IN THE CASE OF:	  

		BOARD DATE:	        24 FEBRUARY 2009

		DOCKET NUMBER:  AR20080008046 


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 request to be reconsidered for promotion to colonel (COL) by a Special Selection Board (SSB).  As a new issue, he requests that his area of concentration (AOC) be reclassified from Army Medical Department (AMEDD) to the Military Police Corps prior to his mandatory removal date (MRD) (January 2005 through July 2005).

2.  The applicant states, in effect, that he refutes and challenges several facts contained in the previous decision (Docket Number AR20070004151, dated 26 December 2007) which constitutes material error under Army Regulation 
135-155 (Promotion of Commission Officers and Warrant Officers Other Than General Officers), paragraph 3-19.  

3.  The applicant references paragraph 7 under "Consideration of Evidence" (Docket Number AR20070004151, dated 26 December 2007) which reiterates his contention that he was not offered an opportunity to review his records prior to having them presented to the SSB.  He cites paragraph 3-4 which states, in part, "officers will be notified at least 90 days prior to the board consideration and directed to review their records."  He alleges that he was not granted the opportunity to review his records prior to submission to the SSB that convened in December 2004, June 2005, and July 2006, which is in violation of the Army regulation.  

4.  The applicant also references paragraph 4 of "Consideration of Evidence" and paragraph 2 of "Discussion and Conclusion" in which the Board commented that no material error existed based on the failure of statements directed to be placed in his Official Military Personnel File (OMPF) per paragraph 4b of Army Board for Correction of Military Records (ABCMR) Decision Docket Number AR2001062261, dated 10 October 2001.  He states that the purpose of the explanation regarding a gap in Officer Evaluation Reports (OERs) was "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 now voided discharge and transfer to the Retired Reserve to the date of return to active reserve status was not caused by any fault on his part, and to insure that he is not prejudiced in the consideration of any future personnel actions."

5.  In a letter, dated 25 November 2005, from the Human Resources Command St. Louis, MO (HRC-STL) it was opined that the lack of efficiency reports was a significant factor in the applicant's non-selection.  It was stated that "However, the absence of current grade performance evaluations may have been a major factor in the board's decision" and was also reflected in paragraph 15 under "Consideration of Evidence" of ABCMR Decision Docket Number AR20050013079.  The applicant states that paragraph 8 under "Consideration of Evidence" refers to Army Regulation 135-155, paragraph 3-19 and provides evidence which defines material error.  The applicant references paragraph 3-19(6) which states, "An adverse document required to be removed from the officers OMPF as of the convening date of the board was seen by the board."  

6.  The applicant further references ABCMR Decision Document Number 
AC97-08966, dated 2 September 1998, which directed "That all Department of the Army records related to this case be corrected by expunging the 6 November 1993 MOR and associated documents from the applicant's OMPF."  He also references ABCMR Decision Document Number AR2001062261, dated 10 October 2001, which directs removal of the letter of reprimand (LOR) from his OMPF.  He states that based on the two decisional documents and in review of Personnel Electronic Records Management (PERMS), the LOR and numerous associated documents were never removed.  He states that almost 10 years after the board directed their removal, these documents remain active in both his electronic and hard copy OMPF.  He alleges that "Therefore every board that reviewed my records had the opportunity to observe these adverse documents, all which would have had an impact on my selection.  Further, current AMEDD career managers have also seen these documents and have openly directed their prejudice against me as I pointed out in my request for reconsideration, dtd Feb17, 2007."  

7.  The applicant continues by stating that he contacted Mr. A______ in July 2007 to request required action to attain relief and no action was taken.  Based on the information obtained from the Army Review Boards Agency (ARBA) in December 2007, he contacted Mr. E__ L___ and he validated that the ABCMR action to expunge his records had not been accomplished.  While Mr. L____ is processing the material error on PERMS, his hard copy OMPF remains uncorrected and open for scrutiny by HRC, the National Guard Bureau, and Retiree Recall personnel managers.  

