PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  9 January 2001
	DOCKET NUMBER:  AR1999031832

	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	
	Mr. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Eric N. Andersen		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 that his records be corrected to show that he was promoted to the pay grade of O6, that he be granted all back pay and allowances from the date he should have been promoted, and to show that he was retired in that pay grade.

3.  The applicant states that, had his complete record be viewed by the 1997 Reserve Component Selection Board (RCSB), he would have been selected for promotion by that board, placed in an O6 position, promoted to the pay grade of O6 prior to his separation from active duty, and retired in the pay grade of O6.  The promotion fiche that was seen by the board, when he was not selected, was different than the one he reviewed and was missing an officer evaluation report (OER).  He requested Standby Advisory Board (STAB) consideration and was selected.

4.  He submits a memorandum from his division chief at the time to show that he would have requested the applicant replace him when he retired; a memorandum from the assignments chief to show that all Active Guard/Reserve (AGR) officers promoted to pay grade O6 by the 1997 and 1998 promotion boards were assigned to O6 positions and there were still 10 positions not filled by an O6; and a memorandum from the Chief, Army Reserve (CAR) at the time to show that he would have been placed in a vacant O6 position had he been properly selected by the 1997 RCSB.

5.  The applicant’s military records show that he was a USAR lieutenant colonel with a date of rank of 13 September 1993 who was serving on active duty in an AGR lieutenant colonel position.  On 22 April 1997 the CAR extended the applicant on active duty for 11 months.  He was scheduled to complete 20 years of Active Federal Service (AFS) on 31 May 1997.

6.  Based on the required 5 years time in the lower grade his maximum years in service grade (MYIG) date for mandatory promotion was 12 September 1998.  Title 10, USC, section 14308 and Army Regulation (AR) 135-155, Promotions, authorize an earlier promotion date for certain individuals occupying positions of the higher grade.

7.  He was considered but not selected for promotion by the 1997 RCSB that convened on 15 July 1997.  The results of this board were published on 18 February 1998.  On 10 March 1998 the CAR extended the applicant’s AGR status until 30 June 1998.  A review of his promotion fiche from the 1997 RCSB revealed that an OER was missing that had previously appeared in the fiche that he had reviewed.  On 10 March 1998 the applicant requested reconsideration by a STAB based on material error.  The STAB that convened on 10 August 1998 selected him for promotion to pay grade O6 under the 1997 criteria and the Senate confirmed the promotion on 29 April 1999.

8.  The applicant was not eligible for promotion to the pay grade of O6 upon confirmation because, on 30 June 1998, he was separated from active duty after completion of over 20 years of AFS and transferred to the Retired Reserve on 1 July 1998 in the pay grade of O5.

9.  A memorandum provided by the applicant’s former division chief states that he was preparing to retire on 28 February 1999 with an actual departure from his assignment occurring on 2 September 1998 based on scheduled surgery and convalescence.  He was prepared to recommend the applicant as his replacement.  When the applicant was not selected for O6 he recommended another officer replace him.  There was still not a qualified O6 to fill his position.

10.  A memorandum from the chief of the applicant’s assignment management office states that, just prior to the time of the applicant’s retirement, there were ten O6 positions that were not filled with officers in the rank of colonel.

11.  A memorandum from the former CAR states that the applicant would have been assigned to one of his vacant O6 positions if he had been selected for promotion by the 1997 RCSB.  He also states that he placed every promotable lieutenant colonel from the 1997 board in a vacant O6 position and there were still ten positions left unfilled.  He supports the applicant’s request for retroactive promotion to the pay grade of O6 and retirement in that grade.

12.  A discussion between a member of the staff of the Board and personnel officers in the Office of the Chief, Army Reserve (OCAR) revealed that, when the O6 list is released, the slating of selected officers to fill vacant and projected losses takes place within 45 days.  It was also revealed that “double slotting” of a replacement O6 takes place up to 90 days prior to the loss of the incumbent and promotion of the replacement occurs on the date of their assignment to the O6 position.

