MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           3 July 2003                   
	DOCKET NUMBER:   AR2002083217

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Mr. Patrick H. McGann, 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:  In effect, that his 20-year mandatory retirement date (MRD) of 31 May 2003 be honored.

APPLICANT STATES:  That, as a two-time non-selection for promotion to Major, he was notified by letter, dated 4 September 2002, that his MRD had been established as 31 May 2003 based on his basic active service date (BASD) having been calculated as 15 April 1983; his BASD was established at the time he entered active duty as a commissioned officer on 21 December 1990.  Subsequent to that notification, the applicant was notified telephonically by the US Total Army Personnel Command (PERSCOM) that his MRD was recalculated as 31 March 2004.  The applicant states that he bought a home and a business in Mesa, Arizona, with the intent of being retired in that location on 1 June 2003.  He also points out that his BASD of 15 April 1983 was used to deny him advanced civil schooling when he applied for that program in the latter stages of his career.

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

He enlisted in the Arizona Army National Guard (AZARNG) on 22 August 1979 and served until honorably separated on 31 January 1982.  During that period, he served on active duty for training (ADT) from 24 March 1980 to 26 July 1980, a total of 4 months and 3 days of creditable active duty, and on other active duty for 1 month.

On 10 March 1982, the applicant enlisted in the Regular Army and served until honorably separated on 29 July 1988.  During this period, he was credited with 6 years, 4 months, and 20 days of active service, for a grand total of 6 years, 9 months, and 23 days of creditable active service.

Following his graduation from college in 1990, the applicant was commissioned from the Reserve Officers Training Corps (ROTC) program and appointed as a Second Lieutenant on 21 December 1990 and entered on active duty on the same date.  He is currently on active duty serving in the rank of Captain.

In a letter from the US Total Army Personnel Command (PERSCOM), dated 4 September 2002 and signed by The Adjutant General, the applicant was informed that he had received a second non-selection for promotion to Major by the FY02 selection board and, being within 2 years of retirement eligibility, must retire on his MRD of 31 May 2003.

In a PERSCOM memorandum dated 4 September 2002, the Chief, Retirement and Separations Section, notified the applicant that the MRD cited in The Adjutant General's letter was a "projected retirement date" subject to verification by additional documentation.  The applicant was asked to provide additional information.  Following a recomputation, his MRD was corrected to 31 March 2004.

In the processing of this case, an advisory opinion was obtained from the Chief, Officer Retirements and Separations Section, PERSCOM, which states, in effect, that the applicant’s BASD (sic) was improperly computed as 31 May 2003 based upon incomplete data at the time of his notification of his second non-selection for promotion to Major.  When complete information was received, a corrected BASD (sic) was computed as 31 March 2004.  The applicant was provided an opportunity to respond to the advisory opinion and he reiterated his position that the first date provided by letter, dated 4 September 2002, be honored as correct.

Title 10 U.S.C. §1405 states that only active creditable service may be used in calculating a member's eligibility for retirement.

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, it is concluded:

1.  The applicant was commissioned in the Regular Army on 21 December 1990. Prior to his appointment as a Second Lieutenant, he had served as an enlisted soldier in the Regular Army and as an enlisted soldier in the AZARNG.  During his enlisted service, he accumulated 6 years, 9 months, and 23 days of creditable active service.

2.  When he entered active commissioned service on 21 December 1990, the applicant's BASD was recalculated to account for his prior active duty enlisted service.  His BASD was incorrectly established as 15 April 1983 when it should have been established as 28 February 1984.

3.  When the applicant received his 4 September 2002 mandatory retirement letter, it incorrectly stated that his MRD was 31 May 2003.  However, the applicant received a second notification -- this one from the Chief, Officer Retirements and Separations Section, PERSCOM -- advising him that his MRD of 31 May 2003 was a "projected date" subject to verification.  After reviewing additional documentation provided by the applicant, PERSCOM corrected the applicant's MRD to 31 March 2004.

4.  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.  The law and applicable regulations clearly require 20 years of active service in order to qualify for retirement.  The applicant's erroneous BASD of 15 April 1983 was off by almost 1 year and would have given the applicant only 19 years and 2 months of creditable active service by his erroneous 31 May 2003 MRD.

5.  The applicant should not have acted on a "projected" MRD, but should have withheld post-retirement planning until a firm MRD had been established.  As an officer with nearly 20 years of experience, he should have known that the "projected" MRD in the 4 September 2002 mandatory retirement letter would not have given him the required years of active service to qualify for retirement. 

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

__rvo___  __kan___  __phm___  DENY APPLICATION

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

INDEX

CASE ID	AR2002083217	
SUFFIX		
RECON		
DATE BOARDED	20030703	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	136.0100	
2.		
3.		
4.		
5.		
6.