8.  The applicant further references ABCMR Decision Document Number AR200106226, paragraph 4c under "Recommendation" which directs that all documents relating to his now voided non-selection for promotion and discharge or transfer be expunged from his military records.  He states that a review of PERMS reflects that this action was not accomplished.  

9.  The applicant states that the material errors in the previous reconsiderations should be voided and expunged.  Since adverse documents remained in his file, this directly influenced the review of his records by the SSB in December 2004, June 2005, and July 2006.  He believes that the corrections were not made because he was in a retired status and that his records were closed out by the National Guard Bureau.  

10.  The applicant provides documents as listed in the Table of Contents (Tabs A through G).  He references documents enclosed at Tabs H through I; however, these documents are not available.  

11.  On 28 January 2009, the applicant submitted new issues and additional supporting documents (some of the documents were previously submitted with his request for reconsideration - See Tabs 1 through 7).  

12.  The applicant states, in effect, that he would like to serve in a position where he is skill-qualified and he can continue to meet the needs of the Army as a Military Police Officer.  He states he has served as a Branch Chief of the Law and Order Branch within the Provost Marshal Office of a Joint Command (CENTCOM), but due to an administrative error of HRC and administrative mismanagement, he is assigned to a branch in which he has no skills or qualifications.  He volunteered to be recalled in a time of war and has performed in a functional area which meets the needs of the Joint Command he supports (Military Police).  He also states that he was recalled to active duty based on a need of Combat Arms Officers, his experience as a police officer, and his civilian employment.  His initial orders directed him to attend "re-greening" at Fort Sill, OK because his AOC was Field Artillery (FA).  Upon completion of "re-greening",  he was sent to Iraq.  He served with Multi National Security Transition Command, Civilian Police Transition Team as a Combat Arms Officer Branch Immaterial 02AOO as the Commandant of the Iraqi Public Order Police Academy.  In this duty position, he utilized his civilian police skills.  
13.  The applicant also states that he was asked to remain on active duty to assume a position within the Provost Marshal's office at CENTCOM where he has worked for the past four years.  He has performed various duties as a Military Police Officer  The applicant alleges that he has been denied to serve in the correct AOC due to administrative and material errors by HRC.  He cites two primary reasons, which include his MRD and reappointment.  He states that his MRD was incorrectly identified as March 2000 at the time of his recall.  His MRD was amended to reflect July 2005 on 25 September 2006, almost 18 months after he returned to active duty.  Based on responses from HRC, he was informed that he would have to be reappointed in the Military Police Corps because the AMEDD is a Specialty Branch.  Documentation from HRC reflected that a reappointment action could not be accomplished because he had reached his MRD.  He alleges that he was within the time frame to have requested reappointment to another branch within the window of January [2005] to July 2005.  This fact was not disputed by HRC, but action from this Board is required to validate and grant him the opportunity to request reappointment under the time lines.

14.  The applicant references Army Regulation 601-10 (Management and Mobilization of Retired Soldiers of the Army), paragraph 2-7a which clarifies that HRC is responsible for revalidating his records and reclassifying him to an AOC that meets the needs of the Army.  This paragraph states "Retired soldiers who have outdated military skills as shown by obsolete identification codes, or who have attained new skills may be reclassified to meet the needs of the Army."  Further, paragraph 1b directs that officers of the specialty branches, AMEDD, may also be reclassified with approval of Headquarters, Department of the Army (HQDA).  He states that this was a requirement that was not asked of him nor did HRC take the course of action to initiate the reclassification per this regulation.  In conversations with COL C_____, former Director of AMEDD Operations at HRC, he was informed that AMEDD Branch would not have an issue releasing him to Military Police Corps.  Based on discrediting comments from a Major F___, he believes that he will not receive any favorable personnel actions from anyone in AMEDD.  This is a further concern that he be reclassified to a branch outside the realm of personal vendettas.  

