IN THE CASE OF:	  

		BOARD DATE:	  16 December 2008

		DOCKET NUMBER:  AR20080010630 


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 defers to counsel.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant’s earlier request to adjust his major (MAJ) date of rank (DOR) to either September 1998, Spring 2003 or 2004, or 4 March 2005.

2.  Counsel states, first, the Board erroneously concluded that the applicant had voluntarily declined his promotion.  The Board’s decision was contrary to established case law on the issue of voluntariness.  Secondly, the applicant presents new evidence.  The evidence shows that his promotion was never transferred to the active component as the Government advisory opinion states.

3.  Counsel states even though the Board concluded that the applicant voluntarily declined promotion to MAJ in order to enter active duty, the Board did not reference a single document showing that he voluntarily declined or took any affirmative action to decline his promotion.  

4.  Counsel states that, in Kim v. United States, 47 Fed. Cl. 493 (Fed. Cl. 2000), the Court of Federal Claims held that:

	“A resignation is considered to have been…not voluntary, when: ‘(1) one side involuntarily accepted the terms of another; (2) the circumstances permitted no other alternative; and (3) that said circumstances were the result of coercive acts of the opposite party.’”

5.  Counsel states that under the Kim test, a decision is made involuntarily when an agency misrepresents information and the applicant detrimentally relies upon that misrepresentation.  In this case, the Army completely failed to provide the applicant with the information necessary to make an informed and voluntary choice.  The applicant does not believe that the Government’s position that the promotion became discretionary once transferred to the active component is an accurate statement of the law.  

6.  Counsel states that because the applicant was never notified that the promotion, once properly transferred, would become discretionary, he made the decision to accept the active component commission with blinders on.  The Government did not cite any regulation supporting the notion that the promotion would have been discretionary.  Thus, there is no possible way that the applicant could have known that he risked being denied the promotion.

7.  Counsel states the Government’s position was that the promotion action should have transferred to the active component.  The Government suggested in its advisory opinion that the promotion, once transferred, was discretionary.  A Freedom of Information Act request revealed that no record exists indicating whether promotion actions for the applicant were transferred from the Army National Guard (ARNG) to the active component.  There are no letters notifying the applicant of the denial of his promotion or the declination of his promotion.  The Army’s failure to transfer the promotion was a substantial error that prejudiced the applicant’s career.

8.  Counsel provides the original Board case with the advisory opinion; a letter, dated 24 April 2008, from Headquarters, U. S. Army Armor Center and Fort Knox, KY, subject:  Freedom of Information Act (FOIA) Request Number F_____; and a letter, dated 2 May 2008, from the U. S. Army Installation Management Command, Headquarters, U. S. Army Garrison Command, Fort Knox, KY, addressed to counsel.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060011946 on 5 June 2007.

2.  On 12 March 1987, the applicant was appointed a first lieutenant in the U. S. Army Reserve (USAR).  Effective 19 May 1989, he was appointed as a first lieutenant, Chaplain, in the Louisiana ARNG (LAARNG).  On 20 November 1990, he was promoted to captain.

3.  On 17 June 1997, the applicant completed a DA Form 160 (Application for Active Duty), and volunteered to enter active duty for an indefinite period.  

4.  A memorandum, dated 23 June 1997, notified the applicant he had been selected for promotion to MAJ by a Reserve Component Selection Board (RCSB).

5.  A memorandum, dated 30 October 1997, notified the National Guard Bureau (NGB) that the applicant was selected for promotion to MAJ and that he was eligible to be promoted on the later of the following dates:  his promotion eligibility date (PED), which was 19 November 1997; the date Federal Recognition was extended in the higher grade; or the date following the date Federal Recognition was terminated in his current Reserve grade.

6.  Orders, dated 1 May 1998, ordered the applicant to active duty as an obligated volunteer officer for 3 years in the rank of captain.  These orders also stated he was relieved from his current status on the day preceding the effective date of active duty.

7.  Headquarters, Louisiana National Guard, Office of The Adjutant General, Orders Number 230-016, dated 18 August 1998, promoted the applicant to MAJ effective 18 August 1998.

