RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  21 February 2007
	DOCKET NUMBER:  AR20060009952 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  


Mr. Carl W. S. Chun

Director

Ms. Anita McKim-Spilker

Analyst


The following members, a quorum, were present:


Ms. Marla J. N. Troup

Chairperson

Mr. John G. Heck

Member

Mr. Donald L. Lewy

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 removal from the Retired Reserve, promotion to lieutenant colonel (LTC), and return to duty status in the Army Reserve.  

2.  The applicant states, in effect, that because he was considered for involuntary separation for submitting a fraudulent Active Guard Reserve (AGR) application packet, he was flagged and unable to perform annual training and receive Officer Evaluation Reports (OERs) for over three years.  Without the necessary OERs, and because he could not perform annual training, he was a two-time non-select to LTC and required to retire.

3.  The applicant provides a copy of his officer elimination packet and associated documents; a copy of his retirement orders; a copy of his Chronological Statement of Retirement Points; copies of the promotion board results; and a self-authored statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he was appointed as a second lieutenant in the U.S. Army Reserve (USAR) effective 20 May 1979.  On 2 July 1979, the applicant requested retention on active duty after completion of his obligated tour.  On 17 July 1979, the applicant's request for retention on active duty was approved.

2.  The applicant was promoted to first lieutenant on 21 February 1981.

3.  On 13 September 1981, the applicant received a general officer letter of reprimand (GOLOR).  Since the document was not available in the applicant's official record, the conduct eliciting the GOMOR is unknown.

4.  On 18 September 1981, the applicant's records were reviewed and it was determined that his manner of performance and potential did not compare favorably with his contemporaries and that he had not demonstrated the potential for a successful career.  As such, he was notified of the revocation of his approved extension of service. 

5.  On 6 June 1982, the applicant was released from active duty and reassigned to the 387th Personnel and Administrative Battalion, Wichita, Kansas.

6.  On 19 May 1986, the applicant was promoted to captain.

7.  On 20 August 1990, the applicant entered active duty as an AGR for a period of three years.

8.  On 18 May 1993, the applicant was promoted to major.

9.  The August 1993 AGR Officer Continuation/Entrance and Sergeant Major Entrance Board convened at the Secretariat for DA Selection Boards on 10 August 1993.  In the opinion of the majority of the Board members, the applicant was considered not best qualified to perform the duties or assume the responsibilities expected of an Army Reserve Soldier and was not recommended for continuation in the AGR Program. 

10.  On 6 January 1994, the applicant was released from active duty and assigned to the USAR Control Group (Reinforcement).  He was later transferred to a Selected Reserve unit.

11.  On 7 July 1994, the applicant submitted an AGR application.  His application was approved, and he was ordered to active duty in the AGR Program with a reporting date of 5 September 1995. 

12.  On 23 August 1995, the applicant's orders for active duty in the AGR Program were revoked.  It was discovered that in his AGR application, the applicant did not address his former AGR participation and indicated that the instant application was an "initial entry" application, and that he had never been on a previous AGR tour.  Regulations provide that once a Soldier is non-selected for continuation and separated from the AGR Program, the Soldier becomes ineligible for future AGR assignments without a waiver approved by the Chief, Army Reserve.

13.  On 18 August 1995, a DA Form 268 (Report to Suspend Favorable Personnel Actions) was initiated against the applicant and an investigation was initiated. 

14.  In August 1995, the applicant filed an Inspector General complaint.  The basis of his complaint was his belief that his application was proper based upon advice he received from a military lawyer.  To support his IG complaint, the applicant indicated that he was advised that a "non-continuation" was an involuntary release from the AGR Program, but not an adverse action, and that a non-continued officer could reapply for the AGR Program by submitting an AGR application packet.  

15.  On 22 August 1995, an IG inquiry was commenced and it was determined that non-selection by a continuation board is a non-waivable conditions for subsequent AGR service, with exceptions made by DCSPER, and that the accessions board should not have approved the applicant's AGR tour.  The IG further determined the AGR application packet contained areas where "interpretation of verbage was subjective" and recommended that the applicant's flag be removed unless there was proof he made false statements on his application.

