MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:  

		BOARD DATE:           13 November 2003   
		DOCKET NUMBER:  AR2003087564

	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	
	Mrs. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian 		Chairperson	
	Ms. Eloise C. Prendergast		Member	
	Mr. Ronald E. Blakely		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 his records be corrected to show he was continued on the Reserve Active Status List (RASL) from 14 August 2002.

APPLICANT STATES:  That he was recalled to active duty and his orders did not state "retain on RASL."  He was selected for promotion to lieutenant colonel (LTC) by the Fiscal Year (FY) 2002 Army Promotion List (APL) subsequent to his entering active duty.  He has requested that his orders be amended to request continuation on the RASL; however, the Board must make that amendment retroactive.

As supporting evidence, the applicant provides U. S. Total Army Personnel Command (PERSCOM) orders A-07-293185 dated 1 July 2002 ordering him to active duty in the rank of major, with a reporting date to his active duty unit of    15 August 2002, with an active duty commitment of "obligated volunteer officer   3 years in a voluntary indefinite (VI) status;" PERSCOM orders A-07-293185A01 dated 22 July 2002 which amended his active duty orders to change his movement designator code; an extract from the National Defense Authorization Act for FY 2002; a copy of a chart entitled "ADL Status of Commissioned Officers Serving on EAD" on which he highlighted the section "Entry to EAD 28 Dec 01 and later/for a period of 3 years or less/and orders stipulate officer remain on RASL (NO)/on ADL? (YES*)" and "*Orders may be amended to place officer on RASL (Not retroactive)." 

The applicant also provides a 6 February 2003 email from Headquarters, Department of the Army, ASA-M&RA to PERSCOM, TAPC-MSL-B; 6/7 February 2003 email traffic between the applicant and PERSCOM, TAPC-MSL-B; a           6 February 2003 memorandum from the applicant to the U. S. Army Reserve Personnel Command (AR-PERSCOM), subject: Amendment of Orders to place (applicant) on the Reserve Active-Status List (RASL); and a 10 February 2003 memorandum from PERSCOM to Headquarters, Department of the Army (HQDA), G-1, subject:  Removal from Selection List.

EVIDENCE OF RECORD:  The applicant's military records are not available (the available fiche contains only one document).  Information contained herein was obtained from documents provided by the applicant.

The applicant was ordered to active duty in the rank of major with a reporting date to his active duty unit of 15 August 2002.  His orders show his active duty commitment as "obligated volunteer officer 3 years in a voluntary indefinite (VI) status."  His orders include the additional instructions, "Officer will be called to active duty in a voluntary indefinite (VI) status for a minimum three-(3) year initial active duty service obligation (ADSO)."

The applicant's orders further include in the additional instructions, "You are required to forward…to your PERSCOM assignment manager…" and "These documents … will be forwarded when completed to PERSCOM… for possible date of rank and promotion eligibility re-computation…"

The FY 2002 LTC Reserve APL promotion board convened on 4 September 2002.  The applicant was selected for promotion to LTC.  The board results were approved on 13 January 2003 and released on 4 February 2003.  The applicant has a promotion eligibility date (PED) of 28 January 2004.  

By memorandum to HQDA dated 10 February 2003, PERSCOM requested the applicant be removed from the FY 2002 LTC Reserve APL Selection List as he had been ordered to active duty on 15 August 2002 (prior to the board's convene date of 4 September 2002).

The National Defense Authorization Act for FY 2002 amended section 641(1)(D) of Title 10, U. S. Code to allow a Reserve officer who is ordered to active duty under section 12301 of this title for a specified period of 3 years or less to be continued on the RASL.  

In the processing of this case, an advisory opinion was obtained from the Office of Promotions, Reserve Components, AR-PERSCOM.  That office noted that the applicant's active duty orders did not stipulate that he remain on the RASL but do stipulate that PERSCOM would be his manager; therefore, he was deemed to have been placed on the active duty list (ADL).  Had that office been aware that he was on the ADL effective 15 August 2002, his name would have been removed from the list of consideration by the FY 2002 LTC Reserve Components selection list.  However, that office was not notified and he was erroneously considered for promotion.  If PERSCOM amends his orders to place him back on the RASL and the Board directs that the amended order be retroactive, the applicant could be promoted when he reaches his PED if he meets all other criteria as well.

A copy of the advisory opinion was provided to the applicant for comment and/or rebuttal.  He did not respond within the given time frame.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The Board notes the applicant's implied contention that, since he was ordered to active duty for a period of 3 years or less, he could be retained on the RASL.  

2.  However, the Board notes that the applicant's active duty orders state that he was called to active duty in a voluntary indefinite status for a minimum (emphasis added) 3-year initial ADSO.  In other words, he would not necessarily be required to be released from active duty at the end of the 3-year period.  
3.  Therefore, the Board concludes that the applicant does not meet the statutory requirement for discretionary retention on the RASL.  Rather, he falls under the criteria that his orders will not stipulate that he remain on the RASL and that he will be placed on the ADL.

4.  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

__aao___  __ecp___  __reb___  DENY APPLICATION

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

INDEX

CASE ID	AR2003087564	
SUFFIX		
RECON		
DATE BOARDED	20031113	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.