IN THE CASE OF: BOARD DATE: 4 September 2012 DOCKET NUMBER: AR20120009418 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: 1. The applicant requests reconsideration of his earlier request(s) for: * payment of differential back pay and allowances from 21 May 1999 to 27 March 2001 * award of 48 inactive duty points and 15 active duty points per retirement year * promotion to colonel (COL) as a member of the Army Retired Reserve with a date of rank (DOR) to be determined by the Board 2. As new issues, he requests: * in the alternative, promotion consideration to COL by the Calendar Year 2008 (CY08) and 2009 (CY09) in lieu of the CY02 and CY03 special selection boards (SSB) * differential of pay for duty performed commensurate with the rank of COL to be determined by the Board to 19 August 2012 * a personal appearance 3. The applicant states: a. In Army Board for Correction of Military Records (ABCMR) Docket Number AR20110021246, dated 1 March 2012, the Board did not provide him relief for back pay and allowances for the period 21 May 1999 to 27 March 2001. However, the Board provided him partial relief by amending his date of rank (DOR) to lieutenant colonel (LTC) from 21 May 1999 to 29 May 1998 with entitlement to all back pay and allowances. Additionally, in ABCMR Docket Number AR20120005102, dated 19 April 2012, the Board did not provide him relief for back pay and allowances for the period of 21 May 1999 to 27 March 2001 or promotion to COL by the 2005/2006 Reserve Component Selection Board (RCSB). b. Failure to now promote him would result in an injustice in light of the Board's decision in ABCMR Docket Number AR20110021246, dated 1 March 2012, to amend his DOR as a LTC from 21 May 1999 to 29 May 1998. He was told by the promotion branch that he could be considered for promotion to COL by the CY02 and CY03 as an omission by the Board. c. A series of errors tainted his chances for a fair and a reasonable consideration for promotion to COL. The errors are so material that they cannot be corrected by an SSB. These errors were not his responsibility and have tainted him from a fair and impartial promotion consideration to COL. d. At the time of the 2002 and 2003 SSBs, he was serving in the Army National Guard (ARNG) in a warrant officer status as a chief warrant officer two (CW2). He was notified on 2 November 2004 of his promotion to LTC by the 2003 SSB with a DOR of 29 May 1998. e. When he was considered by the 2002 and 2003 SSBs, he had no time in grade (TIG) as a LTC. This is a material error. The regulation requires a minimum of 3 years TIG in the lower grade for consideration to COL. Additionally, he had no rated time as a LTC. The regulation also states the maximum TIG is normally 5 years (subject to the needs of the Army). With a DOR of 2 November 2004, he did not meet the TIG requirement for promotion consideration to COL. This is also a material error. Also, he was notified of his promotion to LTC on 2 November 2004 which would make it inconsistent to be considered by the 2002 and 2003 SSBs. f. His records contained four officer evaluation reports (OER) as a CW2 which should be removed since these reports did not reflect his performance as a LTC for a fair and impartial consideration for promotion to COL by both the CY02 and CY03 SSBs. Despite the similarities between commissioned and warrant officers, the regulation distinguishes between the two. Retaining the OERs constitutes a material error. g. Had these material errors been corrected at the time of his consideration, there was a reasonable chance he would have been selected for promotion. 4. He also states if the Board does not grant him the above relief, he should be considered by the CY08 and CY09 SSBs: a. The Board should place a memorandum in his records stating that his record was reconstructed due to material errors. Without this memorandum, there is a chance the promotion board may come to an unintended negative inference in its recommendation. b. The Board should also remove all CW2 OERs from his record for both the CY08 and CY09 SSBs since failure to do so constitutes an error. He previously sought help in July 2005 from his U.S. Army Reserve (USAR) career managers to remove these OERs but received a written response through the Office of the Inspector General that the USAR Command would take no part in correcting his record for the 2006 COL board and no action would occur to remove the four OERs. 5. He further states since he was wrongfully retired from the USAR on 21 May 1999 due to non-selection to LTC, he is entitled to the differential in pay between 21 May 1999 and 27 March 2001. Although the Board ruled he is not entitled to the pay or award of 48 inactive/15 active points per retirement year, he was prohibited from serving beyond May 1999. 