8.  The applicant’s NGB Form 22 shows that effective 20 August 1998 he was discharged from the ARNG and as a Reserve of the Army in order to accept a commission or appointment in another Armed Force.

9.  In his original application, the applicant stated in part, “I found out that I had been promoted to Major (as a Louisiana Army National Guard officer) after I entered Active Duty.  Due to this, the Army asked me to refuse the promotion, which I did, in order to stay on Active Duty.”  

10.  Neither the ARNG personnel electronic records management system (PERMS) nor his USAR PERMS contain a record of the applicant declining his promotion.  


11.  The applicant’s records do not contain a new USAR appointment letter or memorandum or a new oath of office, but on 26 August 1998 he entered active duty as an obligated volunteer officer for 3 years in the rank of captain.  He was assigned to Headquarters and Headquarters Company, 1st Battalion, 25th Aviation Regiment, Wheeler Army Air Field, Hawaii.

12.  The applicant was twice considered and not selected for promotion to MAJ while serving on active duty.  On 1 February 2005, he was discharged by reason of non-selection for permanent promotion.  

13.  A memorandum, dated 9 March 2005, shows the applicant was appointed as a captain, Chaplain, in the USAR, effective on his acceptance.  His Chronological Statement of Retirement Points indicates his acceptance was apparently effective 2 February 2005.  

14.  U. S. Army Human Resources Command, St. Louis (USAHRC – STL) Orders Number B-04-60330, dated 24 April 2006, promoted the applicant to  MAJ with an effective date and date of rank of 2 May 2005.  These orders were subsequently revoked.  USAHRC – STL Orders Number B-05-603901, dated     19 May 2006, promoted him to MAJ with an effective date and date of rank of      8 September 2005.

15.  On 8 September 2005, the applicant entered active duty in an Active Guard Reserve (AGR) status.

16.  Army Regulation 135-210 prescribes policies and procedures for ordering individual Soldiers of the Army National Guard of the United States (ARNGUS) and the USAR to active duty other than during a Presidential Selected Reserve Call-up, Partial, or Full Mobilization.  Paragraph 1-5a states that under guidance prescribed by this regulation Soldiers will be ordered to peacetime active duty voluntarily to fill actual or anticipated vacancies in the Active Army.  Paragraph  2-6 states officers will be ordered to active duty in their Reserve grade unless additional service credit is authorized.

17.  National Guard Regulation 600-100 prescribes policies and procedures governing, in part, the appointment, Federal Recognition, and separation of commissioned officers of the ARNG.  Chapter 8 states the promotion of officers in the ARNG is a function of the State.  A commissioned officer promoted by State authorities has a State status in the higher grade under which to function.  However, to be extended Federal Recognition in the higher grade, the officer must have satisfied the requirements prescribed in this chapter.  

18.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers), the version(s) in effect at the time (the regulation was updated on 1 February 1998), paragraph 4-19, stated that unit officers selected by a mandatory board would be promoted on their PED provided they were assigned to a position vacancy in the higher grade.  

19.  Army Regulation 135-155, section IV (Declination of Promotion), stated that ARNGUS commissioned officers selected for promotion to the next higher grade could decline promotion to the next higher grade for a period normally not to exceed 1 year (extensions may be granted, in 1-year increments, up to a maximum of 3 years).  The Governor or other proper authority of the State was the approval authority.  Unit officers would be retained on the promotion list for the maximum period authorized.  

20.  Title 10, U. S. Code, section 14317(b) states a Reserve officer who is on a promotion list as a result of selection for promotion by a mandatory promotion board or special selection board and who before being promoted is placed on the active duty list (ADL) of the same armed force and placed in the same competitive category shall, under regulations prescribed by the Secretary of Defense, be placed on the appropriate promotion list for officers on the ADL under chapter 36 (Promotion, Separation, and Involuntary Retirement of Officers on the ADL) of this Title.

