PROCEEDINGS

	IN THE CASE OF:          

	BOARD DATE:              13 May 2003
	DOCKET NUMBER:      AR2002081991

	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	
	Ms. Beverly A. Young		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Mr. Lawrence Foster		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, in effect, that he be granted involuntary separation pay.

3.  The applicant states that he was passed over twice for promotion to major and was denied separation pay because of his status as a U.S. Army Reserve (USAR) Officer.  He states that he declined Selective Continuation (SELCON) due to long term concerns over promotion and continued status on active duty.  He considered what would be best for his family and himself and left active duty in March 2000.  He states that Regular Army officers that were twice non-selected for promotion were offered the same choices of Selective Continuation or separation from active service, but received a compensation packet if they separated.  He states that he was recently informed by a fellow officer in his Reserve unit that the law had been changed to allow all officers regardless of commissioning source, to receive compensation if twice non-selected for promotion and declining SELCON.  

4.  In support of his application, the applicant submitted a PERSCOM Notification Memorandum, dated 25 February 2000; a SELCON Memorandum, dated 19 October 1999; a Request for Release from Active Duty Memorandum, dated 3 November 1999; an Endorsement of Early Release from Active Duty, dated 22 November 1999; his Reassignment Orders 342-004, dated 8 December 1999; his DD Form 214 (Certificate of Release or Discharge from Active Duty); his Officer Record Brief; three DA Forms 1059 (Service School Academic Evaluation Report); eight DA Forms 67-8 (U.S. Army Evaluation Report); and three DA Forms 67-9 (Officer Evaluation Report).

5.  The applicant’s military records show that he was commissioned as a second lieutenant in the USAR on 31 May 1988 and entered active duty on 29 September 1988 as an ordnance disposal officer.  He was promoted to the rank of captain on 1 October 1992.

6.  On 19 October 1999, The Adjutant General of the Army informed the applicant that he had been twice nonselected for promotion to the rank of major by a Department of the Army Promotion Selection Board.  He was also informed that he had been recommended for SELCON for a period of 3 years and the Secretary of the Army had approved the recommendation.  He was further informed that if he declined selective continuation, he would not be entitled to separation pay.

7.  The applicant acknowledged his receipt of the notification of SELCON and submitted his election to decline SELCON with the understanding that he would not be authorized involuntary separation pay.

8.  On 3 November 1999, the applicant requested release from active duty under the provisions of Army Regulation 600-8-24, chapter 5, paragraph 5-9, to be effective 1 March 2000.  

9.  On 22 November 1999, the Commander of the U.S. Army Soldier and Biological Chemical Command recommended approval of the applicant's request for early release from active duty.

10.  On 1 March 2000, the applicant was honorably discharged from active duty under the provisions of Army Regulation 600-8-24, chapter 5, based on miscellaneous and general reason.  He had served 11 years, 5 months and 2 days of total active service and was not authorized separation pay.

11.  A review of the applicant's evaluation reports reveal that he was an overall Top-Block officer who had completed the Combined Arms Staff and Services Staff course.  He had been awarded the Meritorious Service Medal, two awards of the Army Commendation Medal and four awards of he Army Achievement Medal.  There is no evidence of derogatory information contained in his personnel records.

12.  MILPER Message Number 99-068 announced the zones of consideration for the FY99 Major, Army Competitive Category Promotion Selection Board.  The message provided the zones of consideration for captains who were eligible for consideration for promotion to the rank of major.  It also provided specific instructions regarding what officers should do to prepare their records for review by the selection board and their right to submit correspondence to the president of the board.  It also informed them that the FY99 NDAA incorporated new changes to the law which provides that an officer twice nonselected for promotion to the next higher grade is not entitled to separation pay if the nonselections resulted from an officer who requested in writing not to be selected for promotion or who otherwise directly caused nonselection through written communication to the board.

13.  MILPER Message Number 00-078 announced the zones of consideration for the FY00 Major, Army Competitive Category Promotion Selection Board.  It includes the same information as MILPER Message Number 99-068 and included a notification paragraph which informed the eligible officers that a Selective Continuation (SELCON) Board might be conducted to allow captains not selected for promotion to remain on active duty.

14.  Title 10, United States Code, section 1174, provides the authorization for separation pay to officers who are involuntarily separated from the service.  The law in effect at the time provided in pertinent part, that RA officers who declined continuation on active duty were entitled to receive separation pay; however, OTRA officers who declined selective continuation were deemed to be voluntarily separating and were not entitled to separation pay.  Effective 30 October 2000, section 508 of the FY01 NDAA modified section 1174 to allow OTRA officers to decline selective continuation and receive separation pay for involuntary separation.

15.  Nondisability Separation Pay authority is provided for in Title 10, United States Code, Section 580.  It provides, in pertinent part, that the purpose of nondisabilty separation pay is to provide a lump-sum payment to Regular and Reserve officers involuntarily discharged or released from active duty short of retirement eligibility, either because of failure of selection for promotion, substandard performance of duty, misconduct, or moral or professional dereliction, or because the retention of such officers is not consistent with the interests of national security.  The separation pay is a contingency payment for an officer who is career committed but to whom a full military career may be denied.  It is designed to encourage him to pursue his service ambition, knowing that if he is denied a full career under the competitive system, he can count on an adequate readjustment pay to ease his reentry into civilian life. 

CONCLUSIONS:

1.  Records show the applicant had been twice nonselected for promotion to the rank of major during FY99.  

2.  The Board noted that the applicant was properly notified of his nonselection and was recommended for selective continuation on active duty.  

3.  Records show the applicant declined selective continuation and was separated from active duty on 1 March 2000.  In accordance with the applicable laws and regulation in effect at the time, the applicant was not entitled to separation pay at the time of his separation.

4.  The Board noted that the law was amended in October 2000 which authorized OTRA officers who declined selective continuation to receive separation pay for involuntary separation.

5.  The Board finds that, as a matter of equity, the applicant should be granted involuntary separation pay as an exception to policy, in effect at the time.

6.  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 be corrected by showing the individual concerned was involuntarily separated and was entitled, as an exception to policy, to involuntary separation pay due to his being twice nonselected for promotion to major.

BOARD VOTE:  

MKP____  TSK_____  LF______  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Margaret K. Patterson_
		        CHAIRPERSON

INDEX

CASE ID	AR2002081991	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030513	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT 	
REVIEW AUTHORITY	Mr. Schneider	
ISSUES         1.	136.0000	
2.		
3.		
4.		
5.		
6.