MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:           17 October 2000                   
	DOCKET NUMBER:   AR1999031683

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor 		Chairperson	
	Ms. Barbara J. Ellis 		Member	
	Ms. Linda D. Simmons 		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 that he was selected for promotion to Colonel by the CY 1996 Colonel APL selection board, with the resultant adjustment of his mandatory removal date (MRD) to                 4 March 2004.  

APPLICANT STATES:  That he had a delayed promotion to first lieutenant because of the non-availability of required military education courses, and later denied promotion to major after selection by a unit vacancy board because of a misinterpretation of regulations.  He was eventually promoted, but the long term effect delayed promotion consideration for all subsequent promotions by two years.  Had he been considered [and selected] for promotion by the CY 1996 Colonel promotion board, he would have been able to serve 5 years in the grade of Colonel, with a MRD of 4 March 2004, and 20 years of active federal service.   

At Tab A of the applicant’s brief, he states:

•	He was delayed promotion to first lieutenant on 21 August 1974 because he had not completed the officer basic course (OBC).  He stated that he was not scheduled for OBC by the Wisconsin Army National Guard between      August 1971 (the month and year of his commission) and December 1972, nor by the Army Reserve after his transfer to that component.  He finally enrolled in the nonresident OBC, completing all but 2 or 3 subcourses between September 1973 and September 1975; however, he could not complete the remaining courses as they were out of print.  Finally, the Inspector General convinced the Infantry School to issue a course completion letter so that he could be promoted.  He was promoted on 16 January 1976, 17 months after his mandatory promotion date, due to non-completion of an OBC.  The applicant provides a notional PED (promotion eligibility date) for all ranks through Colonel, had he received normal mandatory promotion consideration with his year group.  The delayed promotion to first lieutenant caused a two year delay for all subsequent mandatory promotions, preventing his consideration for promotion to Colonel by the CY 1996 board, which was governed by pre-ROPMA (Reserve Officer Personnel Management Act).
•	He met the requirements for consideration for promotion to major under the unit vacancy promotion system, and was recommended by his battalion commander on two occasions, first for the August 1985 unit vacancy board, at which time his packet was returned because of an administrative error; and then again for the December 1985 board, where his selection was denied.  He states that on the weekend of 14-15 December 1985 his battalion commander informed him that headquarters had determined that he was ineligible for promotion, even though he was selected by the board.  The rationale given him was that the regulation prohibited a unit vacancy promotion for officers pending orders to AGR (Active Guard/Reserve) status.  It wasn’t until after his promotion to Colonel that he discovered that the rationale was not supported by regulations.  
•	The rationale, still used today by the Army Reserve Command (USARC), is that unit officers may not be promoted if they are pending orders to AGR status, and that according to an official in the USARC, that rationale is based upon the unit vacancy promotion eligibility requirement to be geographically available, and upon the stated purpose for unit vacancy promotions, which is to fill TPU (troop program unit) vacancies.  That official stated that it would go against the intent of the regulation to promote officers who would not be filling the position for which selected.  That official stated that had he not gone on the AGR tour he would have been placed in the position, and promoted.
•	He was in the billet when recommended for the promotion, had been in the position since 1 August 1984, and continued in the position until                   15 February 1986.  He was geographically available [as required by regulation], there was no regulatory requirement to deny a unit vacancy promotion to an officer pending AGR status, and the only regulatory reasons for not promoting an officer selected by a unit vacancy board are if the officer transfers prior to the promotion, or if the vacancy no longer exists.
•	He did not transfer prior to promotion, and the vacancy continued to exist.  He was geographically available, and recommended by his commander.  Additionally, since his first promotion packet was returned because of administrative error, it was extremely likely he would have been selected and promoted in August 1985, before any discussion of an AGR tour.  Orders assigning him to an AGR status was not published until 17 December 1985, with an effective date on 15 February 1986.  He was in position on the date of the promotion [15 December 1985].  Furthermore, his assignment [to the AGR position] required confirmation from the university.  That confirmation did not occur until 13 January 1986.  Not only were the orders prematurely published on 17 December 1985, but the decision to deny the unit vacancy promotion was based upon the speculation that he would be selected for the AGR tour.  He was in fact, informed by the Army Reserve Personnel Center that if accepted by the university, he would be brought on tour sometime in FY 1986, likely during the summer cycle.
•	His unit vacancy promotion would not have dropped him from AGR consideration, in that the AGR billet was an 0-3/0-4 billet, and he was one of only a few candidates with a Masters degree, a requirement highly sought by many universities.
•	The unit vacancy promotion process is designed to promote unit officers into hard to fill positions, but the eligibility criteria applies only to what is fact on the day of board selection and day of promotion, not what may or may not occur at some future date.  He was denied promotion to major for unjust, non-substantiated and prejudicial reasons.  