6. The applicant provides: * Promotion consideration memorandum, dated 2 November 2004 * HRC Officer Promotion Memorandum, dated 19 April 2012 * Second Non-selection Memorandum, dated 12 April 1999 * Reassignment to the Retired Reserve orders, dated 21 May 1999 * Election of Option statement, dated 1 June 1999 * Extract of Army Regulation (AR) 600-8-104 (Military Personnel Information Management/ Records) * Extract of AR 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) * Email, dated 11 July 2005, related to the 2005 USAR Army Promotion List (APL) Selection Board * Letter, dated 7 July 2005, from the USAR Inspector General (IG) * Extract of AR 623-3 (Evaluation Reporting System) * Army Reserve Personnel Command Form 249-E (Chronological Record of Retirement Points) * Reassignment orders, dated 19 August 2008 * Promotion memorandum as a result of ABCMR Docket Number AR20110021246, dated 1 March 2012 * ABCMR Record of Proceedings for Docket Number AR20110021246, dated 1 March 2012 * ABCMR Record of Proceedings Docket Number AR20120005102, dated 19 April 2012 CONSIDERATION OF EVIDENCE: 1. The applicant's records show he was appointed as a first lieutenant (1LT) in the New Jersey ARNG (NJARNG) and executed an oath of office on 23 March 1982. He was later appointed as a 1LT in the USAR on 16 February 1983. 2. He served in a variety of staff or leadership assignments and he was promoted to captain on 10 June 1983 and major (MAJ) on 9 June 1990. Based on 7 years of time in grade as a MAJ, his promotion eligibility date (PED) for promotion to LTC was established as 8 June 1997. 3. He was considered for promotion to LTC by the Fiscal Year (FY) 1996, 1997, and 1998 RCSBs, but he was not selected for promotion. His consideration for promotion was based on having 7 years of required TIG (his PED to LTC was 8 June 1997). 4. In May 1999, he petitioned the ABCMR (ABCMR Docket Number AR1999028125) and requested to be promoted to LTC effective 9 June 1997 based on unfairly not being selected for promotion by the FY98 RCSB; back pay and allowances and retirement point credit. On 9 December 1999, the ABCMR denied his request and determined there was insufficient evidence to show his non-selection was unfair or unjust. 5. On 21 May 1999, the 99th Regional Support Command (RSC), Oakdale, PA, published Orders 141-34, reassigning him to the Retired Reserve by reason of voluntary transfer effective 1 June 1999. However, these orders would be later amended on 2 January 2005, to show he was transferred to the USAR Control Group (Reinforcement, or Individual Ready Reserve (IRR)). 6. On 14 October 1999, the USAR Personnel Command, St. Louis, MO, issued him a Notification of Eligibility for Retired Pay at Age 60 (20-year letter). 7. He was appointed as a chief warrant officer two in the New York ARNG (NYARNG) on 28 March 2001. He was assigned to the 4th Personnel Service Detachment, NYARNG. Additionally, he served with the Personnel Services Branch, State Area Command, DEARNG, Wilmington, DE, from 17 May 2003 to 31 March 2004, and the NJARNG from 1 April 2004 to 4 December 2004. During his assignment to these units, he received four favorable OERs, with positive ratings as follows: * Change of rater, covering the rating period 28 March 2001 through 30 November 2001 * Annual, covering the rating period 1 December 2001 through 30 November 2002 * Change of Duty, covering the rating period 1 December 2002 through 16 May 2003 * Change of Duty, covering the rating period 17 May 2003 through 15 April 2004 8. Meanwhile, during his service as a CW2 in the ARNG: a. On 22 July 2002, he petitioned the ABCMR (ABCMR Docket Number AR2002072335) and requested reconsideration of his earlier request for promotion to LTC effective 9 June 1997 and reinstatement in the USAR. However, on 28 February 2003, the ABCMR notified him that his application was being administratively closed and his request was being forwarded to the U.S. Army Human Resources Command (HRC) for action by an SSB. b. He was considered for promotion to LTC by the 2003 SSB that adjourned on 31 July 2003 and was approved on 27 October 2004. The SSB recommended him for promotion to LTC under the 1997 LTC Army Promotion Board (APL) board criteria. c. On 13 January 2005, a promotion memorandum was issued promoting the applicant to LTC with an effective date of promotion and DOR of 21 May 1999. This was the date - erroneously believed - he was transferred to the IRR. 9. Meanwhile, he was honorably discharged from the NJARNG in the rank of CW2 on 4 December 2004 and he was transferred to the USAR Control Group (IRR). His National Guard Bureau Form 22 (Report of Separation and Record of Service) shows he completed 3 years, 8 months, and 7 days of service during this period. 10. On 17 November 2005, he was considered for promotion to COL by the May 2005 (convened 12 May 2005) and 2006 (convened 11 July 2006) RCSBs but he was not selected. He was also considered but not selected for promotion to COL by the 2007 SSB under the 2006 RCSB criteria. None of the boards showed that he was not selected for promotion due to non-completion of required civilian or military schooling. 11. He entered active duty on 12 July 2006 in the rank of LTC and he was honorably released from active duty on 26 July 2008. His DD Form 214 for this period of service shows he completed 2 years and 17 days of active service. 