IN THE CASE OF: BOARD DATE: 27 October 2011 DOCKET NUMBER: AR20110011217 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: The applicant defers his request, statement, and submission of evidence to counsel. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests reconsideration of the applicant's earlier request for consideration for promotion to colonel (COL) by a special selection board (SSB). 2. Counsel states: * an official at the U.S. Army Human Resources Command (HRC) improperly and illegally issued him permanent change of station assignment instructions that forced him to retire * the applicant relied on misrepresented information from officials within HRC that forced him to choose between reassignment and retirement * the applicant submitted his retirement request under duress and inappropriate coercion * HRC acted arbitrarily and capriciously when it failed to exercise proper discretion and summarily denied him revocation of his retirement * the applicant's nearly 23 years of honorable service warrants consideration by an SSB as a matter of equity 3. Counsel provides voluminous documents from the applicant's official military personnel file which have previously been reviewed and include the following: * various DA Forms 1059 (Service School Academic Evaluation Report) * various DA Forms 67-8/9 (U.S. Army Officer Evaluation Report/Officer Evaluation Report) with allied documents where applicable * Certificate of Achievement * various certificates of awards, decorations, and badges * psychiatric evaluation and treatment memorandum, dated 30 December 2009 * DA Forms 3349 (Physical Profile), dated 13 October 2009, 15 December 2009, and 1 April 2010 * request for orders (RFO) * letters in support of his previous appeal, dated 15 December 2009 * email exchange * voluntary retirement request * response to the previous response to the advisory opinion * request to withdraw retirement request, dated 22 February 2010 * exception to policy request to rescind approved retirement, dated 22 March 2010 * email advising him of removal from Fiscal year 2010 (FY10) Maneuver, Fire and Effects (MFE) Promotion Selection Board (PSB) * previous application to the Board with supporting documents * previous Record of Proceedings * 2010 DD Form 214 (Certificate of Release or Discharge from Active Duty) * previously submitted letter from a U.S. Navy Rear Admiral to the President, FY10 Army Competitive Category PSB, dated 17 May 2010 * previously submitted email exchange between the applicant and the Commanding General (CG), HRC, dated 19 July 2010 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100019930 on 9 December 2010. 2. The applicant and counsel did not provide any new evidence. However, counsel provides a new argument which, although similar to the applicant's original argument, is considered a new argument and, as such, warrants consideration by the Board as an exception to policy. 3. The applicant was appointed as a second lieutenant in the Regular Army and executed an oath of office on 15 November 1989. He served in a variety of stateside and/or overseas assignments and he was promoted to lieutenant colonel (LTC) on 1 April 2005. 4. He served with Headquarters, Combined Forces Land Component Command, C-6 Office, Camp Doha, Kuwait, from October 2002 to November 2003. He was reassigned to the Armed Forces Inaugural Committee, Washington, DC, in November 2003. 5. On 15 May 2005, he completed a functional area transfer from the Signal Corps to Public Affairs. He was subsequently assigned to the Office of the Chief of Public Affairs (OCPA), Pentagon. 6. On 13 October 2009, he was issued a temporary physical profile with an expiration date of 14 December 2009 for an adjustment disorder with anxiety and depressed mood and overweight. The profile placed a restriction on taking the Army Physical Fitness Test or body fat measurement, but it did not restrict reassignment or deployment. A health record, dated 23 October 2009, shows the applicant was diagnosed with recurrent moderate major depressive disorder. 7. On 17 November 2009, the applicant was issued an RFO by his assignment manager at HRC for a permanent change of station (PCS) reassignment to Fort Riley, KS, with a reporting date of 1 December 2009. 8. It appears he inquired with his assignment manager about retirement in lieu of PCS. Accordingly, on 10 December 2010 in response to his email to an HRC official, the official notified him that his retirement paperwork had to be submitted within 30 days of the original notification date (of the RFO), i.e., by 17 December 2009. The official added that the temporary physical profile was between him and his medical provider and that for the most part it seemed "folks have worked it out so they can deploy but also mitigated the health risk." 9. On 14 December 2009, the applicant was issued another temporary physical profile with an expiration date of 15 March 2010 for single-episodic moderate major depressive disorder. The profile stated "patient should not have access to weapons or alcohol during this acute phase of treatment." 