PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  20 November 2003
	DOCKET NUMBER:  AR2003085036

	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:

	Ms. Joann Langston		Chairperson	
	Ms. Linda D. Simmons		Member	
	Mr. Robert Duecaster		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, in effect, back pay from the date of his voided retirement to his return to active duty in the Active/Guard Reserve (AGR) Program. 

3.  The applicant states that he was on active duty in the AGR Program at the time of his involuntary retirement, but his Army Board for Correction of Military Records (ABCMR) Proceedings did not reflect this.  Consequently, he was denied back pay for the period of time that he was involuntarily retired.  Based on the explanation provided by the Defense Finance and Accounting Services (DFAS), the wording in the paragraph mentioned in Item 8 stated that he was to be restored to the “active Reserve” and to be credited with qualifying service.  This to DFAS meant that he was to be restored as a drilling Reservist, not a Reservist on active duty; therefore, they would not give him the back pay.  He also states that his retirement was voided by ABCMR and DFAS is now collecting $42,000.00, the amount of retirement pay that he received during the time that was involuntarily retired.  In support of his application he submits copies of his retirement orders, his ABCMR Proceedings, his selection board approval for promotion to chief warrant officer three (CW3), his orders revoking his retirement, his promotion orders for CW3, his Oath of Office, and his debt letter from DFAS.

4.  The applicant’s military records show that he was appointed in the Army Reserve as a CW2 effective 14 June 1993.  Based on the required 6 years time in grade, his promotion eligibility date (PED) for promotion to CW3 was 14 June 1999.

5.  He was considered and not selected for promotion to CW3 by the 1998 and 1999 Reserve Components Selection Boards.

6.  He was separated from active duty in the AGR Program effective 31 January 2000 for his two non-selections for promotion to CW3 and transferred to the Retired Reserve.

7.  Based upon review by the Office of Promotions, Reserve Components, the applicant’s official military personnel file (OMPF) contained material error when he was considered and non-selected by the 1998 Reserve Components Selection Board (RCSB).  His records did not contain several of his officer evaluation reports.

8.  On 6 January 2000, the ABCMR recommend that the applicant’s records be corrected to show all his OER’s on his OMPF and that following administrative implementation of the foregoing, his records be submitted to a duly constituted special selection board.  The Board also recommended that, if selected, his 

records be further corrected by showing he was promoted to the next higher grade on his date of eligibility and that if the applicant was separated because of his non-selection, his records be further corrected to show that his discharge or transfer to the Retired Reserve, was void, and of no force or effect; that he was credited with qualifying service for Reserve retirement for his respective retirement years, from the date of his now-voided transfer to the Retired Reserve to the date of his return to the active Reserve.

9.  On 3 May 2000, the applicant was considered by a special selection board (SSB) for promotion to CW3 under 1998 criteria.  He was recommended for promotion to CW3.  He was issued a promotion memorandum showing his date of rank for CW3 as 14 June 1999, his original PED.

11.  On 18 July 2001, his retirement orders were revoked.  He reverted back to his same duty status and immediately entered in the AGR program effective the same date.

12.  On 29 August 2002, DFAS informed the applicant that he had been overpaid retired pay between 2 February 2000 and 31 January 2001 based on the revocation of his retirement order.

13.  The Reserve Officer Personnel Management Act (ROPMA) provides that an officer who is considered for promotion and fails to be recommended will again be considered by the next board considering officers of his/her branch and grade. If the officer fails to be recommended on this second consideration, he/she will thereafter not be considered for promotion and will be removed from active Reserve status the first day of the seventh month following the final approval of the board report.

14.  The ROPMA also specifies that the earliest date of rank an officer may have is the approval date of the criteria under which they were recommended.  

15.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that officers selected by a SSB are eligible for the same date of rank that they would have received by the original board in which the error occurred.  The regulation further specifies that for warrant officers the effective date may not be earlier than the date of the promotion memorandum.  Accordingly, only the Secretary of the Army may determine whether an adjustment must be made to an officer’s effective date of promotion.  The effective date of promotion will be the date all qualifications for promotion are met.  

CONCLUSIONS:

1.  The applicant is entitled to further correction of his military records to show entitlement to back pay and allowances from 31 January 2000, the date of his now voided retirement to 18 July 2001, the date of his return to an AGR status.

2.  It is further noted that any pay and allowances received by the applicant while in the Retired Reserve be offset based on this records correction.

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

RECOMMENDATION:

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

a.  by showing the individual concerned  is entitled to back and allowance in the grade of chief warrant officer three from 31 January 2000 to 17 July 2001; and

b.  by offsetting the pay received by the applicant in his now voided retired status.

BOARD VOTE:  

__jl___  ___ls_____  ___rd____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Joann Langston___
		        CHAIRPERSON

INDEX

CASE ID	AR2003085036	
SUFFIX		
RECON		
DATE BOARDED	20031120	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.