12. On 28 October 2008, he was transferred to the Retired Reserve in the rank of LTC. He was recalled to active duty from a retired status and served on active duty in the rank of LTC as follows: * 16 November 2008 - 1 April 2009 * 28 June 2009 - 27 June 2010 * 1 August 2010 - 31 July 2011 13. On 3 January 2012, in response to an advisory opinion, he provided sufficient documents to show he was assigned to a LTC position on 28 January 1998 and he had a current physical on file at that time. 14. On 1 March 2012, the ABCMR found reasonable presumption that the applicant met the promotion criteria as of 28 January 1998, and as such, recommended: * amending the promotion memorandum issued on 13 January 2005 to show he was promoted to LTC, USAR, with an effective date and DOR of 29 May 1998 * paying him any back pay and allowances due as a result of this correction 15. The applicant later requested reconsideration of his previous request for: * back pay and allowances for LTC from 29 May 1998 to 27 March 2001 * award of 48 inactive duty points and 15 active duty points per retirement year from 21 May 1999 to 27 March 2001 * promotion to the rank of COL as a member of the Retired Reserve with a DOR of 26 October 2008 * back pay and allowances for COL from 26 October 2008 to 19 August 2012 16. On 19 April 2012, the Board denied his request as follows: a. He was initially transferred to the Retired Reserve effective 1 June 1999. On 28 March 2001, he was appointed as a CW2 in the NYARNG. His Retired Reserve status was subsequently revoked and on 2 January 2005 he was assigned to the IRR effective 1 June 1999. b. Based on this correction, he was correctly credited with 30 membership points for the time he was assigned to the IRR for the Retirement Year Ending (RYE) 21 May 2000 and 21 May 2001. He was not assigned to a troop program unit nor did he serve on active duty, so he did not earn inactive or active duty points during this period. It is inappropriate to award points for service not performed. Therefore, he is not entitled to the requested relief. c. He was considered but not selected for promotion to COL by the 2005 and 2006 RCSB. The evidence showed he submitted information and documents to the 2005 RCSB that addressed any deficiencies he perceived in his records. He also received three OERs while serving as a LTC. At a minimum, one of these reports would have been considered by the 2006 RCSB. d. There was no evidence that indicates a material error was made in his non-selection by the 2005 or 2006 RCSB, or that he was not selected for promotion due to a lack of required civilian or military education or a lack of rated time as a LTC. However, he was again considered for promotion to COL by the 2007 SSB and he was again not selected for promotion. At least two, if not all three of the OERs he received while serving as a LTC would have been considered by the 2007 SSB. The reason for non-selection is speculative. Given that he was not selected for promotion to COL by three promotion boards, relief in this case is inappropriate. e. As for his request to be paid back pay and allowances for COL from 26 October 2008 to 19 August 2012, he was not promoted to COL and was transferred to the Retired Reserve on 26 October 2008 in the rank of LTC. Therefore, he is not entitled to the requested relief. 17. On 12 August 2011, he was recalled to active duty as an LTC from a retired status for a period of 365 days with a report date of 21 August 2011 and an end date of 19 August 2012. He is assigned to the U.S. Army War College, Carlisle Barracks, PA, as a LTC. 18. References: a. AR 135-155 prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the ARNG and of commissioned and warrant officers (WO) of the USAR. Chapter 3 outlines board schedules and procedures. Paragraph 3-4 provides guidance on notices of consideration. It states, in pertinent part, that the notice of consideration will be dispatched at least 90 days before the convening date of the board. Officers will be directed to review their records and submit copies of missing documents or other corrections. (1) Paragraph 3-19 contains guidance on promotion reconsideration boards. Paragraph 3-19e states that in order to find a material error, the Office of Promotions must make a determination that there is a fair risk that one or more of the following circumstances was responsible: (1) The record erroneously reflected that an officer was ineligible for selection for educational or other reasons when, in fact, the officer was eligible for selection when the records were submitted to the original board for consideration; (2) One or more of the evaluation reports seen by the board were later deleted from an officer's OMPF; (3) One or more of the evaluation reports that should have been seen by a board (based on the announced cut-off date) were missing from an officer's OMPF; (4) One or more existing evaluation reports as seen by the board in an officer's OMPF were later modified; (5) Another person's adverse document had been