RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 May 2007
	DOCKET NUMBER:  AR20060009744 


	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. Gerard W. Schwartz

Acting Director

Ms. Wanda L. Waller

Analyst


The following members, a quorum, were present:


Mr. Ronald Weaver

Chairperson

Mr. Jeffrey Redmann

Member

Mr. David Tucker

Member

	The Board considered the following evidence: 

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, credit of at least 50 points per year for retirement years 1995 to 2003 and year 2005 and pay and allowances for those years; credit of 3 additional points to retirement year ending (RYE) 1993, making it a good retirement year; and compensation or relief for lieutenant colonel/colonel promotion boards.

2.  The applicant states, in effect, that he was erroneously placed in the Retired Reserve in 1993 instead of the IRR.  Based on the results of a Special Selection Board (SSB) convened in 2004 as a result of a previous application to the Army Board for Correction of Military Records (ABCMR) he was promoted to major with an effective date of 3 August 1993.  He points out that he was immediately eligible for promotion to lieutenant colonel; however, he was denied reentry into the Individual Ready Reserve (IRR) or the National Guard until January 2003 because everyone believed he was “already retired.”  Since he could not get back in the Army during that time (1995 to 2003) he was not allowed to enroll in the Command and General Staff College (CGSC).  One of the criteria for promotion to lieutenant colonel is 50 percent completion of CGSC.  He states that had the IRR versus Retired Reserve situation been corrected in 1995 when he pointed it out to the Human Resources Command (HRC) in St. Louis, Missouri he would have been eligible to enroll in the CGSC and [have] had plenty of time to complete 50 percent of the course.   

3.  The applicant points out that he is insulted by the ABCMR comment in a previous application that “It is abundantly clear he did not take an active role in the management of his career” when it was abundantly clear that he gave the Board the name, time frame, and office symbol of the person who personally told him he was “retired,” and “couldn’t get out of the Retired Reserve.”  He contends that HRC knew of the problem in 1995 and did not correct it, that it is not his fault he was placed in the Retired Reserve without his permission, and that phone calls and emails to correct the problem went unanswered.

4.  The applicant is grateful the ABCMR allowed him to correct the injustice with the 1993 promotion board; however, he still has unanswered questions.  How can he meet the criteria for promotion to lieutenant colonel when he was not allowed to enroll in the CGSC prior to his lieutenant colonel [promotion eligibility] dates?  Why should he be further penalized for something he repeatedly tried for years to correct? Does not the same predicament exist for promotion to colonel were he to be promoted to lieutenant colonel, since during a normal career he 

would have been eligible for promotion to colonel between 2000 and 2005?  He states that there is nothing in his career that would indicate he would not have 
enrolled and completed CGSC if given the opportunity, that there is no guarantee but there is nothing in his career that suggests he would not have been promoted if given the opportunity, and that if he cannot be given an appropriate opportunity to earn a promotion to lieutenant colonel or colonel he requests financial compensation.     

5.  The applicant further states that with the crediting of retirement points and pay and allowances for retirement years 1995 through 2003 and 2005 the Board should take into consideration the following:  lost income and retirement points based on a 97 point average year prior to being placed in the Retired Reserve and what annual dollar value recruiting places on the benefits of commissary and Post Exchange privileges, Servicemember’s Group Life Insurance (SGLI), military discounts, and such.  He requests 50 or more points from summer 1995 to January 2003 and January 2005 until the revocation of the discharge.  He does not expect to receive additional points or pay for the time he was legitimately in the IRR from June 1992 to May 1993 or from May 1993 to the summer of 1995.  He states that in 1993 he was 3 points short of a good year and requests that at least 3 points be credited to that year making it a good year.  
6.  The applicant provides two compact discs with links to supporting documentation; a memorandum to the Board; nine Army Board for Correction of Military Records cases with similar issues; Leave and Earnings Statements; Army Reserve Personnel Command Chronological Statements of Retirement Points; promotion orders; revocation orders; and emails.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed a second lieutenant in the Army National Guard on 12 August 1978, promoted to first lieutenant on 4 August 1981, and promoted to captain on 4 August 1986.  He was honorably separated from the Army National Guard by reason of resignation on 8 June 1992.  His separation order and his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) both indicate that he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement), the IRR.    

