MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  17 September 2002
	DOCKET NUMBER:  AR2002070399

	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. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Elzey J. Arledge		Chairperson	
	Ms. Karen A. Heinz		Member	
	Mr. Thomas B. Redfern		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:  That the Reserve Components Selection Board (RCSB) honor his selection for promotion to major (MAJ) in accordance with the attached memorandum, dated 2 June 1995, Subject:  Selection for Promotion.

APPLICANT STATES:  He was selected for promotion to major with an adjusted
promotion eligibility date (PED) of 20 August 1994.  He was transferred to the Florida Army National Guard (FLARNG) on 8 November 1994 and was unaware of his selection to major.  He joined the FLARNG to continue his career in the military.  He also stated that had he been notified of his selection, he would have remained in the US Army Reserve (USAR).  In support of his application, he submits copies of his:  appointment orders; a memorandum, Subject:  Selection for Promotion, dated 2 June 1995; his oath of office; and a letter of recommendation.

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

He was commissioned as a second lieutenant in the USAR on 20 September 1982, in the Transportation Corps and was ordered to active duty on the same day.

He was promoted to captain/03 on 1 September 1986.

The applicant was considered and not selected for promotion by the 1993 Major Army Competitive Category Promotion Board, which met from 9 March to 9 April 1993.

On 28 August 1993, the applicant was released from active duty under the provision of Army Regulation 635-120, chapter 3, Early Release Program-Voluntary Separation Incentive (VSI).  He had a total of 10 years, 11 months, and 9 days of creditable service.  Item 18 (Remarks) of his DD Form 214 states that he would be paid VSI in the amount of $10,214.38 for 21 years.

On 8 November 1994, he was granted Federal Recognition in the FLARNG in the rank of CW2/W-2.

The applicant was considered and selected for promotion to major by the 1995 RCSB, which convened on 14 March 1995.  

The applicant provided a copy of a memorandum, Subject:  Selection for Promotion, dated 2 June 1995, which stated that the applicant had been selected for promotion to the next higher grade with an adjusted PED of 20 August 1994.  The memorandum also stated that the orders promoting the applicant would be published approximately 30 days prior to his PED.

He was promoted to CW3/W-3 on 21 June 2000.
On 15 April 2001, he was separated from the FLARNG and was transferred to the USAR Control Group Individual Ready Reserve (IRR).

The applicant provided a copy of a letter of recommendation from the Commander, Area Support Group Eagle.  The commander stated that the applicant was a member of the IRR, was selected for promotion to major with a PED of 20 August 1994, in accordance with Army Regulation 135-155, and should have received his promotion orders within 30 days.  However, this action did not occur.  He transferred to the FLARNG as CW2 and prior to his transfer, he was still not notified of his selection to major before joining the FLARNG. However, had notification taken place, he would have remained in the USAR.  He was in a promotable status for approximately four months prior to his transfer.  Due to an apparent administrative oversight, he was never notified of his promotion and therefore was not promoted to the grade of major. The applicant has been a superb officer, as depicted by his service record.  He has met all the requirements for this promotion to major.  Furthermore, he is an outstanding officer who would continue to make a valuable contribution to the US Army and not approving his promotion to major would be a disservice to the US Army and the officer.

The Chief, Promotions and Notifications Branch, Office of Promotions, Reserve Components, Total Army Personnel Command (PERSCOM) provided an advisory opinion.  The opinion stated that the applicant was not in a commissioned status when he was selected for promotion to MAJ, and was not eligible for promotion.  He was selected for promotion to MAJ by the 1995 DA Reserve Components Selection Board that convened on 14 March 1995, with a promotion eligibility date (PED) of 19 August 1994.  Prior to the convening of the board, the applicant vacated his commission and was assigned to a National Guard unit as a CW2 on 8 November 1994.  The opinion also stated that he was ineligible in accordance with Army Regulation 135-155, paragraph 3-18, which states that if an officer is removed from an active status before promotion action is finalized, his name will be removed from the promotion list.  The applicant's name was deleted from the 1995 selection board's official results.  Based on the applicant's 6 years, 5 months, and 22 days served as a warrant officer, the applicant's date of rank (DOR) has been adjusted to 23 February 1993, and his PED to 22 February 2000.  However, his PED has been further adjusted to 30 March 2001.  This date was based on the fact that he was not in a commissioned status prior to 30 March 2001.  The earliest board the applicant was eligible to be considered by was the 2002 board that convened on 4 March 2002.  He was considered by the board and will be notified of the results upon the board's approval for release.  The opinion concluded that in view of the facts presented, that the applicant's request be disapproved.