10. On 15 December 2009, the applicant submitted a request for voluntary retirement in lieu of PCS with an effective date of 31 May 2010. He indicated he had been counseled and understood that if his application were accepted by the Secretary of the Army, it could not be withdrawn except for extreme compassionate reasons or for the definitely-established convenience of the government. 11. On 18 December 2009, he submitted a request to withdraw his voluntary request for retirement and requested to be allowed to continue to serve in his current capacity until his treatment was complete on or about 15 March 2010. He indicated he did not want to retire and that he was compelled to put forth a request for retirement in lieu of accepting PCS orders to Fort Riley, KS. 12. On 30 December 2009, his psychiatrist recommended that his RFO be rescinded until the expiration of his temporary physical profile on 15 March 2010. 13. On 21 January 2010, his request for voluntary retirement was approved. 14. On 1 March 2010, he submitted a request to withdraw his approved retirement. However, on 17 March 2010, his request was disapproved. 15. On 23 March 2010, he submitted a request for an exception to policy to revoke his approved retirement in lieu of PCS in order to allow him to continue to serve in his current capacity until treatment was complete. His letter states, "I accept responsibility for not discussing my medical issues with my branch manager sooner which, if I had, could have prevented some of the confusion. However, due to the stigma attached to depression, medication, etc., I was hesitant as to the response I would receive. Due to some of the issues mentioned above, I believed there was no other choice but to submit a retirement in lieu of PCS to continue my mental health treatment." Brigadier General (BG) L____ M. B____, the Chief of Public Affairs, recommended approval of the applicant's request for withdrawal of his previously approved retirement request. 16. On 9 April 2010, HRC approved a 90-day extension to cover the time frame of the applicant's temporary physical profile. This changed his retirement date from 31 May 2010 to 31 August 2010. 17. On 6 May 2010, a system-generated email notified him that he had been removed as a candidate from the FY10 MFE PSB and to contact his career manager at HRC if he had any questions. 18. On 8 June 2010, Major General (MG) S____ J. B____, CG HRC, notified the applicant that his request to change his approved retirement in lieu of PCS had been reviewed as an exception to policy and was disapproved. 19. Accordingly, he retired in the rank of LTC on 31 August 2010. His DD Form 214 shows he completed 22 years, 11 months, and 27 days of creditable service. 20. An advisory opinion was previously obtained on 23 September 2010 from the Chief, Officer Retirement and Separations Branch, HRC, in the processing of this case. a. Paragraph 2a states the applicant was placed on RFO on 17 November 2009 for assignment to Fort Riley [with a reporting date of 1 December 2009]. He submitted his retirement request on 17 December 2009. His request was approved on 21 January 2010. b. Paragraph 2b states he submitted a request to withdraw his approved retirement on 1 March 2010. On 17 March 2010, his request for withdrawal was disapproved. c. Paragraph 2c states the applicant submitted a request for an exception to policy to rescind his approved retirement in lieu of PCS based on a temporary physical profile on 23 March 2010, the. On 12 March 2010, the applicant was seen by his physicians and an additional 90 days was added to the original temporary physical profile, dated 30 December 2009. The applicant never provided copies of his medical profiles in previous applications submitted to HRC. The applicant stated in his request for exception to policy, "I accept responsibility for not discussing my medical issues with my branch manager sooner which, if I had, could have prevented some of the confusion." His request for exception to policy to rescind his approved retirement was disapproved. On 9 April 2010, HRC approved a 90-day extension to cover the time frame of the applicant's temporary physical profile. This changed the applicant's retirement date from 31 May 2010 to 31 August 2010. d. Paragraph 2d states HRC received a fourth request from the applicant on 25 May 2010 for a date change to his approved retirement in lieu of PCS. This request was denied by HRC on 8 June 2010. e. Paragraph 2e states after a thorough review of the applicant's medical records, temporary physical profile, and discussion with all his medical providers, the Office of the Surgeon General (OTSG) rendered a decision on 20 July 2010 that there were no limitations to the officer continuing service. On 21 July 2010, the HRC Retirements