2.  According to the advisory opinion, the applicant was erroneously transferred to the Retired Reserve sometime in July 1992. 

3.  In 1993, the applicant was considered for promotion to major (apparently in spite of his records showing he was in the Retired Reserve), but he was not selected.  He was advised on 3 May 1993 to provide proof of his completion of the Field Artillery Officer Advanced Course for possible promotion reconsideration.  There is no evidence to show that he complied with this request.

4.  The applicant’s Chronological Statement of Retirement Points, dated 8 March 2007, shows he earned an average of 69 retirement points during his last three RYEs prior to 29 October 1993.  The form shows that he earned 15 membership points per year from RYE 29 October 1993 through 29 October 2002.  The form also shows he earned 55 points during RYE 29 October 2003; 114 points during RYE 29 October 2004; 79 points during RYE 29 October 2005; and 71 points during RYE 29 October 2006.  He was credited with 19 years qualifying service for retirement at age 60 as of RYE 29 October 2006.  The applicant will reach his 60th birthday on 17 September 2011. 

5.  According to the advisory opinion, the applicant was reinstated in the IRR on 2 February 2003.  

6.  The applicant was identified for consideration for promotion to major under the 1993 criteria by the scheduled December 2005 SSB.  He was selected for promotion to major and was promoted with a date of rank and effective date of     3 August 1993.  The board was approved on 24 February 2006 and released on 14 March 2006.  Based on this selection, the applicant is in the zone of consideration to lieutenant colonel for the 1999 through 2005 calendar year selection boards; however, the applicant does not meet the required education for the boards.

7.  On 17 May 2006, the applicant’s mandatory removal date (MRD) was extended to 10 August 2009 (from 10 August 2006).

8.  In the processing of this case, a staff advisory opinion was obtained from the Military Personnel Actions Branch, U.S. Army Human Resources Command, St. Louis, Missouri.  The opinion states that the applicant was transferred from the Army National Guard to the IRR effective 8 June 1992.  Some time in July 1992, he was erroneously transferred to the Retired Reserve.  He was reinstated in the IRR on 2 February 2003.  The ABCMR granted relief to the applicant by allowing him service credit from the date he was placed in the Retired Reserve until his reinstatement in the IRR.  The applicant was discharged on 3 January 2005 for second time non-select; however, these orders were revoked based on promotion consideration and selection by the SSB which promoted the applicant to major.  The opinion states that based on the unusual circumstances surrounding the applicant’s military career and unfortunate injustices that abound 
throughout his attempts to get his military career reestablished to include time and service lost, it is recommended that he be awarded 3 additional retirement points for RYE 1992, which would cause that year to become a qualifying year for retirement purposes.  It is also recommended that the applicant be awarded the retirement points lost for the period 1993 through 2003 during which time he was erroneously placed in the Retired Reserve.  

9.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Special Actions Branch, Office of Promotions, Reserve Components, U.S. Army Human Resources Command, St. Louis, Missouri.  The opinion states that the applicant was considered by a SSB under calendar year 1993 criteria in November 2005 and was selected for promotion to major.  The board was approved on 24 February 2006 and released on 14 March 2006.  Based on this selection, the applicant was in the zone of consideration for lieutenant colonel for the 1999 (sic) through 2005 calendar year selection boards, however, the applicant did not meet the required education for the boards.  The applicant was then considered by the 2006 Lieutenant Colonel Army Promotion List Department of the Army Reserve Components Selection Board that convened on 12 September 2006.  The applicant was not selected for promotion by this Board. Prior to the 12 September 2006 promotion board the applicant applied for a military education waiver for the 2006 board.  On 31 August 2006, a Major General issued a memorandum on the Reserve Component Promotion Board Military Education Waiver Guidance.  The military education requirement in accordance with Army Regulation 135-155 is completion of 50 percent CGSC, or completion of Intermediate Level Education (ILE).  The prerequisite for a military waiver for ILE is completion of the Combined Arms and Services Staff School or Combined Arms and Exercise Course (CAX).  On 31 August 2006, the applicant’s military education waiver was denied due to not completing the prerequisites of ILE.   