15.  The applicant continues by stating that an alternate course of action would have been to reclassify him to his original basic branch of FA, to have him complete the Military Police Transition Course, and to have 31 AOC added as his secondary AOC.  He states that there are no restrictions on Army Promotion List (APL) officers to hold additional AOCs.  

16.  The applicant alleges that AMEDD mismanaged his records in that his secondary AOC was deleted from his OMPF and it is referenced as being an "outdated" AOC.  He states he performed in the 13A Combat Arms AOC in 2005 through 2006 until AMEDD deleted this AOC.  He states he provided course completion documentation which verifies him as being qualified as FA and this should be reflected in his OMPF.  He states he has not performed any viable AMEDD officer duties since 1995.  

17.  The applicant also requests that his secondary AOC of 13A be reflected as a designation of his AOC.  Based on documentation from the New York Army National Guard (NYARNG) form stipulated that he held both 70 series and 13E AOC.  He references the Point Paper (Enclosure 7) which outlines requirements to attain officer branch transfers to Military Police Corps.  This document reflects that commands initiate a DA Form 4187 (Personnel Action), along with completion certificate for the Military Police Transition Course to HRC.  Based on the guidance, he completed the Military Police Transition Course  prior to the 1 April 2008 deadline.  At the time he received documents from the ABCMR directing him to contact HRC for adjudication, the DA Form 4187 had been forwarded to HRC.  No further action had been taken so he contacted 
Mr. G_____ at HRC, Reappointment Branch and Major F_____ at AMEDD Branch.  The applicant would like the Board to research every avenue to allow him to accomplish his request so he can remain on active duty to do the job that supports our Army and keep kids alive.  

18.  As additional issues, the applicant further requests that reclassification to the Military Police Branch be backdated prior to his MRD (January - July 2005); reclassification to FA Branch and award prior to MRD (January - July 2005) with award of secondary AOC of 31A (Military Police); or waiver of MRD requirement for personal actions.

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 ABCMR in Docket Number AR20070004151 on 16 October 2007.

2.  The applicant provided new arguments and evidence (Tabs A through G) regarding his request for reconsideration of promotion to COL by a SSB and his statements and documents (Tabs 1 through 7) regarding changing his AOC to Military Police Corps are new issues that will be considered by the Board.  

3.  The applicant was born on 19 December 1953.  After having had prior enlisted service in the Army National Guard and as a Reserve of the Army, the applicant was appointed as a second lieutenant in the NYARNG  on 14 June 1977 in the FA Branch.  He was promoted to first lieutenant on 13 June 1980.
4.  State of New York, Executive Department, Division of Military and Naval Affairs, Albany, NY Orders 226-44, dated 24 November 1980, show the applicant was branch transferred from FA to the Medical Service Corps (MSC) on 6 November 1980.  

5.  State of New York, Executive Department, Division of Military and Naval Affairs, Albany, NY Orders 155-73, dated 11 August 1981, show the applicant was promoted to captain on 27 July 1981.  He was granted Federal Recognition by Departments of the Army and Air Force, National Guard Bureau, Special Order Number 189 AR, dated 30 September 1981, effective 27 July 1981.  These orders show his branch as MSC.  

6.  State of New York, Executive Department, Division of Military and Naval Affairs, Albany, NY Orders 169-30, dated 30 August 1985, show the applicant was promoted to major (MAJ) on 15 August 1985.  He was granted Federal Recognition by Departments of the Army and Air Force, National Guard Bureau, Special Order Number 180 AR, dated 17 September 1985, effective 15 August 1985.  These orders show his branch as MSC.  

7.  He was ordered to active duty in an Active Guard Reserve (AGR) status with the NYARNG under Title 32, United States Code (USC) from 1 August 1981 through 15 February 1988.  

8.  He was ordered to active duty in an AGR status again with the NYARNG under Title 32, USC on 16 February 1988 for a period of 3 years.  