Branch notified the applicant of the decision to approve the request for withdrawal. Furthermore, he was advised that due to previous requests being answered and closed, he would need to submit a new application for withdrawal. That same day, the applicant responded that unless he was to be seen by an SSB for O-6, that he would continue with out-processing and retire effective 31 August 2010. According to the legal opinion from the Office of the Judge Advocate General to Headquarters, Department of the Army (HQDA), G-1, the applicant was not eligible for an SSB. f. Paragraph 3a states the applicant contends he was compelled to make a decision between his health and retirement and that the forced retirement rendered him ineligible to compete in the June 2010 COL promotion board. However, until his third submission to HRC, he had not provided any documentation to HRC informing the command of his medical condition. Therefore, HRC acted in accordance with regulatory guidelines. When HRC was made aware of the applicant's medical situation, the command acted in good faith and in the best interest of the applicant and granted an extension. g. Paragraph 3b states the applicant claims that had HRC adjusted his PCS date until after the temporary physical profile expired and he had been allowed to PCS, he would have been eligible to compete for COL. HRC responded that per Army Regulation 600-8-24 (Officer Transfer and Discharges), paragraph 6-17(f), it is very clear as to the requirements of a retirement in lieu of PCS in that "once a retirement is approved, the appropriate career management division will revoke the PCS orders and notify the officer. The retirement will not be withdrawn nor will the effective date of the retirement be extended." Officers who have an approved retirement date 90 days from the board convening are not eligible to be seen by the board. The responsibility and issues related to an officer being competitive for a promotion board lies with the officer when he/she is making career decisions. All the applicant's requests to HRC were clearly and solely based on medical issues. At no time did any of his requests address issues of promotion board eligibility. Decisions pertaining to his request were based on regulatory requirements as stated in Army Regulation 600-8-24. h. Paragraph 4a states the applicant contends the RFO should not have been issued. HRC stated the RFO was issued because the applicant did not provide a copy of his temporary physical profile to his assignment officer until after the RFO was issued. Therefore, the branch/division was unaware of his status. i. Paragraph 4b states the applicant contends the Chief of Public Affairs recommended approval of his request for retirement reversal. HRC stated that an officer's chain of command recommends approval or disapproval of the request. The approval authority is the CG, HRC. The applicant's request was appropriately reviewed and disapproved. j. Paragraph 4c states the applicant contends his medical provider requested his extension to complete surgery/recovery which would have made him eligible for the June 2010 COL promotion board. HRC stated the applicant submitted a request for a date change due to an elective surgery. An officer's physicians can make a recommendation; however, the approval authority is the CG, HRC. On 8 June 2010, the appropriate authority disapproved his request for a date change. k. Paragraph 5a states that once the applicant had exhausted all avenues related to his medical profile, only then did he raise the issue of the June 2010 COL promotion board. Furthermore, he only addressed his concerns through emails and consistently jumped the chain of command conveying different messages to different personnel at various levels, to include the Vice Chief of Staff of the Army (VCSA). HRC leadership worked with the officer, his chain of command, and various agencies to ensure the officer was given all proper considerations. l. Paragraph 5b states that after a thorough review of the applicant's medical records, temporary physical profile, and discussion with all his medical providers, OTSG rendered a decision on 20 July 2010 that there were no limitations to the officer continuing service. In conjunction with this finding, the CG, HRC, conveyed his intent to approve the applicant's withdrawal. The applicant was informed of the decision and he was further informed that once the withdrawal action was completed, he would be placed on assignment and further deployed. m. Paragraph 5c states the HRC Retirements Branch notified him of the decision to approve the request for withdrawal on 21 July 2010. He was also advised that due to previous requests being answered and closed, he would need to submit a new application for withdrawal. That same day, the applicant responded that "unless he was to be seen by an SSB for COL he would continue with out-processing and retire effective 31 August 