16.  On 23 August 1995, the applicant's flag was removed.

17.  On 15 September 1995, the applicant was advised of the recommendation to eliminate him from the USAR under the provisions of Army Regulation 135-178, paragraph 2-12d.  The basis of the elimination was the applicant's intentional omission and deliberate misrepresentation of himself in an official record for the purpose of obtaining reentry into the AGR Program.  His command indicated that his deliberate falsification of application documents, together with his prior acts of misconduct, more than warranted his expulsion from the officer corps and the USAR.  

18.  On 15 February 1996, the applicant requested to appear before a board of officers.  

19.  On 21 October 1998, the applicant was notified that an involuntary separation board of officers would be convened during the week of 
7-11 December 1998.  He was given 30 days to acknowledge receipt in writing.  It is unknown whether the applicant received this notification because on 24 November 1998, AR-PERSCOM notified his headquarters of a change of address for the applicant.

20.  On 25 November 1998, a second attempt to notify the applicant of his involuntary separation board was made.  There is no evidence to show whether the applicant responded to this notification.

21.  On 29 January 1999, the elimination board recorder recommended that the elimination action be withdrawn due to credible evidence indicating that a basis for the action did not exist.  The board found that AGR officers who are not selected for continuation may, nevertheless, meet USAR retention standards.  Army regulations require continuation boards to evaluate an officer's quality of performance and potential for future AGR service to determine whether the officer should be continued in the AGR program.  Although regulations provide that a release resulting from nonselection by a continuation board is an involuntary release from active duty, there is no indication in any regulatory document that nonselection for continuation constitutes an adverse action, or a release for cause or unsuitability.  DA Active Duty Boards (DAADB) provide for certain due process requirements not available at a continuation board such as written notice of the proceeding, the basis for the proceeding, and an opportunity to present information.  Further DAADB are convened to consider cases of misconduct, moral or professional dereliction and/or when an officer's degree of efficiency and manner of performance requires such action.  Consequently, an officer involuntarily released from active duty on the recommendation of a DAABD is separated for cause, but an officer released from active duty as a result of nonselection for continuation is not separated for cause.  

22.  As regards the applicant's responses on his AGR application packet, the Board found that the applicant's use of the phrase "initial entry" was consistent with the Army's own interpretation because the form only provided an applicant with two choices; i.e., either the applicant must initial a statement indicating he or she is applying for an initial AGR tour or the applicant must initial that he or she is currently in the AGR program and is being processed for an extension.  Further, the applicant indicated in his memorandum accompanying the application that he was a major and last considered for promotion while he was in the AGR program. Therefore, there was no evidence to conclude the applicant falsified his AGR application packet, and the board recorder recommended the proceedings be withdrawn.

23.  On 10 June 1999, the involuntary separation action against the applicant was discontinued based on credible evidence indicating that a basis for the action did not exist.  

24.  On 14 June 1999, the applicant's flag was removed.

25.  The applicant was considered and not selected for promotion to LTC by the 1999 and 2000 LTC DA Reserve Components Selection Boards.  The reasons for non-selection are unknown because board deliberations are not a matter of record. 

26.  On 16 March 2001, the applicant applied for and was granted a special selection board (SSB) under calendar year 2000 criteria based on an OER report ending 2 June 2000 and not seen by the board.  On 5 June 2002, the applicant was notified that he was not selected for promotion to LTC by the SSB.  

27.  On 20 June 2001, the applicant was notified of his eligibility for retired pay at age 60 (20-year letter).
28.  On 21 September 2001, the applicant was reassigned to the Retired Reserve for non-selection for promotion.  Originally, the applicant was discharged from the USAR; his orders were subsequently amended to the Retired Reserve with the same effective date.

29.  The results of the 2001 LTC DA Reserve Components Selection Board were approved on 1 February 2002 and released on 28 February 2002.  The applicant was selected for promotion and sent a select letter dated 28 February 2002, with an effective date of 17 May 2000.  Since he was no longer in active status, the promotion was considered erroneous. 

30.  The applicant is currently serving as a voluntary recall to active duty in Kuwait.  His service began on 20 November 2005 and will end on 19 November 2007.