9.  Office of The Adjutant General, State of New York, Latham, NY, Orders 
226-30, dated 23 November 1990, show the applicant was branch transferred from MSC to FA with an effective date of 1 November 1990.  He was granted Federal Recognition by Departments of the Army and Air Force, National Guard Bureau, Special Order Number 243 AR, dated 18 December 1990, effective 1 November 1990. 

10.  On 28 September 1992, he was issued his "20-Year Letter."  

11.  Office of The Adjutant General, State of New York, Latham, NY, Orders 
253-28, dated 31 December 1992, show the applicant was reappointed in the NYARNG as a MAJ in the MSC effective 15 December 1992.  He was granted Federal Recognition by Departments of the Army and Air Force, National Guard Bureau, Special Order Number 56 AR, dated 15 June 1993, effective 15 December 1992.

12.  His promotion eligibility date (PED) to lieutenant colonel (LTC) was 13 June 1994.  

13.  The applicant was considered for promotion to LTC by the June 1994 Reserve Component, AMEDD Promotion Selection Board and was not selected for promotion.  He was notified of his non-selection on 25 July 1994.

14.  On 24 August 1994, the applicant requested early retirement under the Temporary Early Retirement Authority (TERA).  On 2 September 1994, his request was approved by the NYARNG.  

15.  On 5 October 1994, the ABCMR denied the applicant's request to remove an adverse OER from his records.  

16.  NYARNG Form 12 (Designation of Branch, Functional Area, Award of AOC and/or Skill Identifiers under the Officer Personnel Management System (OPMS), dated 2 November 1994, shows his branch code as 67 (MSC) and functional area as 70 (Health Services).  This document shows he was also awarded AOC 67A (Health Services), 70H (Health Service Plans, Operations, Intelligence, Security and Training) , 13E (Cannon FA), and 70F (Health Services Human Resources).  
 
17.  On 30 June 1995, the applicant was separated from the NYARNG under TERA with over 15 years and 3 months active Federal service and an additional 16 months of section 1405 service for retired pay based on a total of 16 years and 8 months of active Federal service.  On the following date, he was transferred to the U.S. Army Reserve Control Group (Retired).  

18.  The applicant was also considered for promotion to LTC by the June 1995 Reserve Component, AMEDD Promotion Selection Board and was not selected for promotion.  His name was later removed from that list because he was no longer a member of the Ready Reserve prior to the board approval date.  

19.  On 28 January 1998, the ABCMR denied the applicant's request for correction of his records to show he was selected for promotion to the rank of LTC under the 1993 criteria.  

20.  On 2 September 1998, the ABCMR recommended that the applicant's 6 November 1993 Memorandum of Reprimand (MOR) and all associated documents be removed from the OMPF and filed with the NJP proceedings.  The ABCMR also determined that the applicant's adverse OER for the period ending 24 October 1993 was not in error or unjust and should remain in his OMPF.  

21.  On 10 October 2001, the ABCMR determined that the applicant was entitled to reconsideration for promotion to LTC under 1994 criteria based on the removal of the previously mentioned LOR.  That Board decision also directed his return to the Ready Reserve if he was selected for promotion and if he had been separated from the Ready Reserve based on his previous non-selection.  It was later discovered that the 1993 Reserve Components Selection Board omitted his records from consideration and that he should also receive consideration under 1993 criteria.

22.  The ABCMR Proceedings, Document Number AR2001062261, dated 10 October 2001, paragraphs 4b and 4c under "Recommendation" states "that an adequate explanation be placed in his official personnel files to show that the gap in his officer evaluation reports, from the dates of his now-voided discharge transfer to the Retired Reserve to the date of return to active Reserve status, was not caused by any fault on his part, and to insure that he is not prejudiced thereby in the consideration of any future personnel actions; and "that all documents related to his now-voided non-selection for promotion, and his discharge or transfer be expunged from his official military records."

