PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           16 January 2003
	DOCKET NUMBER:   AR2002066432

	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	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Ms. Marla J. N. Troup		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 records be corrected to show he was promoted to Colonel, O-6 and that he be reinstated on active duty with any and all due back pay and allowances.

3.  The applicant states, in effect, that he received his promotion orders after he retired.  He was an Army National Guard (ARNG) officer in an Active Guard/Reserve (AGR) status.  He did not complete 20 years of active duty.

4.  The applicant’s military records show that he was born on 8 June 1952.  He enlisted the ARNG in January 1970 and was appointed a commissioned officer in the ARNG on 24 June 1972.  He entered active duty in an AGR status in 1986.  He was promoted to Lieutenant Colonel, O-5 on 6 September 1992.

5.  The applicant received an Officer Evaluation Report (OER) for the period ending 13 June 1993 on which his senior rater rated him below center of mass.  He appealed this OER to the Officer Special Review Board (OSRB) in February 1997.  In September 1998, the OSRB found that there was sufficiently convincing evidence to warrant deletion of the senior rater profile on the contested OER.  The OSRB also concluded that promotion reconsideration could be warranted because of their correction.

6.  On 20 September 1998, the applicant submitted a request to the Board for promotion reconsideration to Colonel.  

7.  On an unknown date, the applicant submitted a request for voluntary early retirement.  On 30 September 1999, he was separated from active duty and separated from the ARNG and transferred to the Retired Reserve.  He was placed on the Retired List effective 1 October 1999, at age 47, in the rank of Lieutenant Colonel after completing about 15 years, 10 months, and 9 days of creditable active service (the available DD Form 214 (Certificate of Release or Discharge from Active Duty) is partially illegible).  

8.  On 24 November 1999, the Board recommended approval of the applicant's request for promotion reconsideration to Colonel.

9.  By memorandum dated 27 August 2001, the U. S. Total Army Personnel Command informed the applicant he had been selected for promotion to Colonel under the 1998 promotion criteria with a date of rank of 4 March 1999.

10.  Headquarters, Department of the Army, Office of the Deputy Chief of Staff for Personnel message 011700Z October 1996, Subject:  Reserve of the Army 
Transition to the Reserve Officer Personnel Management Act (ROPMA), states 
that Colonels attaining maximum years of commissioned service shall be removed from the Reserve Active Status List on the first day of the month following the month in which they complete 30 years of commissioned service.  It further states that AGR Lieutenant Colonels and above who retire for maximum age or service or for attaining 20 years of active Federal service need to complete 6 months time in grade to retire in that grade.

11.  The National Guard Bureau AGR Personnel Policy Branch verified that the last authorized early retirement date for AGR personnel was 30 September 2001.

12.  Chapter 1219 of Title 10 United States Code governs standards and procedures for retention and promotion of reserve officers.  Section 12646(e)(1) of this law provides that a reserve commissioned officer on active duty (other than for training) or full-time National Guard duty (other than for full-time National Guard duty for training only) who is within two years of qualifying for retirement under section 3911, section 6323, or section 8911 of this Title may, in the discretion of the Secretary concerned, be retained on that duty for a period of not more than two years.  Further, section 12646(2) this provision of law states that an officer may be retained under Title 10 on active duty or full-time National Guard duty only if:  (A) at the end of the period for which the officer is retained the officer will be qualified for retirement under section 3911, section 6323, or section 8911 of this Title; and (B) the officer will not, before the end of that period, reach the age at which transfer from an active status or discharge is required by this Title or Title 14.  Section 12646(3) states that an officer who is retained on active duty or full-time National Guard duty under this provision of law may not be removed from an active status while on that duty.

CONCLUSIONS:

1.  As a result of an earlier Board action, the applicant was promoted to Colonel after he had retired on 1 October 1999.  Had his promotion been effected in a timely manner, he would have been promoted to Colonel with a date of rank of   4 March 1999.

2.  Had the applicant been promoted in a timely manner, he would have been eligible to remain in an active status until the first day of the month following the month in which he completed 30 years of commissioned service, i.e., 1 July 2002.  However, on that date he could not have received an active duty retirement as he would only have had a total of about 18 years, 7 months, and  12 days of creditable active Federal service.

3.  However, the law provides that an AGR officer with over 18 years of active Federal service may be retained beyond his or her mandatory release date if that officer can qualify for retirement before reaching age 60.  The applicant will attain 20 years of active Federal service around January 2004, at which time he will be age 51.  It would therefore be equitable to reinstate the applicant in an AGR status provided otherwise qualified.

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

RECOMMENDATION:

1.  Insofar as the Department of the Army is concerned, that all the records related to this case be corrected by:

     a.  showing the applicant was promoted to Colonel effective 4 March 1999; and

     b.  voiding his 30 September 1999 separation from active duty and transfer to the Retired Reserve.

2.  Insofar as the ARNG records related to this case are concerned, it is recommended that the National Guard Bureau:

     a.  prepare appropriate orders and documents reinstating the applicant on active duty in a Title 32 AGR status with Federal recognition effective from the date of his separation on 30 September 1999 provided otherwise qualified;

     b.  correct all of his records to show that he served in an AGR status from    30 September 1999 to the present;

     c.  notify him of the date he will attain 20 years of active Federal service qualifying him for a length of service retirement under Title 10 United States Code, section 3911; and

     d.  recalculate his retirement points as a result of the above corrections.

3.  That he be paid any and all due pay and allowances as a result of the above corrections.

BOARD VOTE:  

__RVO__  __AAO  _  __MJNT__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Raymond V. O’Connor, Jr.  _
		          CHAIRPERSON

INDEX

CASE ID	AR2002066432	
SUFFIX		
RECON		
DATE BOARDED	2003/01/16	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	129.05	
2.	136.01	
3.		
4.		
5.		
6.