The applicant went on to say, in paragraph 3 of Tab A, that if promoted to Major on 15 December 1985, he would have been eligible for mandatory consideration to lieutenant colonel on 14 December 1992, and as of the convening date of the selection board he had completed all the requirements for promotion to lieutenant colonel.  Had he been promoted to lieutenant colonel, he would have been considered for promotion to Colonel by the CY 1996 board, which met in July/August 1996.  At that time, he was fully qualified for promotion, and would have had a promotion eligibility date of 13 December 1997.  Those officers selected for Colonel by that board were still governed by pre-ROPMA rules, which allowed five years time in grade as a Colonel or 30 years commissioned service, whichever was greater.  Consequently, and assuming that he would have been selected for promotion by the CY 1996 board, he would be eligible for five years time in grade commencing with his promotion to Colonel on                 4 March 1999, changing his MRD to 4 March 2004, and allowing him to serve    20 years on active duty, and qualify for active duty retirement. 

In paragraph 4 of Tab A the applicant discusses the effect ROPMA had on himself, and other officers, stating that he made career decisions and family decisions based upon the old law, and that decisions made previously have been overcome [under ROPMA], and what was once the law, the ability to serve five years time in grade as a Colonel, is no longer so.  There was no “grandfathering” under ROPMA.  He states that he left his home state and his position in 1995 for a resident course at the Army War College, knowing that he would need to uproot his family at least twice more in two years, sell a home, and probably lose money.  He did this because he was counseled that if he successfully completed the Army War College, he was sure of being promoted to Colonel.  However, less than one year later, ROPMA became law, and with it his prospects of a 20 year active career.

He states that he is aware that the Secretary of the Army has waiver authority; however, has never used it.  Therefore, it does not seem likely that administrative remedies would be available to extend his MRD.

He states that his current MRD of 1 September 2001 does not allow him to reach 20 active federal years of service, as it is based upon ROPMA, which allows only 30 years of commissioned service as a Colonel.  His MRD is 14 months short of reaching an 18 year lock-in, based upon his basic active service date (BASD) of 30 October 1984.  That would only allow him to serve 2 1/2 years of the minimum 3-year time for retirement as a Colonel.  The first injustice, related to his mandatory promotion to first lieutenant, delayed promotion consideration for all future promotions by 2 years.  The second injustice, related to a denied unit vacancy promotion to major, continued the effect of the delayed promotion to first lieutenant.  Had he been promoted to major, the effect of the first injustice would have been overcome, and he would have been on track with his year group.  Granting his request would be consistent with other Title 10 requirements in that he would reach 20 years of active federal service prior to age 60 and before he attained 35 years of total commissioned service.   

The applicant submits a 13 October 1998 chronological statement of retirement points showing that he did obtain extension course points in his retirement year ending in September 1974 and again in his retirement year ending in         September 1975 (enclosure 2).  On 19 January 1976 the Infantry School notified the applicant that he successfully completed the Infantry Officer Basic Correspondence Course on 16 January 1976 (enclosure 3).

The applicant submits documents that show, in effect, that he was qualified for promotion to major by the December 1985 unit vacancy board (enclosures 4, 5, and 6 of Tab A).  He submits copies of three officer evaluation reports, in which his senior raters stated that he should be promoted then [at the time the reports were rendered].

The applicant submits a copy of E-mail correspondence between himself and an official in the Deputy Chief of Staff for Personnel Office (DCSPER) at USARC (enclosure 7), concerning his situation regarding the unit vacancy promotion, to include the opinion by that official that, “he would have been promoted had he not gone on the AGR tour,” and his statement that, “Unfortunately, it seems a case of bad timing as if the orders had come a month or two later you would have already been promoted and it would have been irreversible.”

He provides a copy of a certificate showing award of the Army Achievement Medal, a copy of the 17 December 1985 order placing him on an AGR tour with a reporting date of 15 February 1986, a copy of an academic evaluation report (AER) showing completion of Command and General Staff College on                 7 January 1991, a copy of an AER showing completion of the Army War College on 8 June 1996, a copy of an information paper concerning ROPMA, and an extract from Army Regulation 140-10 concerning removal from an active status for length of service [pre-ROPMA rules].  At enclosure 14 he provides a copy of E-mail correspondence between himself and the chief of the Personnel Division at USARC, in August 1996, in which that officer responds to the applicant’s questions concerning ROPMA.