21.  Department of Defense Instruction (DODI) Number 1310.01 (Rank and Seniority of Commissioned Officers) states an officer on the Reserve Active Status List who is on a promotion list who is placed on the ADL shall be placed on an appropriate promotion list for officers on the ADL under section 14317(b) of Title 10, U. S. Code provided the officer is on a promotion list as a result of selection for promotion by a mandatory promotion board or special selection board of the same armed force and placed in the same competitive category.  
The effective date of promotion and date of rank shall be the same as if the officer had been selected to the grade concerned by the promotion board for ADL officers.

22.  On 16 September 2008, the U. S. Army Human Resources Command informed the Board analyst that if the applicant had been placed on the ADL in accordance with Title 10, U. S. Code, section 14317(b), he would have been promoted to MAJ with a date of rank of 3 May 1999.  With a DOR of 3 May 1999, he would have been in the primary zone for the fiscal year 2005 Lieutenant 

Colonel (LTC) Chaplain promotion board that convened on 22 February 2005.  If selected for promotion to LTC, his active DOR would have been 3 September 2006.

23.  The U. S. Army Human Resources Command’s response was provided to the applicant’s counsel for comment or rebuttal.  On 29 September 2008, counsel responded by stating they agreed with any Board decision that 3 May 1999 is the applicant’s appropriate DOR to MAJ.  They also agreed that a DOR of 3 May 1999 would have placed him in the (active duty list) primary zone for the fiscal year 2005 LTC Chaplain promotion board that convened on 22 February 2005 and, if he had been selected for promotion to LTC, his DOR would have been     3 September 2006.

24.  Army Regulation 135-155 states, in pertinent part, an SSB will be convened to reconsider officers who were improperly omitted from consideration due to administrative error.

25.  Army Regulation 600-8-29 ([active duty] Officer Promotions) states, in pertinent part, an SSB will be convened to reconsider officers who were improperly omitted from consideration due to administrative error. 

DISCUSSION AND CONCLUSIONS:

1.  Counsel contended that the Board erroneously concluded that the applicant had voluntarily declined his promotion.  He contended that a Freedom of Information Act request revealed that no record exists of letters notifying the applicant of the denial of his promotion or the declination of his promotion.  

2.  Counsel contended that the Board did not reference a single document showing that the applicant voluntarily declined or took any affirmative action to decline his promotion.  However, that the State did, or should have, processed a request from the applicant to decline his promotion to MAJ, otherwise he could not have been held in his ARNG position awaiting a MAJ position to open.  

3.  The applicant had not yet been notified that he had been selected for promotion to MAJ when he applied for active duty.  In accordance with Army Regulation 135-210, Soldiers may be ordered to peacetime active duty voluntarily to fill actual or anticipated vacancies in the Active Army.  It appears the applicant was being processed for extended active duty to fill a captain’s position.  When he entered active duty, he was assigned to a battalion, and a chaplain position in a battalion is normally filled at the captain level.  Paragraph 2-6 of this regulation states that officers will be ordered to active duty in their Reserve grade.  The applicant may have been promoted to MAJ by the State, but he was never granted Federal Recognition.  Therefore, his Reserve grade upon entering active duty was still captain, not MAJ.

4.  However, it appears that the ARNG erroneously discharged the applicant from the State and as a Reserve of the Army effective 20 August 1998.  The applicant’s records do not contain a USAR appointment letter or memorandum or a new oath of office, but on 26 August 1998 he entered active duty as a USAR officer.  In addition, his active duty orders stated he was relieved from his current status on the day preceding the effective date of active duty.  That statement, combined with the fact there is no USAR appointment letter or memorandum or a new oath of office in his records, indicates that the applicant should not have been discharged as a Reserve of the Army but should have been transferred to the USAR Control Group (Reinforcement).

5.  Although the applicant applied for extended active duty before he was selected for promotion to MAJ, he did not enter active duty until more than a year after he was selected for promotion.  The section that processed his request for active duty could have checked with the promotions section before issuing his active duty orders to see if he had been selected for promotion.  If it had, it could have discovered that he had been selected for promotion to MAJ.  It could have then decided whether the applicant was still needed to fill an active Army commitment.  If he was not needed to fill a MAJ’s position it could have cancelled the applicant’s active duty action.

