MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            23 April 2002
	DOCKET NUMBER:   AR2001065234

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Mark D. Manning		Member	
	Mr. Thomas Lanyi		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:  In effect, that he be promoted to the rank of colonel.

APPLICANT STATES:  In effect, that he was nonselected for promotion to the rank of colonel because the promotion board did not have his completion certificates for the Quartermaster (QM) Officer Career Extension Course or the Command and General Staff Extension Course.  He contends that given his qualifications, he deserves to be promoted after having served for 30 years.

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

He was born on 12 July 1914 and was commissioned as a United States Army Reserve (USAR) second lieutenant on 11 June 1941.  He was ordered to active duty on 3 November 1942.  He remained on active duty and was promoted to the rank of major on 25 January 1946.  He was released from active duty (REFRAD) on 13 August 1946 and was transferred to the USAR Control Group (Ready), where he was promoted to the rank of lieutenant colonel (LTC) on 14 March 1951.

His records show that he completed the QM Officer Career Extension Course in May 1963 and the Command and General Staff Extension Course on 2 May 1967.  Both completion certificates are contained in his records.

His records also contain yearly notification letters sent to the applicant as early as May 1962, notifying the applicant that he had been considered for promotion and was not selected.  On 30 January 1967, the applicant dispatched a letter to the Office of Personnel Operations (Promotion Boards) informing them that he would complete the Command and General Staff Extension Course before 30 June 1967.  He indicated that if he was selected for promotion, he would be allowed to remain in the active USAR after June 1967.

On 31 July 1967, the Reserve Components Personnel Administration Center (RCPAC) dispatched a letter to the applicant informing him that the maximum service policy for retention in the Active Reserve, as outlined in Army Regulation 140-10, paragraph 10a (5) ©, required his removal from an active status in the USAR.  He was advised that he could elect transfer to the Retired Reserve, otherwise he would be discharged.

On 19 August 1967, he elected to be transferred to the Retired Reserve and also submitted a request for consideration to retain him in an active status, in lieu of transfer to the Retired Reserve.  He was 53 years of age at the time.

On 5 September 1967, he was issued a Notification for Eligibility for Retired Pay (20-year letter) at age 60 (12 July 1974).

On 29 September 1967, orders were published which transferred him to the Retired Reserve.  The orders also contained special instructions which indicated that in accordance with Section 3848, Title 10, United States Code, the applicant’s mandatory removal date was 10 August 1967.  He had 24 years, 9 months and 20 days of creditable service for Retired Pay and 33 years, 1 month and 5 days of service for pay purposes and commissioned service computations.

The applicant applied for and began receiving USAR Retired pay at age 60, effective 12 July 1974, in the rank of LTC.

Army Regulation 140-10 provides the provisions for removal from active status of USAR personnel.  It provides, in pertinent part, that USAR officers who are serving in the rank of LTC and have not been selected for promotion, will be removed from active status and transferred to the Retired Reserve (if requested and eligible) or discharged, when they complete 28 years of commissioned service if under age 25 at initial appointment or at age 53 if age 25 or older when appointed.  The regulation also provides for removal from an active status for reaching the maximum age, for failure to participate, for being twice nonselected for promotion or medical disqualification.

Army Regulation 135-155 provides policy and procedures regarding the promotion of USAR officers.  It provides, in pertinent part, that each officer in the zone of consideration by a mandatory selection board will be notified that they are being considered and informed to review their records.  Members of the selection boards are required to take an oath in which they state that they understand that by law, they are obligated not to divulge the proceedings or the results thereof pertaining to selection or nonselection of individuals, except to proper authority.

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.  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.

2.  The applicant reached the maximum years of service allowed under the regulatory guidelines and was properly transferred to the Retired Reserve per his request.  While the Board understands that he did not desire to terminate his service because he believed that he would eventually be selected for promotion, such is not a basis to remain in the active Reserve when maximum service has been reached.
3.  The applicant’s contention that he would have been promoted if the selection board had seen the completion certificates for his courses also appears to be without merit.  Not only did the applicant communicate this information to the selection board office, the documents were properly filed in his records.  

4.  While it is unfortunate that the applicant was not selected for promotion, his contention that he should have been selected, is at best speculative on his part; because like this Board, he does not have the advantage of reviewing all of the records of the eligible officers considered at the time to determine who was best qualified to meet the needs of the Army.

5.  Inasmuch as selection boards do not divulge their reasons for selection or nonselection, the Board must presume in the absence of evidence to the contrary, that the applicant received equitable and fair consideration by a duly constituted selection board.  Accordingly, the Board will not attempt to      second-guess their judgment based on the arguments submitted by the applicant.

6.  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

__mdm __  ___kak__  __tl_____  DENY APPLICATION

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

INDEX

CASE ID	AR2001065234	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/04/23	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900/ADV GRD	
2.		
3.		
4.		
5.		
6.