filed in an officer's OMPF and was seen by the board; (6) An adverse document, required to be removed from an officer's OMPF as of the convening date of the board, was seen by the board; (7) The Silver Star or higher award was missing from an officer's OMPF; or (8) An officer's military or civilian educational level, including board certification level for AMEDD officers, as constituted in the officer's record (as seen by the board) was incorrect. (2) Paragraph 3-19 also contains the following list of factors that will normally result in a material error determination: (1) Officer is removed from a selection list after the next selection board considering the officers of his or her grade recesses. If eligible, this person will be considered by the next regularly scheduled selection board. A special board will not be used.; (2) An administrative error was immaterial, or, the officer in exercising reasonable diligence, could have discovered and corrected the error or omission in the OMPF, or the officer could have taken timely corrective action; and (3) Letters or memorandums of appreciation, commendation, or other commendatory data for awards below the Silver Star are missing from the officer's OMPF. (3) Paragraph 3-20 contains guidance on information provided to SSBs. It states a promotion reconsideration board will consider the record of the officer as it should have been considered by the original board. Commissioned officers considered by a mandatory promotion board on or after 1 October 1996 will be considered by an SSB. The records of officers being reconsidered by an SSB will be compared with a sampling of those officers of the same competitive category who were recommended and who were not recommended for promotion by the original mandatory Reserve of the Army selection board. (4) Table 2-1 provides for the minimum TIG requirement for promotion consideration by a mandatory board. For promotion from MAJ to LTC, the minimum number of years in the lower grade is 4 years and the maximum number of years in the lower grade is 7 years. For promotion from LTC to COL, the minimum number years in the lower grade is 3 years and the maximum number of years as announced annually but normally 5 years subject to the needs of the Army. b. Department of the Army (DA) Memo 600-4 (Policies and Procedures for Reserve Components Officer Selection Boards), Appendix A, Section II, states a board will identify fully-qualified officers from among those under consideration. If promotions are to be made from best-qualified officers only, the board will then tentatively identify officers who are considered best qualified for promotion based upon the maximum number of selections stipulated in the convening authority's memorandum to the board. The number of officers whose names appear on the final selection list will not exceed the maximum selection capability specified in the memorandum of instructions. At the conclusion of the deliberative process, the board will conduct a formal vote to ensure that no officer is recommended as best qualified for promotion unless he or she receives the recommendation of a majority of the members of the board. c. AR 600-8-104 (Military Personnel Information Management/ Records) provides policies, operating tasks, and steps governing the OMPF. It states that only those documents listed in Table 2-1 and Table 2-2 are authorized for filing in the OMPF. Depending on the purpose, documents will be filed in the OMPF in one of three sections: performance, service, or restricted. Table 2-1 (Composition of the OMPF) of this regulation states the U.S. Army Officer Evaluation Reports are filed in the performance section of the OMPF. Additionally, this regulation states once placed in the OMPF, the document becomes a permanent part of that file. The document will not be removed from a fiche or moved to another part of the fiche unless directed by an authorized official/body. d. AR 623-105, in effect at the time, established the policies and procedures for the OER system. (1) Paragraph 3-20 stated that Part V of the form provided for the rater's evaluation of the rated officer's performance and potential. The rater comments on specific aspects of performance and potential. These comments are mandatory. (2) Paragraphs 3-57 and 6-6a provided that an OER accepted by HQDA and included in the official record of an officer, is presumed to be administratively correct, to have been prepared by the properly-designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. (3) Paragraph 6-10 stated that the burden of proof in an appeal of an OER rests with the applicant. Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted. e. AR 15-185 (ABCMR) provides DA policy, criteria, and administrative instructions regarding an applicant's request for the correction of a military record. It states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION AND CONCLUSIONS: 1. The applicant was reassigned to the Retired Reserve in the rank of MAJ on 21 May 1999. He then served in the ARNG as a warrant officer from March 2001 through December 2004. He was considered for promotion to LTC by an SSB in 2003 under the 1997 LTC APL board criteria. A promotion memorandum was issued on 13 January 2005 promoting him to LTC with a DOR of 21 May 1999 and an effective date for pay and allowances of 21 May 1999. The ABCMR later recommended adjustment of his DOR to LTC to 29 May 1998. 