Additional information was provided by PERSCOM to a staff member of the board.  The applicant was reappointed in the USAR (IRR) in the rank of captain with an effective date and DOR of 15 May 2001.  He was considered but not selected for promotion to major by the 2002 RCSB which convened on 4 March 2002.  The applicant's records will be reconsidered by the next RCSB which is scheduled to convene on 3 March 2003.

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  The regulation provides that mandatory selection boards will be convened each year to consider Reserve Component officers in an active status for promotion to captain through lieutenant colonel.  The regulation provides that in order to be qualified for promotion to major an individual must have completed Combined Arms Services Staff School (CAS3), 7 years of time in grade (TIG) as a captain, and an officer advanced course (OAC) on or before the convening date of the respective promotion board.

Paragraph 2-6 of the same regulation pertains to inactive and active status.  It states, in pertinent part that an officer removed from an active status before promotion is final (the effective date of promotion) will be removed from the promotion list (paragraph 3-17).  Removal will not be considered a nonselection.  If returned to an active status, the officer's name will not be placed on a promotion list or nominated for promotion unless again recommended by a selection board.  An officer returned to an active status after having been in an inactive status or retired status will not be considered for a Reserve of the Army promotion (mandatory or USAR position vacancy; or, in the case of an Army National Guard US (ARNGUS) officer, Federal recognition) until at least 1 year after the date of return to an active status.

Paragraph 3-17 pertains to removal from a promotion list.  It states that if an officer is determined to be ineligible for consideration due to removal from an active status before promotion was finalized, PERSCOM, Office of Promotion will verify the ineligibility and explain the basis for the officers' ineligibility to the Secretary of the Army.  The officer's name will then be removed from the promotion list and deleted.

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 Board notes the applicant's request that the RCSB honor his selection for promotion to major in accordance with the memorandum, dated 2 June 1995, Subject:  Selection for Promotion.

2.  The applicant was released from active duty 28 August 1993, in the rank of captain.  He was granted Federal Recognition in the FLARNG in the rank of CW2 on 8 November 1994.  He was considered and selected for promotion to major by the 1995 RCSB, which convened on 14 March 1995.

3.  The Board notes that on 14 March 1995, the convening date of the 1995 RCSB, the applicant was not in a commissioned status when he was selected for promotion to major, and was ineligible for promotion.  He vacated his commission by accepting a warrant officer appointment and assignment to the FLARNG.

4.  He was not in an active commissioned officer status before his promotion action was finalized.  His promotion was deemed invalid and his name was removed and deleted from the 1995 RCSB official results.  

5.  The applicant's PED was adjusted to 30 March 2001, after his tour in the FLARNG.  He was released from the FLARNG on 15 April 2001 and was transferred to the IRR and was reappointed in the rank of captain with an effective date and DOR of 15 May 2001.  He was considered but not selected for promotion to major by the 2002 RCSB, which convened on 4 March 2002.

6.  Based on the evidence provided and the advisory opinion provided by PERSCOM, he is not entitled to promotion to major by the 1995 RCSB.

7.  In order to justify correction of a military record, the applicant must show to 
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

__ea____  __kh____  ___tr___  DENY APPLICATION

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

INDEX

CASE ID	AR2002070399	
SUFFIX		
RECON		
DATE BOARDED	20020917	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR   active guard	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310		
2.		
3.		
4.		
5.		
6.