2010." According to the legal opinion from the Office of the Judge Advocate General to HQDA G-1, the applicant was not eligible for an SSB. n. Paragraph 6a states HRC has worked diligently with the applicant over the past year while processing his multiple requests with proper due diligence. As stated previously, all of his requests have been based on medical conditions. HRC has gone above and beyond to do what was best and right for the applicant and the Army. However, it has become apparent the applicant's ultimate goal and major motivation through these requests was to have his retirement reversed in order to be seen by the June 2010 COL promotion board instead of taking care of his medical needs. o. In paragraph 6b, the advisory opinion recommended that based on regulatory and legal guidance, documents provided, information provided above, and ultimately the applicant's own decision to retire, the applicant's approved retirement in lieu of PCS stand and not be revoked. As a retiree, the applicant can continue to be treated for all medical needs. Therefore, a revocation of his retirement is not justified or warranted. 21. On 1 November 2010, the applicant submitted a rebuttal together with various attachments/statements of support that had been previously discussed. He essentially reiterated his previous contentions and stated (in summary): a. Regarding paragraph 2a, HRC's rebuttal letter does not fully disclose the situation surrounding the RFO. HRC does not mention these orders had a reporting date of 1 December 2009 and were PCS orders. His entire chain of command had knowledge of his temporary physical profile prior to issuing the RFO. HRC never checked his profile forms. After his RFO was revoked and his retirement was approved, MG S____ J. B____ and HRC chose not to fill the position at 1st Infantry Division. His retirement memorandum was submitted on 17 December 2009, not in 2010, and with that memorandum was a personal memorandum of duress. HRC does not mention the memorandum of duress. b. Regarding paragraph 2b, 2 days before his final out-processing he was offered withdrawal of his approved retirement. HRC could have honored the local commander's request in March 2010 to reverse his retirement under the same guidelines referenced in the paragraph. If HRC had used this regulation to support his retirement reversal in March 2010, he would have had his retirement reversed, completed his medical treatment less than 1 month later, and been available for any and all assignments. He would still be serving the Army in any capacity that the Army had requested of him and been boarded for promotion in due course. Instead, HRC used the regulation to compel him, a low density specialty officer whom the Army had invested in significantly, into retirement. c. Regarding paragraph 2c, HRC's comments are absolutely inaccurate. He did not ask to have his approved retirement rescinded; he requested a change in retirement date to accommodate his recovery. Since HRC did not include the email recommending disapproval of his request in their correspondence, he sincerely doubts its existence. His original temporary physical profile for depression was generated in October 2009. His branch manager has had copies of all of his physical profiles since the day he contacted him about his pending RFO. He believes he exercised due diligence in regard to his temporary physical profile. Orders were never issued to him, only an electronic RFO. His retirement rescission request was endorsed by BG L____ M____ B____ and HRC chose to ignore the local commander's rescission request and to extend him instead. d. Regarding paragraph 2d, this paragraph is inaccurate. It was his third request for a date change to his approved retirement, not fourth. It was not simply "elective foot surgery" as stated in the advisory opinion, but a significant surgery in the course of his recovery. HRC disapproved his extension after his surgery while he was on convalescent leave. He ended up retiring from the Army in a walking boot without any physical therapy scheduled in the Army medical system. e. Regarding paragraph 2e, HRC never informed him it was considering retirement withdrawal. HRC did not: * consider his "final out" * recognize he had a new temporary "3" physical profile for his left foot surgery and he was still in a cast * recognize his doctor asked for 9-12 months of recovery time post surgery * discuss the fact it had removed his file from O-6 consideration or how he was to be boarded now that he was having his retirement reversed * discuss any new assignments with the Army's CPA f. Regarding paragraph 3a, his entire chain of command and HRC's representative were well-informed of his temporary physical profile well before issuing his RFO. g. Regarding paragraph 3b, despite the regulation cited, HRC did in fact extend him on active duty past his original retirement date and he was offered withdrawal of his