31.  In a self-authored statement, the applicant contends that he was not selected for promotion to LTC due to lack of participation in the Army Reserve from 8 November 1995 through 14 June 1999.  He also contends that although the investigation initiated against him was ultimately resolved in his favor, the investigation took too long and he was no longer in active status when he was ultimately selected for LTC by the 2001 LTC DA Reserve Components Selection Board because he was forced to retire.

32.  In processing this case, an advisory opinion was obtained from Chief, Office of Promotions, Reserve Components, U.S. Army Human Resources Command, St. Louis (HRC-St. Louis), dated 10 August 2006, which recommends denial of the applicant's request for promotion to LTC.  In accordance with Title 10, U.S. Code, section 14506, the applicant was retired on 1 September 2001 for non-selection for promotion.  Therefore, he was not in an active reserve status on the convening date of the 2001 LTC DA Reserve Components Selection Board and not eligible for promotion.

33.  On 11 January 2007, the applicant was provided with a copy of the advisory opinion for rebuttal.  In his rebuttal, the applicant indicated that the injustice in his case is not about being promoted to LTC, but about "taking care of Soldiers."  His career was placed on hold for almost 4 years because he was flagged and could not transfer to another reserve unit, receive an OER, or attend annual training.  After his elimination was withdrawn, he contends his records should not have gone before the 1999 or 2000 LTC DA Reserve Components Selection Boards because he could not adequately compete with his peers after being inactive for almost 4 years.

34.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used in the selection and promotion of commissioned officers of the Army National Guard of the United States and the commissioned and warrant officers of the U.S. Army Reserve.  This regulation specifies that a major who has failed selection for promotion to lieutenant colonel for the second time will be removed from active Reserve status unless the officer can be credited with 18 or more but less 20 years of qualifying service for retired pay.  Officers retained will be transferred to the Retired Reserve when entitled to be credited with sufficient qualifying service for retired pay.

35.  Army Regulation 135-155 also stipulates that an individual cannot be promoted with any flagged entries in the database.

36.  Army Regulation 135-155 further provided that promotions would be made only on the recommendation of a promotion selection board.  An officer removed from an active Reserve commissioned status before promotion was finalized (effective date of promotion) would be removed from the promotion list.  Removal would not be considered a non-selection.  The regulation further specified that promotion consideration/reconsideration by a special selection board may only be based on erroneous non-consideration or material error, which existed in the record at the time of consideration.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was not selected for promotion because he was flagged for nearly four years and could not compete adequately with his peers.  

2.  The evidence of record shows the applicant was promoted to major on
18 May 1993.  He was considered and not selected for promotion to LTC by the 1999 and 2000 LTC DA Reserve Components Selection Boards.  He requested promotion reconsideration based on a missing OER and was granted a SSB under calendar year 2000 criteria based on an OER report ending 2 June 2000 and not seen by the board.  Again, he was not selected.  

3.  Because promotion boards are not permitted to disclose the reasons for non-selection for promotion, there is no record of why the applicant failed to be selected for promotion by the 1999 and 2000 LTC DA Reserve Components Selection Boards or the SSB.  In this regard, it must be noted that the selection 

board that considered the applicant for promotion was instructed to select only those who were considered best qualified for promotion to the next higher grade. Accordingly, it must be presumed that, when reviewed by the promotion board, the applicant's overall records failed to meet the standards established for selection on a best-qualified basis.  Promotion and retention are keenly competitive, and many officers will not be selected. 

4.  It is instructive to note that the applicant received a GOLOR and was twice non-approved for continued active duty, once as a USAR officer on active duty, and also as an AGR officer.  

5.  The applicant was appropriately transferred to the Retired Reserve upon completion of 20 qualifying years of service and non-selection for promotion prior to the Presidential approval date of the 2001 LTC DA Reserve Components Selection Board.  His contentions do not demonstrate error or injustice in the reason for his removal from an active status and transfer to the Retired Reserve.

6.  Although the applicant is now on voluntary recall to active duty, this fact does not provide a basis for removing him from the Retired Reserve and returning him to duty status in the Reserve.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__mjnt__  __jgh___  __dll___  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



						Marla J. N. Troup
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060009952
SUFFIX

RECON

DATE BOARDED
20070221
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
125.0100
2.
131.1100
3.

4.

5.

6.