IN THE CASE OF:	  

		BOARD DATE:	  24 September 2008

		DOCKET NUMBER:  AR20080012347 


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 that he be promoted to the ranks of Lieutenant Colonel (LTC) and Colonel (COL), that he be placed on the Retired List in the rank of COL with entitlement to all back pay and allowances and that his records be corrected to show he was awarded the Joint Meritorious Unit Award (JMUA) and two bronze service stars for wear on his already awarded Iraq Campaign Medal.  As an alternative, he requests that the Board direct a Special Selection Board to select him for promotion to the ranks of LTC and COL. 

2.  The applicant states, in effect, that he has been improperly denied promotions to the ranks of LTC and COL.  He goes on to state that he served past the mandatory removal dates (MRD) for both grades and should have been promoted to those grades based on his years of service because the courts have previously determined that constructive service counts the same as service that is actually served.  He also states that at some point during his nearly 52 months of post-reinstatement actual active duty, the Government became obligated to comply with mandatory promotion and retirement provisions of Title 10, United States Code, sections 637(a)(3), 633, and 634. It has not done so, thus his selection for promotion to LTC and COL have been improperly denied and the Board is obligated to correct this injustice.  Additionally, he was not afforded 90 days notice to transition from the Army because he was not notified until 8 February 2007, which was 82 days before his retirement.   

3.  The applicant provides two binders containing his argument and evidence which is outlined in a table of contents in each binder.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as a Regular Army infantry second lieutenant upon graduation from the Virginia Military Institute on 14 May 1977.  He successfully completed his training and was assigned to Fort Hood, Texas for his first permanent duty assignment.  He was promoted to the rank of first lieutenant on 8 June 1979 and to the rank of captain on 4 April 1981.     

2.  On 20 August 1987, the applicant was transferred to Wuerzberg, Germany on a  “with-dependents tour” with his family (wife and three children) and was assigned to a forward deployed, mechanized infantry Division for duty as the Public Affairs Officer. He was selected for promotion to the rank of major in the Army of the United States and the Senate confirmed the selection list on 17 December 1987.     

3.  On 4 January 1989, orders were published by the Total Army Personnel Agency (Provisional), now known as the Human Resources Command – Alexandria (HRC-Alex), which announced the applicant’s promotion to the rank of major effective 1 February 1989.  Those orders specified that the promotion was not valid if the officer was not in a promotable status on the effective date of promotion.  

4.  Meanwhile, the applicant’s wife informed officers in his unit that he was seeing another woman and requested assistance.  The applicant confessed the adultery to a senior officer who was also the unit’s staff judge advocate (SJA).  The applicant was not advised of his rights under the Uniform Code of Military Justice before his confession; however, other subsequent independent evidence also confirmed the adultery.

5.  The applicant’s records were flagged to prevent him from receiving any favorable personnel actions, including service school attendance and promotion to major, for which he was previously selected.

6.  The applicant received an adverse change of duty Officer Evaluation Report (OER) covering the period from 25 July 1988 through 29 January 1989 which indicated that the applicant engaged in an adulterous affair with a professional (female) colleague and indicated that he had a downturn in performance.  Both the rater (a colonel) and the senior rater (a major general) recommended that he not be promoted.  The report was referred to the applicant for comment and he responded to the effect, that there was not a downturn in performance and contended that the OER did not accurately reflect his performance during the rated period.  There is no evidence to show that he appealed the OER to the Officer Special Review Board (OSRB) or that he has ever successfully appealed that OER.

7.  On 1 February 1989, orders were published by the Total Army Personnel Agency Command (TAPC) which revoked the applicant’s promotion to the rank of major.  He was subsequently administratively removed from the Promotion Selection List.

8.  On 18 August 1989, he was notified that he was required to show cause for retention on active duty before a General Officer Show Cause board because of substandard performance of duty and misconduct which may lead to a discharge under other than honorable conditions.  He was also advised that he may submit his resignation or request for discharge in lieu of elimination, or request appearance before a board of inquiry.

9.  On 14 March 1990, the applicant waived his right to appear before a board of officer to show cause for retention on active duty and he requested discharge in lieu of further elimination proceedings.  He also stated that he understood that if his request for discharge was accepted he understood that he would be furnished an Honorable, General or Under other than Honorable Conditions (UOTHC) service characterization as determined by Headquarters, Department of the Army.