10.  The advisory opinion was furnished to the applicant for comment.  He responded on 11 January 2007.  In summary, he stated that the advisory opinion seemed fair and pointed out that there were no recommendations for pay and allowances and the number of points to be credited per year.  He stated that RYE 30 (sic) October 2003 was partially addressed in the advisory opinion and RYEs 30 (sic) October 2005 and 30 (sic) October 2006 were not addressed.  He stated that any award of additional points for RYE 2005 and RYE 2006 should include the pay that would accompany those points.  He also stated that he was not given the full opportunity to apply or complete CGSC that his peers were given.  He contends that if he were to take and complete CAX and ILE, assuming he would be accepted in the course due to his current years of commissioned 
service, he would have to serve another 3 years if selected in order to retire at that grade.  This would require another mandatory retirement date extension and take him to age 59 or 60.  He is willing to take the course and he requests that “if” he is selected for lieutenant colonel that the ABCMR either backdate the promotion or move him up on the retirement list so he may retire at that pay grade rather than requiring another ABCMR decision at a later date. 

11.  Title 10, U. S. Code, section 14304 states that officers shall be placed in the promotion zone for that officer’s grade and competitive category and shall be considered for promotion to the next higher grade by a promotion board far enough in advance of completing the years of service in grade specified so that, if the officer is recommended for promotion, the promotion may be effective on or before the date on which the officer will complete those years of service.  The maximum years of service for promotion to the grade of lieutenant colonel is        7 years.

12.  The Secretary of the Army established the promotion zone for the 2000 lieutenant colonel’s Reserve Components Selection Board (RCSB) for officers with dates of rank for major from 2 January 1993 through 1 January 1994.

13.  Title 10, U. S. Code, section 14506 states each Reserve officer who holds the grade of major who has failed of selection to the next higher grade for the second time and whose name is not on a list of officers recommended for promotion to the next higher grade shall be removed from the Reserve active status list on the first day of the month after the month in which the officer completes 20 years of commissioned service or the first day of the seventh month after the month in which the President approves the report of the board which considered the officer for the second time, unless retained as provided in, among other sections, section 14701.

14.  Title 10, U. S. Code, section 14701(a) states a Reserve officer who is required to be removed from the Reserve active status list under section 14506 may, subject to the needs of the service, be considered for continuation on the reserve active status list under regulations prescribed by the Secretary of Defense.  Section 14701(a)(3) states a Reserve officer who holds the grade of major and who is subject to separation under section 14513 (due to being twice failed of selection for promotion) may not be continued on the reserve active status list for a period which extends beyond the last day of the month in which the officer completes 24 years of commissioned service.  

15.  Title 10, U. S. Code, section 14507 states that, unless continued on the reserve active-status list, each reserve officer of the Army who holds the grade of lieutenant colonel and who is not on a list of officers recommended for promotion to the next higher grade shall be removed from that list on the first day of the 
month after the month in which the officer completes 28 years of commissioned service.  Title 10, U. S. Code, section 12734 states that service in an inactive status may not be counted in any computation of years of service.
16.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrants Officers Other than General Officers), paragraph 2-15a(2) states an officer whose removal from an active status has been invalid is not required to meet the military education requirements for promotion.  If circumstances warrant, the Commander, U. S. Army Human Resources Command, St. Louis, Missouri may grant a waiver for an inactive or retired status period resulting from an invalid removal.  To qualify, the officer must have resumed participation in an active status on discovery of the error.  Completion of 50 percent of CGSC is required for promotion to lieutenant colonel; completion of CGSC is required for promotion to colonel.

DISCUSSION AND CONCLUSIONS:

1.  The advisory opinion from the Military Personnel Actions Branch, U. S. Army Human Resources Command, St. Louis, Missouri acknowledged that unusual circumstances surrounded the applicant’s military career and unfortunate injustices abounded throughout his attempts to get his military career reestablished.