23.  In December 2001, the ABCMR determined the applicant was entitled to reconsideration for promotion to LTC under the 1994 criteria and recommended that an adequate explanation be placed in the OMPF to show that the gap in his OERs was not caused by any fault on his part.  Subsequent to this decision, he was selected for promotion to LTC by an SSB under the 1994 criteria in 2002.  

24.  On 1 February 2002 a standby advisory board (STAB) non-selected the applicant for promotion to LTC under 1993 criteria.  

25.  The applicant was notified by memorandum, dated 13 December 2002, of his promotion selection.  His correct DOR should have been shown as 13 June 1994 based on 17 years commissioned service.

26.  On 17 January 2003, the Office of Promotions, Reserve Components, Total Army Personnel Command notified the NYARNG of the applicant's selection for promotion to LTC and that his transfer to the Retired Reserve should be voided.

27.  The ABCMR Record of Proceedings, Docket Number AR 2003093661, dated 1 April 2004, recommended that the applicant's NYARNG and Adjutant General of the State of New York records be corrected by revoking his 30 June 1995 separation from an AGR and ARNG status; by removing from his records all documents and references to his separation of 30 June 1995; by showing that he was promoted to LTC effective 1 July 1995; by showing that he continued to serve in an appropriate AGR LTC position with entitlement to all pay and allowances from his now revoked separation of 30 June 1995 to the date of his achieving a total of 20 years active Federal service; and by showing that he was separated from his AGR status as a LTC and from the ARNG and transferred to the Retired Reserve by reason of completion of required service for retirement on the date he would have achieved 20 years of active Federal service.

28.  Office of the Adjutant General, State of New York, Orders 253-1138, dated 9 September 2004, promoted the applicant to the rank of LTC with an effective date and DOR of 1 July 1995 in AOC 67 (MSC).  He was granted Federal Recognition for promotion to LTC effective 1 July 1995 by Departments of the Army and the Air Force, National Guard Bureau, Special Orders Number 222 AR, dated 10 September 2004.  These orders show his branch as "MS."

29.  Office of the Adjutant General, State of New York, Orders 294-1002, dated 20 October 2004, released the applicant from active duty on 31 March 2000 and on the following date, placed him on the retired list in the rank of LTC.  

30.  Department of the Army, U.S. Army Human Resources Command, St. Louis, MO Orders M-12-406369, dated 23 December 2004, ordered the applicant to active duty in retired status in support of Operation Iraqi Freedom with a reporting date of 2 January 2005.  These orders show his AOC as 13A.

31.  In a 25 November 2005 advisory opinion from the Chief, Special Actions, Office of Promotions, Reserve Components, Human Resources Command – St. Louis, MO, it stated, in part, that the applicant was considered by the 2002SS07SSB under the 1994 year criteria and recommended for promotion to LTC.  Based on this action, it was determined that the applicant had a basis for consideration by a SSB under the 1999 year criteria (LTC to COL) as an omission.  The applicant's record was considered by the 2005SS01R1SSB and he was not recommended for promotion.  Reasons for selection or non-selection are unknown because statutory requirements prevent disclosure of board proceedings to anyone not a member of the board.  However, the absence of current grade performance evaluations may have been a major factor in the board's decision.

32.  The applicant was issued an OER for the period ending 2 December 2005, which shows his principal duty title as Commandant, Numaniyah Public Order Academy.  This report shows his branch as FA (AOC 13A).

33.  Department of the Army, U.S. Army Human Resources Command, St. Louis, MO Orders M-12-505978, dated 27 December 2005, ordered the applicant to active duty in retired status in support of Operation Enduring Freedom with a reporting date of 2 January 2006.  These orders show his AOC as 13A.
34.  The ABCMR Record of Proceedings, Docket Number AR20050013079, dated 22 June 2006, ABCMR denied the applicant's request for promotion reconsideration to COL by a SSB under the 1999 year criteria or promotion consideration to COL by a mandatory promotion board under the 2006 year criteria.  These proceedings indicate the applicant was advised of his consideration and non-selection for promotion to COL by a SSB under the 1999 criteria In a Notification of Promotion Status memorandum, dated 25 July 2005 from HRC.  The memorandum also advised that the SSB examined the performance portion of his OMPF.  The specific reasons for his non-selection were not known, as selection boards do not record their reasons for selection or non-selection.