retirement 72 hours from his final out-processing in July 2010. His approved retirement date was only on record because: * HRC compelled him to retire in lieu of PCS; had it honored his temporary physical profile he would have continued his career and in doing so been eligible for the 2010 COL promotion board * HRC refused to address his eligibility when revoking his retirement * after reporting back to OCPA, BG L____ M. B____ indicated he had a call to MG S____ J. B____ to discuss how this reversal would affect his assignments and the June 2010 COL promotion board * the results of this board were not released until the last week of October 2010, plenty of time to have his file considered h. Regarding paragraph 4a, this is not accurate. Everyone who should have been aware of his temporary physical profile was aware. He did take it upon himself to provide his profile to his chain of command and he verbally informed his branch manager before the manager sent the electronic RFO. The orders were never issued. HRC had 31 days to review his file including temporary physical profile and recognize that something was amiss when an RFO is issued to PCS a Soldier in 8 days over a major Federal holiday. Additionally, it would have become obvious there was no PAO position open where his RFO was sending him. In those 31 days, this RFO could have been deleted and there would have been no cause for him to request retirement. i. Regarding paragraph 4b, BG L____ M. B____ endorsed his request to rescind his retirement because he was aware of MG S____ J. B____'s command climate and that MG S____ J. B____ had rushed sending him an RFO as he was en route to retiring. He points out that although all officers are not necessarily afforded the opportunity to meet with the CG, HRC, he had been offered to request a meeting with MG S____ J. B____ under the open door policy. The HRC's executive officer sent him an email on 10 June 2010 scheduling an appointment with MG S____ J. B____ for 15 June 2010. On 15 June 2010, approximately 3 hours before his appointment, his appointment was cancelled and he was told MG S____ J. B____ had no obligation to see him under the open door policy since he was not in MG S____ J. B____'s command. In July 2010, the CG, HRC, ignored Army Regulation 600-8-24 and offered to reverse his retirement. He did this because HRC, not the CPA, wanted to replace an LTC in the XVIII Corps PAO. This retirement reversal was only provided because HRC was crunched to find an LTC for this position. j. Regarding paragraph 4c, the surgery was not elective as per the surgeon's memorandum. Again, HRC made an assumption that he was trying to "game the system" by having elective surgery. Instead, he was trying to get healthy before retirement. Finally, the Army has plenty of latitude in regard to extending retirement dates to ensure the Soldier can recover on active duty. HRC disapproved this extension because he would have remained on active duty past 31 August 2010 and his file would have been eligible for consideration by the June 2010 COL promotion board. HRC's decision rushed him out of the Army in a walking boot without affording him the opportunity to recover or seek physical therapy. k. Regarding paragraph 5a, his goal was to get healthy. He provided his temporary physical profile to his chain of command in plenty of time and he informed his assignments officer prior to him electronically sending him an RFO. All of his correspondence for all events was sent through his chain of command. The day his retirement memorandum was signed, MG S____ J. B____ knew he was under mental health care. After speaking with his assignments officer and exhausting his attempts within HRC and MG S____ J. B____, he visited the HRC Inspector General (IG). The HRC IG completed a formal inquiry and called him to tell him the right thing for his assignments officer to do was, in fact, to delete the RFO. It was within HRC's discretion to delete the RFO, but nothing in any regulation compelled deletion. He requested the HRC IG inquiry results, which was denied. Finally, he never skipped the chain of command to contact the VCSA. Instead, he took the time to consult a mentor, a retired general, who in turn discussed his situation with senior Army leaders. His only direct correspondence to the VCSA was a letter after his final out-processing thanking him for his interest and offering him his support should he need to convene a working group in regard to troops with mental health issues. He takes great umbrage at the wording in this paragraph that he was unprofessional enough to jump the chain of command. l. Regarding paragraph 5b, he was never informed that HRC was consulting OTSG and that consideration for reversing his retirement was ongoing. He accepted the retirement withdrawal and was very clear in telephone conversations that he was interested in how his file would be boarded. HRC had more than 5 weeks to give him an