PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           12 September 2002                  
	DOCKET NUMBER:   AR2002068016

	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. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Donald P. Hupman, Jr.		Member	
	Mr. William D. Powers		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 correction to his date of rank for major, promotion consideration to lieutenant colonel and cancellation of repayment of pay difference between the grade of captain and major.

3.  The applicant states that he was discharged from active duty on 7 June 1994, one day before his promotion to major.  He was placed in the Individual Ready Reserve (IRR) as a major on 7 June 1994.  He was reassigned to the Pennsylvania Army National Guard (PAARNG) effective 22 March 1996 as a major.  Effective 3 June 1998, he was transferred to the Texas ARNG (TXARNG) as a major.  In October 2000, the TXARNG found that he was erroneously a major since he was discharged on 7 June 1994 and selected on 8 June 1994.  Through no fault of his own, he has been carried as a major over these years.  He also states that he would like his date of rank for major corrected to 8 June 1984 with all pay and allowances and promotion review for lieutenant colonel.  He submits copies of his DD Form 214 (Report of Separation or Release from Active Duty), his selection letters and his orders from the IRR, the PAARNG and the TXARNG in support of his application.

4.  The applicant’s military records show that he was appointed in the Reserve, Medical Corps, as a captain and he was ordered to active duty and placed on the active duty list (ADL) effective 8 June 1988.

5.  On 12 May 1994, the applicant's name appeared on promotion orders for promotion to major with a date of rank and effective date of 8 June 1994.  The orders stated that promotion is not valid and will be revoked if the officer concerned is not in a promotable status.

6.  He was honorably separated from active duty in the grade of captain effective 7 June 1994 and transferred to the USAR Control Group (Reinforcement).  His promotion eligibility date for major in the Reserve was 8 June 1994, the date following his separation and removal from the ADL.

7.  He was erroneously accessed into the Control Group as a major.

8.  The first available Reserve Components Selection Boards (RCSB's) he was eligible for consideration for major was in 1995 and 1996.  He was erroneously not considered for promotion to major by the 1995 and 1996 RCSB’s.

9.  He was transferred from the USAR and appointed in the PAARNG, in the grade of major, effective 22 March 1996.

10.  He was transferred from the PAARNG to the TXARNG, as a major effective 3 June 1998.

11.  On 1 October 2000, The TXARNG issued orders amending the applicant's appointment orders to read captain vs. major as his grade at the time of his appointment.

12.  On 18 October 2000, the TXARNG issued orders promoting the applicant to major effective 14 October 2000.  The orders advised that the individual would not be paid as major until Federal recognition was confirmed.

13.  On 4 January 2001, Federal recognition was extended and the applicant was promoted to major effective 4 January 2001, with a date of rank of 6 March 2001.

14.  He was identified for promotion consideration to lieutenant colonel by the 2001 RCSB.  His name was later deleted because he was still shown as a captain.

15.  Army Regulation 135-155 concerning promotion of Reserve officers, then in effect, specified that an active duty officer who is selected for promotion but removed from the ADL and placed in an active Reserve status prior to promotion, is not eligible for that promotion and that officer will be considered for promotion by a Reserve promotion board.

16.  It also specified that promotion reconsideration by a Standby Advisory Board (STAB) may only be based on erroneous non-consideration or material error that existed in the record at the time of consideration.

17.  Paragraph 8, Army Regulation 15-185, the regulation under which this Board operates, states that the Board will not consider an application if it determines the applicant has not exhausted all available administrative remedies.  In cases such as this, the Office of Promotions, Reserve Components, Total Army Personnel Command (PERSCOM), St. Louis, Missouri 63132-5200, may be contacted to request promotion consideration to lieutenant colonel under 1997 or later criteria. Applicants may also request defacto status to their respective chain of command.

CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to correction to his date of rank for major to 8 June 1994.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The Board notes his contentions that he was selected for promotion to major while on active duty; however, the applicant was voluntarily separated from active duty and removed from the ADL in the grade of captain on 7 June 1994, and transferred to the USAR prior to his promotion.  He was erroneously appointed from the USAR in the PAARNG and later the TXARNG in the grade of major.  The TXARNG subsequently amended his appointment orders to show his rank as captain.  He was later promoted to major with a date of rank of 6 March 2001 by the TXARNG and extended Federal recognition effective 4 January 2001; therefore, he is ineligible for the promotion and a date of rank for major of 
8 June 1994.

3.  The Board also notes that the applicant’s records were erroneously not considered for promotion to major by the 1995 and 1996 RCSB’s and should now be submitted for appropriate STAB consideration for this purpose.

4.  It is also noted that if the applicant is selected his records should be further corrected to show he was promoted to the next higher grade on his date of eligibility therefore, as determined by appropriate Departmental officials using the criteria cited, provided he was otherwise qualified and met all other prerequisites for promotion.  If the applicant is not selected, he should be so notified.

5.  The Board further notes that if the applicant is selected under 1995 or 1996 criteria, he may be eligible for promotion consideration to lieutenant colonel under 2002 or 2003 criteria; therefore, he may petition the PERSCOM for this purpose. 

6.  The Board also notes that while the PAARNG and the TXARNG erroneously appointed the applicant in the grade of major when he was in fact released from active duty in the grade of captain, upon discovery by the TXARNG, his appointment orders were amended to read captain as his proper grade.  He has not yet exhausted his administrative remedies in this instance and the Board will not further address this issue.  In this case, the applicant may petition the PAARNG and the TXARNG to show he served in a defacto status in the grade of major from 22 March 1996 to 1 October 2000, respectively.  

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 submitting the records of the individual concerned to duly constituted STAB’s as deemed appropriate for promotion consideration for major under 1995 and 1996 criteria.

2.  That if selected, his records be further corrected by showing he was promoted to the next higher grade on his date of eligibility therefore, as determined by appropriate Departmental officials using the criteria cited, provided he was otherwise qualified and met all other prerequisites for promotion.

3.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__DPH____  _JNS__  _WDP___ GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			John N. Slone
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2002068016	
SUFFIX		
RECON		
DATE BOARDED	20020912	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.