MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  	

	BOARD DATE:  13 May 2003
	DOCKET NUMBER:  AR2002069585

	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	
	Mr. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Lawrence Foster		Member	
	Mr. Ted S. Kanamine		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:  In effect, that the date of his transfer to the Retired Reserve be changed from 1 March to 1 October 2000.

APPLICANT STATES:  That his Mandatory Removal Date (MRD) was incorrectly calculated as 7 February 2000, which was 5 years after Senate confirmation of his promotion to the rank of colonel.  His MRD should have been calculated as 5 years from the effective date of his promotion to colonel, which was 1 October 1995.  He submits copies of Army Regulations, his promotion order, and a 1 June 1995 legal opinion concerning MRD issues in support of his application.

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

The applicant was serving as an Army Reserve lieutenant colonel in the Active Guard/Reserve (AGR) program with a date of rank of 29 May 1989.  He was considered but not selected by the 1993 Colonel, Reserve Components Selection Board (RCSB).  He was considered and selected for promotion by the 1994 Colonel, RCSB.  The Senate confirmed that list of selected officers on 6 February 1995.

The applicant had a Promotion Eligibility Date (PED) of 19 August 1994.  He was not immediately promoted due to strength limitations of authorized positions in the controlled grade of colonel.  On 1 August 1995, his promotion memorandum to colonel was issued with a date of rank of 19 August 1994 and an effective date of 1 October 1995.  Paragraph 3 of the memorandum notes that the applicant was assigned to a position authorized the higher grade effective 1 October 1995.

The legal opinion from the Office of The Judge Advocate General (OTJAG) addressed to the Office, Chief Army Reserve (OCAR) set forth guidance on computation of MRD based on maximum length of service.  Paragraph 4 of the opinion provides guidance for AGR officers and notes that officers involuntarily delayed due to strength limitations for promotion to colonel will have their MRD computed under Title 10, U. S. Code, section 3851 (a) as the officer's PED or date of Senate confirmation, whichever is later.

In the processing of this case an advisory opinion was provided by the Army Reserve Personnel Command (AR-PERSCOM).  The opinion confirms compliance with OTJAG guidance in the applicant's case, which was computed as 5 years after Senate confirmation of his promotion selection board based on his involuntary delay due to strength limitations in the grade of colonel.  The applicant was provided a copy of the opinion for possible comment but failed to respond.

Further clarification of the OTJAG guidance was provided to all appropriate command and agencies in a 30 September 1996 message from the Deputy Chief of Staff for Personnel (DCSPER).  Paragraph 4 of the DCSPER message stated that AGR officers recommended for promotion to colonel on or before 30 September 1996, may serve 5 years time in grade unless their promotion was automatically delayed due to strength limitations in authorized positions or controlled grades.

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, it is concluded:

1.  The applicant has not shown error or injustice in the calculation of his MRD based on 5 years of service as a colonel from the date of Senate confirmation of the RCSB that recommended his promotion to colonel.  He is not entitled to an adjustment to his MRD as a matter of law.

2.  The advisory opinion from OTJAG and AR-PERSCOM confirm that the applicant's MRD was correctly calculated based on the circumstances of this case.

3.  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

__mp___  ___lf__  __tk____  DENY APPLICATION

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

INDEX

CASE ID	AR2002069585	
SUFFIX		
RECON		
DATE BOARDED	20030513	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	135.05	
2.	136.01	
3.		
4.		
5.		
6.