He provides at Tab B a chronological list of promotions and other personnel actions (actual and notional).  At Tab C he provides a statement concerning the unit vacancy promotion board as it affected his situation.  This statement is certified by his former battalion commander, now an Army Reserve brigadier general.  At Tab D he provides a copy of a form showing that he was the S2/3 of the transportation battalion from 1 August 1984 until 15 February 1986.  

At Tab E-1 he provides a copy of computations of his MRD (notional) (pre-ROPMA), and at Tab E-2 a copy of computations of his MRD based upon ROPMA.  

EVIDENCE OF RECORD:  

The applicant enlisted in the Army National Guard for 6 years on                          6 September 1969.

The applicant was appointed a second lieutenant of infantry in the Wisconsin Army National Guard and extended federal recognition on 22 August 1971.  He accepted his appointment on 5 November 1971.  On 11 December 1972 he was discharged from the Army National Guard in order to accept an appointment in the Army Reserve.  He was promoted to first lieutenant on 16 January 1976, promoted to Captain on 15 January 1980, and promoted to major while in an AGR status on 14 January 1987.  He was promoted to lieutenant colonel with a date of rank of 13 January 1994.    

In a 28 February 2000 memorandum for record the applicant stated that the chief of the Personnel Support Division at the Army Reserve Personnel Command   (AR PERSCOM) had indicated that an injustice had been done concerning the applicant’s unit vacancy promotion, in that it was his understanding that as long as an individual was selected by a unit vacancy board, and in the appropriate billet on the day of the promotion, he should be promoted regardless of pending AGR status.

In a 1 March 2000 memorandum for record the applicant stated that an official of the Personnel Support Division/Board Support at the AR PERSCOM, also stated that the applicant had a strong case in his allegation that he was unjustly denied a unit vacancy promotion.  That official stated that his opinion was based upon his discussion with The Judge Advocate General (TJAG), when in the processing of the Army regulation concerning unit vacancy promotion, the command intended to insert verbiage in the revised regulation which would require an individual selected for unit vacancy promotion to be capable of remaining in the unit for up to one year in order for the individual to be promoted.  The language was never added to the regulation because the TJAG non-concurred, in that their opinion was that promotion eligibility was sufficient if the individual was in the unit vacancy position on the day of promotion.

In a 14 April 2000 statement, a Colonel in the Office of the Assistant Secretary of the Army (Manpower and Reserve Affairs) stated that the applicant would have remained eligible for the AGR position even though he would have been promoted to major in December 1985, and provided the rationale for his opinion.

Army Regulation 135-155, then in effect, provides policy and procedures used in the selection and promotion of commissioned officers of the Army National Guard and the Army Reserve.  Table 2-1 states that the service requirements for promotion to first lieutenant are 3 years as a second lieutenant.  Table 2-2 states that the educational requirements for promotion to first lieutenant are completion of any officer basic course.

Paragraph 2-9 provides for USAR unit vacancy selection boards, and states that promotion to fill authorized TPU vacancies may be filled through promotion of the best qualified and geographically available officers.  Procedures call for the TPU commander to forward to the Major U.S. Army Command (MUSARC) a listing of all officers eligible for promotion consideration.  The MUSARC will list all other eligible officers geographically available, and forward the list to the CONUSA (Continental U.S. Army) commander for unit vacancy promotion consideration.  The CONUSA commander will ensure that the intent of the unit vacancy fill procedures of Army Regulation 140-10, chapter 2, have been complied with before a unit vacancy promotion occurs.    

The USAR unit vacancy promotion system is designed to promote officers to fill vacancies in USAR units that cannot be filled by local commanders with qualified officers of the authorized grade.  Eligibility requirements include completion of the necessary service prescribed for promotion to the next higher grade by the convening date of the board (necessary service for promotion to major is 4 years in grade as a captain), and geographic availability to serve in the position as determined by the unit commander.  USAR commanders must nominate all eligible officers for consideration, but are not required to recommend any for promotion.

USAR unit vacancy selection boards will normally convene during the months of April, August, and December on the date announced by HQDA.  The effective date of promotion under the unit vacancy promotion system will be the 15th day of the month in which the selection board convenes or the date the selectee is assigned to the position, whichever is later.  An officer who is considered and selected by a unit selection board will not be promoted if he is transferred from the unit before the promotion is accomplished.  Nor will the officer be promoted if the vacancy no longer exists due to reorganization.