13.  Additionally, an officer in OCAR that was familiar with the circumstances of this case stated that the applicant was programmed to replace his division chief in the O6 position if he had been selected for promotion, and that the position is still filled by a lieutenant colonel because of a lack of qualified colonels.

14.  Title 10, USC, section 14308(e)(1), provides the law for promotion of USAR officers selected under section 14502.  It provides that an officer who is on a promotion list convened under section 14502 may be promoted at any time to fill a vacancy in a position to which the officer is assigned.

15.  Title 10, USC, section 14502(b), provides the law for promotion reconsideration of Reserve Component officers by special selection boards based on material error in a prior consideration.  Section 14502 (e)(3) of the title provides that, if the report of the special selection board, as approved by the President, recommends promotion of a former officer who is not currently eligible for promotion, action may be taken by a correction board to correct an error or remove an injustice from that military record.

16.  Title 10, USC, section 1370(d)(3)(B), provides the law for the retired grade of a Reserve officer who is involuntarily retired above the grade of major by a provision of law based on age or years of service.  It provides that a person, who has completed at least 6 months of satisfactory service in grade, may be credited with satisfactory service in the grade in which serving at the time of such transfer.

17.  The Reserve Officer Personnel Management Act (ROPMA), a public law enacted by Congress on 5 October 1994, prescribes the policies and procedures to consolidate and modernize the laws that govern Reserve Component officers. The law became effective 1 October 1996.  Under ROPMA, the MYIG for a Reserve lieutenant colonel, in order to be eligible for promotion to colonel is 5 years, and that an officer selected the first time for promotion to the next higher grade may be promoted on or before the date that he/she completes the maximum service.

18.  A 30 March 1992 memorandum from the Office of the Deputy Assistant Secretary of Defense (Reserve Forces and Mobilization) authorized the CAR to retain AGR officers for a maximum of 2 years beyond 20 years of active federal service.

CONCLUSIONS:

1.  The applicant was selected for promotion to colonel under the 1997 criteria by a standby advisory board.  His earlier non-selection was determined to have been based on material error through no fault of the applicant.

2.  The applicant had been extended on active duty on two occasions based on the value of his services to the AGR program.  The Chief, Army Reserve has stated that he planned to utilize the applicant in an available O6 position had he been selected by the 1997 RCSB.

3.  Title 10, section 14308(e)(1) provides for the promotion of an AGR officer upon his assignment to a position calling for the higher grade.  Based on the facts of this case it appears that the applicant would have been assigned to the O6 position of Chief, Information Management Division, in OCAR effective 2 June 1998 as a programmed replacement for the incumbent and promoted to the pay grade of O6 effective 2 June 1998.

4.  It also appears equally likely that the CAR, within his authority to extend AGR officers beyond 20 years but not more than 22 years of active federal service, would have extended the applicant for at least 6 months from the effective date of his promotion.

5.  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 for the individual concerned be corrected by:

	a.  showing that he was promoted to the pay grade of O6 effective 2 June 1998;

	b.  showing that he was extended on active duty in his AGR status until 30 November 1998;

	c.  revoking his retirement order that separated him from active duty on 30 June 1998;

	d.  voiding his DD Form 214 (Certificate of Release or Discharge from Active Duty);

	e.  showing that he was entitled to and paying him all back pay and allowances due for active duty service in the pay grade of O6 from 2 June through 30 November 1998;

	f.  showing that he was separated from active duty in the pay grade of O6 on 30 November 1998 and transferred to the Retired Reserve on 1 December 1998 with the appropriate recomputation of his service;

	g.  issuing a new DD Form 214; and

	h.  showing that he is entitled to and paying him all pay due as a result of his retirement in the pay grade of O6 effective 1 December 1998.

BOARD VOTE:  

__mm___  __ea__  __cg___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Mark D. Manning__
		        CHAIRPERSON

INDEX

CASE ID	AR1999031832	
SUFFIX		
RECON		
DATE BOARDED	20010109	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.