10.  On 13 May 1990, the Deputy Assistant Secretary of the Army approved the applicant’s request for discharge in lieu of elimination and directed that the applicant be honorably discharged under the provisions of Army Regulation   635-120, chapter 8, due to misconduct, moral or professional dereliction.

11.  Accordingly, the applicant was transferred to Fort Dix, New Jersey, where he was honorably discharged on 1 June 1990, under the provisions of Army Regulation 635-120, chapter 8, due to misconduct, moral or professional dereliction.  He had served 13 years and 18 days of total active service.  At the time of his discharge he was provided copies 1 and 4 of his DD Form 214. 

12.  On 4 January 1991, the applicant submitted a request for appointment as a Reserve Commissioned Officer as an exception to the regulatory policy declaring him ineligible for appointment.  He cited as the basis for his request that he had been improperly advised by his military counsel that he could enter the Reserve Component if he received an honorable discharge, which affected his decision to request discharge instead of appearing before a board of inquiry.  He also contended that his rights had been violated when his rights had not been read to him before he admitted to the charge of adultery and that the two legal counsels involved had been reprimanded for their conduct.  His request was forwarded to the Department of the Army, Deputy Chief of Staff for Personnel (DCSPER) and officials at that agency opined that the current Army force reductions at the time necessitated appointing only those individuals who are exceptionally qualified to fill a specific United States Army Reserve need.  He was advised that he did not possess any unique qualifications that would justify granting him an exceptional waiver.  The applicant’s request for appointment was denied on 13 August 1991.

13. In 1993, the applicant applied to this Board requesting that his discharge be set aside, that he be reinstated to the Regular Army, that the action removing him from the promotion list to the rank of major be set aside and expunged from his records, that he promoted to the rank of major, that his OER covering the period from 25 July 1988 through 29 January 1989 and two subsequent OERs covering the period from 30 January 1980 through 31 May 1990 be removed from his records, that all records related to his discharge be removed from his records and that he be paid back pay and allowances from the date of his discharge.  The Board denied his request on 26 June 1996. 

14.  The applicant filed suit in the United States Court of Federal Claims (Tippett v. United States, No 96-308C Fed.C 1997) and that court dismissed his case for lack of jurisdiction because he had failed to show that his discharge was involuntary.

15.  The applicant appealed the decision to the United States Federal Circuit Court of Appeals (Tippett v. United States No 98-5005) alleging that his discharge was involuntary because he requested it after receiving erroneous advice from a government-provided military lawyer.  That court opined that the applicant had relied on the mis-leading advice to his detriment and made his discharge involuntary.  The court vacated the decision of the Court of Federal Claims and remanded it further proceedings.

16.  The United States Court of Appeals for the Federal Circuit Court (Tippett v. United States 28 Fed. Appx. 942 (2001)  heard the case and reviewed the applicant’s contentions that he was not informed that his DD Form 214 would contain a negative connotation or that he would have to obtain waivers from the Secretary of the Army before he could join the Reserves.  In a two to one decision, that court determined that he had been involuntarily discharged because he had relied to his detriment on information received from the government which led him to relinquish his right to proceed to a board of inquiry.  That court ordered that the applicant was to be reinstated in the Army at the rank of captain as of the date of his discharge with credit for active duty service up to the date of his reinstatement, that he be paid back pay and allowances from the date of his discharge to the date of reinstatement (less appropriate offsets) and such other relief as appropriate.  The applicant did not appeal and the judgment became final.

17.  The applicant contacted the Government attorneys in May 2002 and informed them that he wished to return to active duty.  On 3 January 2003, orders were published by the Total Army Personnel Command in Alexandria, Virginia (now known as HRC-Alex) that voided his 1 June 1990 discharge and reinstated the applicant to active duty effective 16 June 2003.  He had 25 years, 8 months and 2 days of active service and was 48 years of age at the time of his reinstatement as a result of the order of the court.  He was assigned to Headquarters, Training and Doctrine Command, Fort Monroe for duty at the Army National Guard Leadership Brigade, Camp Fettered, Reistertown, Maryland.  He remained there until 30 July 2004, when he was transferred to Kuwait for duty as a media relations officer.    