The applicant’s chronological record of retirement points that he submits with his application shows that he has 29 years of qualifying service for retired pay at age 60 as of his retirement year ending date of 5 September 1998, the last 12+ qualifying years on active duty.
 
Army Regulation 140-10, dated 1 September 1994 (pre-ROPMA), provides for removal of officers from an active status (discharge or transfer to the Retired Reserve) for length of service.  It states in pertinent part that Colonels will be removed 30 days after they complete 30 years of commissioned service if under 25 at initial appointment, or the fifth anniversary of appointment to colonel if that date is later than the date they complete 30 years of commissioned service.
However, officers having 18 or 19 years of qualifying service for retired pay will not be removed without their consent.  Officers who meet this criteria on the date removal is required will be retained to complete 20 years.

Army Regulation 600-8-24, dated 21 July 1995 (pre-ROPMA), provides, in pertinent part, for the release of officers from active duty due to maximum service, and states that an officer holding a permanent grade of colonel in the Reserve component will be released on the fifth anniversary of the officer’s appointment in that grade or 30 days after the date he completes 30 years of service, whichever is later.  However, an officer within 2 years of qualifying for retirement, prior to attaining maximum length of service will be retained on active duty and in an active status until the end of the month after he becomes eligible for retirement. 

In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from the Total Army Personnel Command at St. Louis.  An official of that command stated that there were no provisions to grant the applicant a waiver for the educational requirement for promotion to first lieutenant and to adjust his date of rank as a first lieutenant.  In that he did not complete his basic course until 16 January 1976, that date is his date of rank to first lieutenant.  That official stated that the applicant’s request for an adjustment to his date of rank to major was not within the purview of that command.

An advisory opinion (COPY ATTACHED) was obtained from the Office of the Chief of the Army Reserve.  An official at that agency stated that there was no documentation to support the applicant’s contention that he was either selected for promotion or was promoted.  That official stated that in December 1985 the applicant had a choice, either accept an AGR assignment, or wait for the results of a unit vacancy board to determine whether or not he was selected for a TPU vacancy, and that the applicant elected to accept the AGR position.  That official also stated that the regulation states that HQDA may remove the name of a soldier selected for unit vacancy promotion but who was transferred before the promotion was accomplished; and continued by saying that by voluntarily accepting an AGR position in 1985, the applicant was no longer eligible for consideration for the unit vacancy promotion to major.  That officer also stated that should the applicant be successful in being selected by the 1996 colonel mandatory promotion board, his date of rank would be no later than sometime in 1997, and his MRD under the ROPMA would be in September 2002, the later of 30 years of commissioned service and five years time in grade.

On 16 August 2000 the applicant provided a rebuttal (COPY ATTACHED) to the advisory opinions.  He provided at enclosure one to his rebuttal an interpretation of provisions contained in Army Regulation 135-155 (promotion of Reserve component officers).  He provided at enclosure two a copy of the Fourth U.S. Army report of the 3 December 1985 Unit Vacancy Selection Board, in which that report stated that it had reviewed the records of every officer submitted to it for consideration.  The report included a list of officers selected and not selected for promotion to major. The applicant’s name was not on either list.

The applicant states that the regulation requires that Reserve commanders must nominate all eligible officers for consideration, but are not required to recommend any for promotion.  He reiterated that he met all the eligibility criteria for a unit vacancy promotion, including being geographically available as determined by the unit commander having the vacancy, his battalion commander; and that officer submitted his name for promotion by both the August and December 1995 boards.  He was not considered by either board.  Results from the December board show that promotion orders were published on 13 December 1985 with an effective date of 15 December 1985.  The AGR tour for which he was under consideration was finalized on 13 January 1986, when the President of the University of Utah accepted his nominative assignment.  Orders published on    17 December 1985, although premature, were still after unit vacancy promotions were accomplished.  He was in a unit vacancy billet, not on orders for an AGR tour, and should have been promoted on 15 December 1985.  Since there were no other officers considered for his billet, and since he met all the qualifications for promotion, he would have been selected for promotion.  The command violated the regulation in not considering him for the unit vacancy promotion.

The applicant states that there was documentation to support his contention in the form of his sworn statement along with the affidavit provided by his former battalion commander; and the E-mail message from the official at USARC, who discussed his application with another individual, who was in Fourth U.S. Army in 1985, and who provided insight into the rationale that command used to deny his promotion consideration.

He states that he was never offered a choice, e.g., unit vacancy promotion or AGR assignment.  There was no guarantee of an AGR assignment.  He first learned of the denied promotion on 14 December 1985 from his battalion commander, who informed him of the command’s decision.