6.  However, the Army did not cancel the applicant’s active duty action.  As counsel correctly pointed out, the applicant’s promotion on active duty would not have been discretionary.  Both statutory and Department of Defense regulatory guidance is that a Reserve officer who is on a promotion list as a result of selection for promotion by a mandatory promotion board and who before being promoted is placed on the ADL of the same armed force and placed in the same competitive category shall be placed on the appropriate promotion list for officers on the ADL.

7.  Information obtained from the U. S. Army Human Resources Command indicated that if the applicant had been placed on the ADL in accordance with Title 10, U. S. Code, section 14317(b), he would have been promoted to MAJ with a date of rank of 3 May 1999.  With a date of rank of 3 May 1999, he would have been in the primary zone for the ADL fiscal year 2005 LTC Chaplain promotion board that convened on 22 February 2005.  However, he had been discharged on 1 February 2005.  


8.  In view of counsel's response to the advisory opinion (i.e., they agreed that a DOR of 3 May 1999 would have placed the applicant in the ADL primary zone  for the fiscal year 2005 LTC Chaplain promotion board that convened on            22 February 2005) it would be equitable at this time to void the applicant's           1 February 2005 discharge from active duty and to show he remained on active duty until 7 September 2005 (the date before he again re-entered active duty in an AGR status when he was released from active duty in the rank and grade of MAJ upon completing his required active service and transferred to the Control Group (Reinforcement) with immediate entrance on active duty in an AGR status. This would negate the requirement for the applicant to have been re-appointed in the USAR, which it appears he had to do effective 2 February 2005.  

9.  The applicant's records should then be sent before an SSB under the criteria for the fiscal year 2005 LTC Chaplain LTC ADL promotion board.  If he is selected for promotion, he may apply to this Board if he desires to have his records further corrected to show he was retained on active duty on the ADL in lieu of being on active duty in an AGR status.

10.  If the applicant is not selected for promotion by the fiscal year 2005 LTC Chaplain LTC ADL promotion board, it appears he would have been eligible for promotion consideration to LTC by an RCSB.  His records should be reviewed to determine when he met the eligibility criteria to be considered for promotion to LTC by a Reserve mandatory promotion board, and his records should then be submitted to an SSB for Reserve promotion consideration.  If he is selected for promotion to USAR lieutenant colonel, he should be appropriately processed for promotion under the applicable regulations and laws.

BOARD VOTE:

___XX_____  ___XX_____  ____XX____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20060011946 dated 

5 June 2007.  As a result, the Board recommends that all State Army National Guard Records and Department of the Army records of the individual concerned be corrected by:

     a.  amending his NGB Form 22 and any related separation orders to show he was discharged from the Army National Guard effective 20 August 1998 and transferred to the U. S. Army Reserve Control Group (Reinforcement);

     b.  showing he was placed on the ADL upon his entry on active duty on        26 August 1998 and that he was promoted to major with a date of rank and effective date of 3 May 1999; 

     c.  voiding his discharge of 1 February 2005 and voiding his presumed USAR appointment of 2 February 2005;

     d.  amending his DD Form 214 for the period ending 1 February 2005 to show he released from active duty in the rank and grade of major, O-4 effective date   7 September 2005 upon the completion of his required active service and showing he was transferred to the USAR Control Group (Reinforcement); 

     e.  paying to him any and all due back pay and allowances as a result of the above corrections;

     f.  revoking USAHRC – STL Orders Number B-05-603901, dated 19 May 2006, which promoted him to major with an effective date and date of rank of      8 September 2005;

     g.  sending his records before an SSB under the criteria for the fiscal year 2005 Chaplain Lieutenant Colonel ADL promotion board (and if he is selected for promotion, he may apply to this Board if he desires to have his records further corrected to show he was retained on active duty on the ADL in lieu of being on active duty in an AGR status); and

     h.  if he is not selected for promotion by the fiscal year 2005 LTC ADL promotion board, reviewing his records to determine when he met the eligibility criteria to be considered for promotion to lieutenant colonel by a Reserve mandatory promotion board and submitting his records to an SSB for Reserve promotion consideration and, if he is selected for promotion to USAR lieutenant 

colonel, he be appropriately processed for promotion under the applicable regulations and laws.




      _______ _ 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)                                         AR20080010630





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