2. He was considered for promotion to COL by the May 2005 (convened 12 May 2005) and 2006 (convened 11 July 2006) RCSBs but he was not selected. He was also considered but not selected for promotion to COL by the 2007 SSB under the 2006 RCSB criteria. His consideration was based on the original DOR to LTC of 21 May 1999. 3. However, since his DOR was adjusted back by one year to 21 May 1998, he would have been eligible for promotion consideration to COL by the 2004 board. Therefore, his records should be submitted to a duly-constituted SSB for consideration for promotion to COL under the 2004 year criteria promotion board. 4. With respect to the other issues: a. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interests of equity and justice in this case. b. With respect to promotion to COL, the ABCMR corrects records; it is not a promotion board. If as a result of a correction of records an applicant is entitled to promotion, the Board may recommend such action. Here, the applicant was never selected for promotion to COL by a promotion board. c. With respect to the CW2 OERs, (1) By regulation OERs are filed in the performance section of the OMPF. For historical purposes, the Army has an interest in maintaining the integrity of its records. In this regard, the information contained therein should reflect the conditions and circumstances that existed at the time the records were created and under which the military service was performed. (2) All four OERs are properly filed in his OMPF. They are not wrong, inaccurate, or derogatory. There is no evidence the presence of these OERs has any impact on his promotion consideration to COL. His belief that he was disadvantaged by the presence of the four OERs is speculative at best. (3) Therefore, in the absence of convincing independent and verifiable evidence to the contrary, his OERs are properly filed and there is an insufficient evidentiary basis for changing his records at this time. d. With respect to pay and allowances for LTC from 29 May 1998 to 27 March 2001, he was promoted to the rank of LTC with an effective date for pay and allowances of 21 May 1999. Therefore, he is only entitled to back pay and allowances for LTC from his amended DOR of 29 May 1998 (approval date of the 1997 LTC APL Board) to 20 May 1999 (1 day prior to his current promotion date). This correction was previously made, and he provides no evidence to show he has not received this pay. e. With respect to the inactive/active points, as previously advised, based on the previous correction of his records, he was correctly credited with 30 membership points for the time he was assigned to the IRR for the RYE 21 May 2000 and 21 May 2001. He was not assigned to a troop program unit nor did he serve on active duty, so he did not earn inactive or active duty points during this period. It is inappropriate to award points for service not performed. Therefore, he is not entitled to the requested relief. f. The applicant was transferred to the Retired Reserve on 28 October 2008. Since he was no longer in an active status, he was ineligible for promotion consideration to COL by the CY08 or the CY09 promotion boards. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF _____X___ ___X_____ ___X_____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * Submitting the applicant’s records to a duly constituted SSB for consideration for promotion to colonel under the 2004 COL promotion selection board criteria * if selected for promotion his records be further corrected by promoting him to COL based on his assigned promotion sequence number with the appropriate DOR, and with all due back pay and allowances, or by assigning him the appropriate promotion sequence number * if selected for promotion his records be further corrected by removing from his records all documents relating to the previous non-selection for promotion to COL * if not selected, the applicant be so notified 2. The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to: * payment of differential back pay and allowances from 21 May 1999 to 27 March 2001 * award of 48 inactive duty points and 15 active duty points per retirement year * promotion to colonel as a member of the Army Retired Reserve with a date of rank to be determined by the Board * promotion consideration to COL by the Calendar Year 2008 and 2009 in lieu of the CY02 and CY03 SSBs * differential of pay for duty performed commensurate with the rank of COL to be determined by the Board to 19 August 2012 * a personal appearance _______ _ _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) AR20120009418 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120009418 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1