answer about being boarded or an SSB while he was on leave. HRC refused to provide any answers until this advisory opinion. HRC's discussion regarding his PCS indicated that HRC was still not considering the fact that he was immobile due to surgery on his left foot. There is no question that HRC was aware he was recovering because they had previously denied an extension for his foot surgery recovery. Again, he would gladly have moved, but he was under a temporary physical profile for his leg so he couldn't go for some time. HRC did not give him any exact dates for reporting so he couldn't even work out the timeline with his doctor within the parameters of his profile. HRC doesn't assign PAO's, the CPA does. After reporting back to his unit, he was told by his rater he was going to be the Media Relations Division Personnel Team Chief in the Pentagon. At that time, his rater discussed with him that BG L____ M. B____ was considering sending him on temporary duty to Fort Hood, TX, to work the media operations surrounding an officer's trial if his retirement were reversed. Again, the CPA assigns PAO's and if HRC had taken the time to keep the OCPA chain of command up to date, there would have been little confusion. No one from HRC did that – the staff called or emailed him and he had to inform his chain of command. Obviously, an LTC telling his senior leaders that HRC had a different plan for him didn't go over particularly well. m. Regarding paragraph 5c, the first two sentences of this paragraph are accurate. He simply wanted to know if or how he was to be boarded and he expected an answer prior to his official retirement from active duty on 31 August 2010. This advisory opinion is the first time he was aware that a legal opinion about him going before an SSB was being researched in his case. Frankly, he gave this decision due diligence in regard to honoring the age-old adage that "the person looking at you in the mirror is most responsible for your career." Again, he had no idea until now that HRC was garnering a legal opinion on getting him an SSB. Instead, he was a passed-over LTC in a cast/walking boot making a career decision – and all HRC had to do was give him the information he needed to make a rational decision for his future. HRC ignored his request and then hoped it would never hear from him again after his "final out" on 23 July 2010. n. Regarding paragraph 6a, HRC has not been diligent in the past year with regard to his file. Instead HRC did: * ignore a mental health profile and tell him it was between him and his doctor * compel him to make a decision between "retire in lieu of PCS" or take a non-existent position * ignore the CPA's request to withdraw retirement and offer what HRC deemed was appropriate – an extension only * make decisions in a time frame that only caused more confusion * create an unfavorable impression of him by reaching out to a COL after he requested an extension to recover from foot surgery and telling him he should change his mind because he was trying to "game the system" by having surgery * use Army regulations when it suited HRC's desires/requirements only, not in accordance with CPA's guidance, not in accordance with his command's needs, and never were his needs considered o. HRC did two things throughout this ordeal that are indicative of the unprofessionalism and disorder that, unfortunately, have marked his thoughts on this command. He believes personnel in HRC blatantly attempted to disparage his service. A very senior GS-15 in a position senior to his assignments officer took it upon himself to inform personnel outside of the Army about his mental health profile and the fact he was prescribed Prozac. He believes HRC was very sloppy in regard to his privacy in general. p. Regarding paragraph 6b, he completely non-concurs with this recommendation. Again, it is his assertion that HRC used the regulation to ensure he was not allowed to complete treatment for any of his medical issues and certainly not be seen by the promotion board. Additionally, his privacy was violated by HRC. Ultimately, it was not his decision to retire. Instead, he signed out on leave. He was on leave for 5 weeks while he patiently waited and continued to discuss his situation with his chain of command. HRC chose not to answer any of his queries in regard to having missed the promotion board or how he would be boarded in the future. The American Red Cross has afforded him an opportunity to continue seeing his surgeon on an out-patient basis and not the Army. Moreover, any follow-up treatment will compel him into the VA system and away from his surgeon. Poor judgment on the part of HRC officials compelled him to make decisions that impacted continuance of his career and took away any opportunity to be boarded for promotion. He should not have been compelled to make a decision to PCS or retire. Since his recovery is almost complete, he requests the ABCMR consider