MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            1 April 2003
	DOCKET NUMBER:   AR2002078662

	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:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Thomas B. Redfern		Member	
	Mr. Thomas E. O’Shaughnessy, Jr.		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 he be paid involuntary separation pay for his active service.

APPLICANT STATES:  In effect, that he was unjustly denied separation pay after being twice non-selected for promotion to the rank of lieutenant colonel (LTC).  He further states that he was denied separation pay because he was selected for selective continuation (SELCON) to retirement and declined it; however, he was not eligible for such consideration because he was a conditional voluntary indefinite (CVI) officer and if selected for SELCON, he should only have been selected for a period of 3 years, because he only had 12 ½ years of service.  He goes on to state that he meets the criteria for involuntary separation pay prescribed by the Department of Defense Financial Management Regulation.  He also states that the Office of The Judge Advocate General (OTJAG) changed the way it managed SELCON from the normal practice of continuing officers in        3-year increments and such a change constitutes arbitrary and capricious action.

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

He was commissioned as a United States Army Reserve (USAR) second lieutenant on 26 May 1984 and was granted a delay in being ordered to active duty in order to complete an advance degree (attended law school).  He was ordered to active duty 3 January 1988, as an obligated volunteer officer (OBV) with a 4-year obligation and was detailed as a Judge Advocate General Corps officer.  He was promoted to the rank of captain on 1 August 1988 and to the rank of major on 29 April 1996.

He submitted his unqualified resignation and was honorably discharged on 6 September 1996.  He accepted a Reserve commission and was transferred to the United States Army Reserve (USAR).  He was not authorized separation pay.

On 31 July 1998, he was again ordered to active duty and was granted CVI status.  He was ordered to active duty in the rank of major.

On 16 April 2002, the Adjutant General of the Army dispatched a memorandum to the applicant informing him that he had been twice nonselected for promotion to the rank of LTC; however, The Secretary of the Army had approved his SELCON on active duty until retirement.  The memorandum also informed him that if he declined to accept SELCON he must separate not later than 1 August 2002.  Additionally, if he declined SELCON, he would not be entitled to involuntary separation pay as provided in the DOD Military Pay and Allowances Entitlements Manual.

The applicant declined SELCON and submitted a request for relief from active duty (REFRAD).  His request was approved for REFRAD effective 1 October 2002.  The approval of his request specified that he was not entitled to separation pay.  He was REFRAD on 1 October 2002 and was transferred to the USAR Control Group (IMA).  He had served 12 years, 8 months and 4 days of total active service.

Army Regulation 600-8-29 prescribes policies and procedures governing the promotion of Army commissioned and warrant officers on the active duty list.  It provides, in pertinent part, that subject to the needs of the Army, officers pending separation because of having been twice nonselected for promotion to the rank of LTC, may be selectively continued on active duty in their present grade; however, officers (except medical officers) in an OBV status are not eligible for SELCON.  Continuation for majors who are more than 6 years from qualifying for retirement will normally be for 3 years from the date the officer would otherwise have been separated for having twice failed to be selected for promotion, or the last day of the month in which the officer first becomes eligible for retirement, whichever is earlier.  However, the Secretary of the Army may adjust periods of SELCON.

Title 10, United States Code, section 1174, provides the authorization for separation pay to officers who are involuntarily separated from the service.  Effective 30 October 2000, section 508 of the FY01 NDAA modified section 1174 to provide, in pertinent part, that an officer who is subject to discharge by reason of having twice failed of selection for promotion to the next higher grade is not entitled to separation pay if that officer, after such second failure of selection for promotion, is selected for, and declines continuation on active duty for a period that is equal to or more than the amount of service required to qualify the officer for retirement.

The DOD Financial Management Regulation, also known as the DOD Pay Manual, provides, in pertinent part, that full separation is authorized for a member who is separated involuntarily through the denial of reenlistment or continuation on active duty.  Separation pay is not authorized for officers who decline SELCON on active duty for a period equal to or more than the amount of service required to qualify the officer for retirement.  If the period of time for which the officer was selected for continuation of active duty is less than the amount of service that would be required to qualify the officer for retirement, the officer's separation shall be considered involuntary. 

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 Board has noted the applicant's contentions that he was not eligible for consideration for SELCON and that as a minimum he should have only been offered SELCON for a period of 3 years and finds them to be without merit.  The applicant was a CVI officer, not an OBV officer and therefore was in fact eligible for consideration.  In regards to his being offered 3 years of SELCON vice SELCON until he reached retirement eligibility, the Department had the authority to tender such an offer if the needs of the service so warranted.  The applicant has failed to show through the evidence of record or the evidence submitted with his application that such was not the case or that he was treated unfairly. 

3.  The Board also notes that the applicant was provided notice that he would not be entitled to separation pay if he declined SELCON at the time he was notified that he had been twice nonselected for promotion.  Accordingly, the Board finds that at the time he elected to be REFRAD, vice SELCON to retirement, he made a conscious and informed decision regarding his entitlements. 

4.  Accordingly, the Board finds that he was properly REFRAD, without entitlement to separation pay, in accordance with the applicable laws and regulations in effect at the time, with no violations of any of the applicant rights.

5.  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

__teo ___  __tbr  ___  ___ao___  DENY APPLICATION

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

INDEX

CASE ID	AR2002078662	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/04/01	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  291	128.0800/SEP PAY	
2.		
3.		
4.		
5.		
6.