35.  Department of the Army, U.S. Army Human Resources Command, Alexandria, VA orders A-11-722341, dated 13 November 2007, shows the applicant was recalled to active duty from retired status on 2 January 2008 as a Military Police Force Protection Plans Officer.  These orders show his AOC as 70B and Basic Branch as MSC.  

36.  On 17 April 2008, the applicant submitted a request for award of AOC of 31A. The commanding officer recommended approval.  The applicant completed the requirements for the Military Police Transition Course in April 2008.  

37.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Special Actions Branch, HRC-STL.  It was opined that the applicant had a basis for an additional SSB based on the non-rated statement not being completed and that all of the adverse documents were not removed from his OMPF.  The opinion recommended that the ABCMR direct the National Guard Bureau to issue a non-rated statement based on National Guard service for the period 1 July 1995 through March 2000.  Once accomplished and all adverse documents removed from the applicant's OMPF, return case to the Office of Promotions and this office will send applicant to another SSB based on omission under 1999 criteria.  The advisory opinion pointed out that the applicant stated he was not offered an opportunity to review his records prior to having them presented to the board.  Paragraph 3-4 of Army Regulation 135-155 specifically is for mandatory selection boards not SSBs.  Therefore, this does not pertain to him.  The opinion stated that the applicant was given the opportunity to submit a promotion packet and this office received that packet on or about 10 December 2004.

38.  A copy of the advisory opinion was forwarded to the applicant for his information and possible comment.  On 15 January 2009, the applicant concurred with the advisory opinion rendered in his case.  

39.  Army Regulation 601-10 provides policy, responsibilities, and procedures for recalling retired military personnel in time of a national emergency, mobilization, or war when declared by the President or Congress, in the interest of national defense, or as otherwise authorized by law.  Paragraph 2-7a(3) states that skill reclassification will not include direct appointment to warrant officer (WO) or commissioned officer grades.  The Surgeon General (TSG) is the proponent for classifying AMEDD officers, WOs, and selected enlisted skills as wells as the agent for confirmation of professional licenses.  As an exception to policy, the Army Personnel Center [currently known as HRC-Alexandria, VA] may reclassify retired AMEDD officers or WOs.  

DISCUSSION AND CONCLUSIONS:

1.  Based on the advisory opinion from HRC-STL, the applicant's records were not corrected to include a non-rated statement based on National Guard service for the period 1 July 1995 through March 2000 and that all of the adverse documents were not removed from his OMPF.  

2.  Through no fault of the applicant, these corrections were not made to his OMPF.  As a result, it appears that these omissions would constitute a "material error" in his records.  Therefore, his records should be reconsidered by a SSB for promotion to COL under the 1999 criteria.  

3.  The applicant's new issue regarding his request for reclassification of his  AOC from AMEDD to the Military Police Corps has been carefully considered.  While it is understandable that the applicant desires to branch transfer to AOC 31A (Military Police), there appears to be no error or injustice that exists in this case regarding this issue.  Therefore, there is no basis to warrant relief of this portion of the applicant's request.  

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 amendment of the ABCMR’s decision in Docket Number AR20070004151, dated 16 October 2007.  As a result, the Board recommends that all State Army National Guard and Department of the Army records of the individual concerned be submitted to a duly constituted SSB for promotion reconsideration to COL under 1999 criteria after first ensuring that all corrections directed by previous ABCMR decisions are implemented.

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 reclassification of his AOC from AMEDD to the Military Police Corps.




      _______ _  XXX _______   ___
               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)                                         AR20080008046





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080008046



12


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1