The applicant takes exception to the OCAR opinion that by voluntarily accepting the AGR position, he was no longer eligible for consideration for unit vacancy promotion to major.  He states that, whereas there are various reasons to remove a person from a selection list, none of those relate to a pending AGR tour; and whereas the regulation states that an individual may be removed from a list if the member transferred from the unit before the promotion was accomplished, he was in the billet on 15 December 1985, the date the promotion was accomplished.

He states that his delayed promotion to first lieutenant was due to factors beyond his control, and that while there are no waivers for educational requirements, he was forced to remain a second lieutenant for 17 months longer than other officers of his year group, delaying all future promotion considerations by two year groups.

He states that if it is determined that an injustice occurred by denying his unit vacancy board, he should not have to go before a special board for an earlier date of rank for lieutenant colonel and colonel, as advanced by AR PERSCOM and OCAR.  He states that since he has already been promoted to Colonel, a simple records screen would show that he met all the promotion requirements prior to the convening dates of mandatory promotion boards.  Whether or not the actual promotion dates are changed, however, is not an issue for him, as long as his MRD is adjusted.

He takes exception to the OCAR opinion that his maximum MRD prior to the ROPMA would be September 2002.  He states that date would be incorrect, and not calculated in accordance with Army regulations.  He states that had his promotion to major occurred at the unit vacancy promotion board, his effective date of promotion to lieutenant colonel would be 14 December 1992, and the effective date of promotion to Colonel would be 13 December 1997.  Therefore, his MRD would be on or about 13 December 2002, beyond the 18-year lock in date of 30 October 2002.  However, if the five-year time in grade provision were applied to his current promotion date to colonel on 4 March 1999, his MRD could be 4 March 2004, as stipulated in his application.

He states that there is something inherently unjust for a soldier to serve 30 highly successful years, most of which were on active duty, attain the rank of colonel, and ultimately be denied the opportunity to qualify for an active duty retirement, which is especially unjust in view of the violations and misinterpretations of regulations or unjustified actions on the part of his command, and more so if the denial was based upon a law change that occurred 25 years into a career.  He states that the law has changed the playing field, and the system has failed him.  He states that each promotion injustice was essentially corrected, when he got promoted to the next rank; however, the overall effect still remained and he continued to be delayed for normal promotion consideration.  

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(s), it is concluded:

1.  The applicant’s promotion delay to first lieutenant is noted.  His contention that he was not promoted to first lieutenant in 1976 was not his fault may be so; however, he has not provided any evidence to so substantiate, nor to show an injustice done him.                 

2.  The Board accepts the applicant’s arguments that he was qualified for promotion to major during the time of the December 1985 unit vacancy selection board, and that his battalion commander submitted his name for consideration for promotion by the board.  His statement that headquarters had determined that he was ineligible for promotion, even though selected by the board, is misleading, and the Board believes, an inadvertent choice of words by the applicant.  He was not considered, as shown by the Fourth Army board report; therefore, he could not have been either selected, or not selected for promotion by that board.

3.  The Board has considered the arguments advanced by the applicant concerning the unit vacancy selection board, especially those concerning the dates, e.g., the convening date of the board, the promotion date of the officers selected, the date of the applicant’s order for the AGR tour, and the date of the letter from the president of the university, approving his selection as an assistant professor of military science.  Consequently, it is conceivable that the applicant’s approval for the AGR tour occurred well before the convening date of the board, and the MUSARC acted accordingly, by removing the applicant’s name from consideration by the unit vacancy selection board.  If so, the MUSARC acted logically, because the applicant would not have been able to serve in that position.  Had he been considered and selected, the intent of the unit vacancy selection system, to select and promote officers in hard to fill unit vacancy positions, would not have been served.

4.  Nonetheless, he was not considered.  This Board is not convinced that he should have been considered, notwithstanding the applicant’s contentions.  Even were he considered, his selection, albeit his qualifications, is speculative.  Therefore, the Board does not accept the applicant’s request that he should have been promoted to major in 1985.  Since there is no basis to grant the portion of his request pertaining to his promotion to major, there is likewise no basis to grant the remaining requests concerning promotion to lieutenant colonel and colonel.  Consequently, there is no basis to change his MRD.

5.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

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

7.  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

___bje___  ___rvo___  ___lds__  DENY APPLICATION

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

INDEX

CASE ID	AR1999031683	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001017	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310	131.03	
2.	136.00	
3.		
4.		
5.		
6.