on a one-time basis may be made under exceptional circumstances by the Secretary of the Military Department concerned.     

14.  Army Regulation 140-185 prescribes the types of training and activities for which retirement points are authorized and the procedures for recording retirement point credits and training for Reserve soldiers.  It states that a maximum of 60 points may be credited to a soldier during a retirement year for IDT (Inactive Duty for Training) and membership points; however, statements of retirement points will report all points earned.  It also states in pertinent part that a soldier will be awarded 15 points for each year in an active status (membership points).  IDT retirement points may be awarded to soldiers in the IRR for completion of correspondence courses, attendance at meetings for retirement points credit only, and for certain other activities.

15.  The Reserve Personnel Management Act (ROPMA) became effective on     1 October 1996, and states in pertinent part, that a lieutenant colonel may serve on the Reserve Active Status List (RASL) until the first day of the month after the month they complete 28 years of commissioned service, or the last day of the month they reach 60 years of age, whichever is earlier, regardless of the number of times mandatory promotion boards non-select them for promotion to colonel.   

CONCLUSIONS:

1.  The applicant was not transferred to the Retired Reserve because of his non selection for promotion to lieutenant colonel as he contends, but because he was not selected for retention in a troop program unit (TPU).  That action at that time  was correct.  Nonetheless, the determination made by this Board on                   19 April 2000 which eventually resulted in the applicant’s selection for promotion to lieutenant colonel under the 1992 criteria by a promotion advisory board, would have caused him not to be considered by the Fiscal Year 1993 selective retention board, and thus would not have resulted in his transfer to the Retired Reserve, albeit a voluntary action on his part.  Consequently, his non selection for retention in a TPU is null and void and of no force or effect, as is his transfer to the Retired Reserve with entitlement to special separation pay on                   10 December 1993.    

2.  Therefore, the applicant is restored to an active status in the Army Reserve effective on 10 December 1993.  Had the applicant been selected for promotion in 1992 [the 1992 board recommendations were approved on                              28 December 1992], the applicant could have been promoted in his unit provided a vacancy existed, or he could have declined his promotion and remained in his TPU for one year, or he could have been retained in his unit in an overstrength status if authorized by FORSCOM and if the required strength of his unit did not exceed 100 percent.  There is no information or evidence that any of those conditions existed, or that they would have occurred in 1993.  What is known, for sure, is that a soldier selected for promotion would be transferred to the IRR, and barring evidence to the contrary, the applicant would have been transferred to the IRR.  To assume otherwise, is pure speculation.  The applicant’s retroactive transfer to the IRR concurrent with his promotion to lieutenant colonel would be the most appropriate thing to do.  His request that his record be changed to reflect retention in his troop program unit from 1993 to the present is rejected.  

3.  Consequently, the applicant’s record should reflect that he was transferred from his troop program unit to the Army Reserve Control Group (Reinforcement)  on 14 December 1993 and promoted to lieutenant colonel on that same date.  

4.  His transfer to the IRR and his retention in that control group from 1993 to the present time would necessitate that the applicant earn 50 retirement points during each of the retirement years assigned to the IRR.  In all fairness to the applicant, it would be appropriate to correct his record to credit the applicant with 50 retirement points for his retirement years from 1993 to the present.           

5.  The applicant’s restoration to an active status would make him eligible for consideration for promotion to colonel.  Therefore, he should also receive promotion consideration to the rank of colonel by all appropriate special promotion selection boards under the criteria of the boards which failed to consider him for promotion to colonel.  In the event that he is selected for promotion, he will be given the appropriate date of rank commensurate with his selection, with entitlement to all back pay and allowances.    

6.  The applicant’s mandatory removal date, 28 years of commissioned service or age 60, whichever occurs first, is mandated by law.  His request that it be otherwise extended is rejected. 

7.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

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

     a.  expunging from his official military personnel file any documents that indicated that he was non selected for retention and revoking the order transferring him to the Retired Reserve on 10 December 1993; 

     b.  showing that he was transferred to the Army Reserve Control Group (Reinforcement) on 14 December 1993 and promoting him to lieutenant colonel on that same date; 

     c.  crediting him with 50 retirement points beginning with his retirement year in 1993 to the present time, his current retirement year; and 

     d.  submitting his records before a promotion selection boards under the criteria of the boards which failed to consider him for promotion to colonel.  In the event that he is selected for promotion, give him the appropriate date of rank commensurate with his selection, with entitlement to all back pay and allowances.    
          
2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__AAO__  ___LE___  __JTM __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Arthur A. Omartian___
		        CHAIRPERSON

INDEX

CASE ID	AR2001061994	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20011127	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	128.00	
3.	131.00	
4.	135.00	
5.	136.00	
6.	193