18.  He served 13 months in Kuwait and he provides documents to show that he traveled to Iraq as part of his duties and was involved in a vehicle accident in Iraq.   He was transferred to Fort McPherson, Georgia for duty as a public affairs officer. On 16 June 2005, orders were published by the HRC-Alex which promoted the applicant to the rank of major, effective 1 March 1989.  Although not explained in the available records, this was the original promotion to the rank of major from the list on which he had previously been administratively removed. As a result, he immediately became eligible for promotion consideration to the rank of LTC.

19.  On 15 October 2006, he was transferred to Fort Lewis, Washington to take command of an I Corps, Public Affairs Detachment that was deploying to Iraq.  He deployed on a temporary change of station (TCS) to Camp Victory, Iraq with his unit on 15 December 2006, in support of Operation Iraqi Freedom.  His orders specified that his unit would provide direct support to the public affairs requirements of the Commander, Multi-National Corps – Iraq (MNC-I).

20.  On 16 January 2007, the applicant received an electronic mail (email) message informing him that he would be given until 30 April 2007 to retire and was advised of the procedures to submit his retirement application.

21.  On 8 February 2007, a memorandum was dispatched from the HRC-Alex informing the applicant that based on his particular circumstances involving his Army Litigation and Headquarters, Department of the Army (HQDA) Special Omission Board situation, his mandatory retirement date (MRD) had been established as 30 April 2007. 

22.  The applicant departed Kuwait on 8 April 2007 and returned to Fort Lewis.  He was awarded the Bronze Star Medal for meritorious service as the commander 28th PAD and MNC-I Public Affairs Office Plans officer during the period of 21 December 2006 to 10 April 2007.

23.  On 30 April 2007, the applicant was honorably released from active duty and was placed on the Retired List in the rank of major effective 1 May 2007.  He was credited with 29 years, 11 months and 17 days of active service.

24.  A review of the applicant’s last three OERs on file covering the period from 1 January 2005 through 14 October 2006 indicate that the applicant failed his Army Physical Fitness Test (APFT) and that he failed to meet the height and weight standards of Army Regulation 600-9.  At the time he entered active duty in January 2003, he weighed 185 pounds.  The last OER on file, ending in October 2006, shows he weighed 229 pounds.   

25.  On 14 August 2007, a memorandum was dispatched from the HRC-Alex Promotions Branch informing the applicant that he was considered for promotion to LTC by two Department of the Army (DA) Special Selection Boards (SSBs) under the criteria and instructions established for the regularly constituted Fiscal Year (FY) 1993 and FY 1994 LTC, Army Promotion Selection Boards that recessed in April 1993 and February 1994. 

26.  In an undated memorandum from the HRC-Alex, with a suspense date of 1 March 2008, the applicant was advised that he was eligible for promotion reconsideration by a SSB for the FY93 and FY94 LTC Army Promotion Selection Boards.  He was also advised that he was allowed to submit a letter to the board president during these reconsiderations as part of his ongoing federal court proceedings.  He was also advised that the written communication to the selection board must comply with the guidance in Army Regulation 600-8-29, that it must be undated and must address only those events that occurred on or before 19 March 1994 and or 4 January 1994.  He was further advised that his promotion files would be constructed as they should have appeared on the convening dates of the boards.   However, that action has not occurred as of this date due to the applicant’s application to this Board.

27.  The orders and citation provided by the applicant for award of the JMUA show that the JMUA was awarded to Headquarters, MNC-I, Baghdad, Iraq for exceptionally meritorious service during the period of 15 December 2006 to 18 February 2008.  The orders specify that this award is for Headquarters only.  Service units and individuals assigned to service units in support of this unit are not eligible for this award. 

28.  Army Regulation 600-8-22, Military Awards, provides in pertinent part, that one bronze service star will be worn on the suspension and campaign ribbon of the Iraq Campaign Medal (ICM) for one or more days of participation in each designated campaign phase.  The designated ICM campaign phases and inclusive periods are:
							
   Liberation of Iraq / 19 March 2003 – 1 May 2003
							Transition of Iraq /   2 May 2003 – 28 June 2004
							Iraqi Governance / 29 June 2004 – 15 December 2005
							National Resolution / 16 December 2005 – TBA