his request to compete before an SSB and provide an opportunity to get promoted and continue serving for the good of the Army, particularly since the Army chose to heavily invest in his education. His career was well on track until he was placed under a mental health profile. From that point forward, MG S____ J. B____ and HRC worked diligently to ensure he could not continue his career unless he ignored his health issues. Fortunately for him, MG S____ J. B____ retired and his new chain of command has been super supportive in helping him get his career back. 22. Army Regulation 600-8-24, paragraph 6-17 (Rules for Processing Retirement in Lieu of Permanent Change of Station) states an officer may request retirement in lieu of PCS when he or she has at least 19 years and 6 months of active Federal service and a firm PCS alert is received. The retirement request must be submitted within 30 calendar days of the alert. The retirement will not be withdrawn nor will the effective date of the retirement be extended. 23. Army Regulation 600-8-29 (Officer Promotions) prescribes the policies and procedures for promotion of commissioned officers on the active duty list (ADL). Paragraph 1-10e (Promotion Eligibility) states that officers whose established separation or retirement date falls within 90 days after the date on which the board is convened are not eligible for consideration by a promotion selection board. Additionally, chapter 7 provides for SSB's. It states SSB's may be convened under Title 10, U.S. Code, section 628, to consider or reconsider commissioned or warrant officers for promotion when HQDA discovers one or more of the following: a. an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error. This would include officers who missed a regularly scheduled board while on The Temporary Disability Retired List and who have since been placed on the ADL (SSB required); b. the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary); or c. the board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary). 24. Material error in this context is one or more errors of such a nature that in the judgment of the reviewing official (or body) it caused an individual's non-selection by a promotion board and that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion. An officer will not be considered or reconsidered for promotion by an SSB when an administrative error was immaterial or the officer, exercising reasonable diligence, could have discovered and corrected the error in his/her official records. An officer will also not be considered or reconsidered for promotion by a SSB when letters of appreciation, commendation, or other commendatory data for awards below the Silver Star are missing from the record. DISCUSSION AND CONCLUSIONS: 1. The applicant was placed on assignment instructions to Fort Riley, KS. He had an option to comply with the PCS reassignment or submit a voluntary request for retirement in lieu of PCS within 30 days. He did the latter. He was neither forced nor coerced into retirement. 2. His request for voluntary retirement was approved and he was scheduled to retire on 31 May 2010. By regulation, officers whose established retirement date falls within 90 days after the date on which the board is convened are not eligible for consideration by a promotion selection board. Once he had an approved retirement, he was no longer eligible for consideration by the June 2010 COL promotion board. 3. He submitted several requests to rescind his approved retirement. Although it became apparent that his ultimate goal and major motivation through these requests was to have his retirement reversed in order to be seen by the June 2010 COL promotion board instead of taking care of his medical needs, officials at various levels of his chain of command and various officials at HRC worked diligently to accommodate his requests. His retirement date was ultimately extended to 31 August 2010 to ensure he was given proper medical care when HRC was made aware of his medical situation. 4. The applicant and counsel seem to misunderstand the intent of the SSB. In order to support an SSB, there must be a material error. Material error in this context is one or more errors of such a nature that in the judgment of the reviewing official (or body) it caused an individual's non-selection by a promotion board and that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion. The applicant was neither eligible for consideration for promotion nor was he considered. As such, he is ineligible for an SSB. There no basis for granting him one. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___X___ ___X____ ___X____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20100019930, dated 9 December 2010. ___________X____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20110011217 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110011217 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1