2.  During the last three RYEs prior to the applicant’s erroneous transfer to the Retired Reserve in 1993, he earned an average of 69 retirement points per RYE. This is accepted as sufficient evidence to show he lost the opportunities to accumulate the same average during the 10 years he was erroneously in the Retired Reserve.  It would be equitable to correct his records to show he earned 69 retirement points (39 inactive duty points, 15 membership points, and           15 active duty points) each year from RYE 29 October 1995 through 29 October 2002.  It is acknowledged that the applicant had extensive active duty periods; however, it would be speculative to presume his active duty during RYEs 
29 October 1995 through 29 October 2002 would have also been extensive.  It would be equitable to pay him all due pay and allowances for these inactive duty and active duty periods.

3.  The applicant requested credit of at least 50 retirement points for RYE          29 October 2005; however, his Chronological Statement of Retirement Points shows that he has already been credited with 79 retirement points for that RYE.

4.  Again, the advisory opinion from the Military Personnel Actions Branch, U. S. Army Human Resources Command, St. Louis, Missouri acknowledged that unusual circumstances surrounded the applicant’s military career and 
unfortunate injustices abounded throughout his attempts to get his military career reestablished.  The injustice was that he was erroneously transferred to the Retired Reserve around July 1992 and not reinstated in the IRR until February 2003.  When he was finally reinstated, he was eligible for promotion consideration to major under the 1993 criteria.  He was selected for promotion to major with a date of rank and effective date of 3 August 1993.

5.  The Secretary of the Army established the promotion zone for the 2000 lieutenant colonel’s RCSB for officers with dates of rank for major from 2 January 1993 through 1 January 1994.  Therefore, the applicant’s August 1993 to major placed him in the established promotion zone for the 2000 RCSB.  The advisory opinion noted that the applicant did not meet the required education for the boards.  However, because his 1992 removal from an active status was invalid, and because he resumed participation in an active status once he was reinstated, he could have received a waiver of the education requirement per Army Regulation 135-155.  His records should now be corrected to show he was given that education waiver, and his records should be submitted to a duly constituted Special Selection Board for reconsideration for promotion to lieutenant colonel beginning with the 2000 criteria.  It would also be appropriate to file in his Official Military Personnel File (OMPF) a non-rated statement covering the period from his removal from an active status around July 1992 until his reinstatement in February 2003.

6.  The applicant also requested “compensation or relief for…colonel promotion boards.”  If the applicant is selected for promotion to lieutenant colonel by a Special Selection Board sufficiently early, his records should be submitted to a Special Selection Board for promotion consideration to colonel under the appropriate criteria.  However, if this occurs, it does not appear that a waiver of the military education required (completion of CGSC) for promotion to colonel would be equitable.  The applicant was returned to an active status in February 2003 and has had sufficient time to complete CGSC.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

RW____  ___JR___  _DT_____  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:
     a.  showing he earned 69 retirement points (39 inactive duty points,              15 membership points, and 15 active duty points) each year from RYE              29 October 1995 through 29 October 2002 and paying him all due pay and allowances for these inactive duty and active duty periods; 

     b.  that an adequate explanation be placed in his official personnel files to show that the gap in his officer evaluation reports, from the date of his removal from an active status around July 1992 until his reinstatement in February 2003, was not caused by any fault on his part, and to ensure that he is not prejudiced thereby in the consideration of any future personnel actions; 

     c.  that, following the administrative implementation of the foregoing, his records be submitted to a duly constituted Special Selection Board for reconsideration for promotion to lieutenant colonel, as required, beginning with the criteria of the 2000 promotion selection board and showing he was granted a waiver for the military education requirement for promotion to lieutenant colonel beginning with the 2000 promotion selection board (and later promotion boards, if required); 

     d.  that, if he is selected for promotion to lieutenant colonel sufficiently early and meeting all other eligibility requirements, his records be submitted to a duly constituted Special Selection Board for consideration for promotion to colonel.  Granting a military education waiver for promotion consideration to colonel is not approved; and 

    e.  if not selected for promotion to lieutenant colonel or, if applicable, to colonel, so notifying him.

2.  The Board further determined that the evidence presented is 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 compensation or relief for colonel promotion boards beyond that granted above.  




_Ronald Weaver________
          CHAIRPERSON




INDEX

CASE ID
AR20060009744
SUFFIX

RECON

DATE BOARDED
20070524
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
GRANT 
REVIEW AUTHORITY

ISSUES         1.
135.0200
2.
129.1400
3.

4.

5.

6.