29.  Army Regulation 635-5 serves as the authority for the preparation and distribution of the DD Form 214.  It provides, in pertinent part, that commanders or chiefs of transition centers will ensure that Copy 1 of the DD Form 214 is given to the Soldier when present on the separation date (or mailed to the Soldier after the separation date, and after ascertaining the Soldier is alive and well and the Soldier’s status is unchanged) and does not contain (1) the authority for separation (2) the narrative reason for separation (3) the Separation Code (4) the Reentry eligibility code.  The Soldier will also receive copy 4 of the DD Form 214 which contains the (1) authority for separation (2) narrative reason for separation (3) Reentry eligibility code (if applicable) (4) Separation Program Designator (SPD).  The DD Form 214 is prepared in eight copies and the only agencies authorized to receive a copy with the narrative reason and authority for separation is the Department of Veterans Affairs, Department of Labor, and State Department of Veterans Affairs.      

30.  Army Regulation 600-8-29, Officer Promotions, supports the objectives of the Army’s promotion system, which includes filling authorized spaces with the best qualified officers.  It also provides for career progression based upon recognition of an officer’s potential to serve in positions of increased responsibility.  Additionally, it precludes promoting the officer who is not eligible or becomes disqualified, thus providing an equitable system for all officers.

31.  Army Regulation 600-8-29 also provides the process for Special Selection Board (SSB) consideration.  It provides, in pertinent part, that officers being reconsidered by a SSB are not afforded the opportunity to correspond with the SSB.  The officer’s file will be constructed as it should have appeared on the convening date of the promotion board that failed to select the officer for promotion.  That regulation also provides that an officer’s promotion is automatically delayed (that is, the officer is not promoted in spite of the publication of promotion orders) when the officer is under, or should be under the suspension of favorable personnel actions is documented as being overweight or has failed the APFT.

32. Title 10, United States Code, Section 3911, provides, in effect, that The Secretary of the Army may, upon the officer’s request, retire a regular or reserve commissioned officer of the Army who has at least 20 years of active service in the Armed Forces of the United States.

33.  Title 10, United States Code, Section 1370, Retired Grade, provides, in pertinent part,  that unless entitled to a higher grade under some other provision of law, a commissioned officer (other than a commissioned warrant officer) of the Army who retires under any provision of law other than chapter 61 or 67 of this title shall be retired in the highest grade in which he or she served on active duty satisfactorily, as determined by the Secretary of the military department concerned for not less than 6 months.

34.  Title 10, United States Code, Section 637 provides, in pertinent part, that an officer in the Army who holds the Regular grade of captain and who is subject to discharge or retirement in accordance with section 632 of this title, may not be continued on active duty beyond the last day of the month in which he or she completed 20 years of active Federal service (AFS), unless he or she is promoted to the rank of major.  An officer who holds the regular grade of major may not be continued on active duty beyond the last day of the month in which he or she completed 24 years of AFS, unless he or she is promoted to the rank of LTC.  An officer who holds the regular grade of LTC may not be continued on active duty beyond the last day of the month in which he or she completed 28 years of AFS, unless he or she is promoted to the rank of COL.  An officer who holds the regular grade of COL may not be continued on active duty beyond the last day of the month in which he or she completed 30 years of AFS, unless he or she is promoted to the rank of Brigadier General.   

35.  Department of Defense Financial Management Regulation provides in section 10131, that retirement is effective on the first day of the month after in which retirement would otherwise be effective.  Retired pay will be computed on the current active duty basic pay rate in effect on the date of retirement.

36.  Department of the Army Pamphlet 600-3, Commissioned Officer Professional Development and Career Management outlines officer career development and career management programs for each of the Army’s career branches and functional area.  It does not prescribe the path of assignment or education assignments that will guarantee success, but rather describes the full spectrum of developmental opportunities an officer can expect throughout a career.  It provides, in pertinent part, that officers promoted from captain through colonel are selected by HQDA centralized board.  Selection boards are asked to recommend fully or best qualified officers from an inclusive zone of consideration.  Recommendations are based upon branch, functional area or area of concentration to ensure the army’s skill and grade mix balances with its needs.  Recommendations are base upon branch, MOS and functional area competency, the potential to serve in the higher grade and the whole person concept.  Factors include performance, embodiment of Army values, professional attributes and ethics, integrity and character, assignment history and professional development, military bearing and physical fitness, attitude, dedication and service, military and civilian education and training and concern for Soldiers and families.  

DISCUSSION AND CONCLUSIONS:

1.  While it is accepted that “constructive service” is considered the same as service that it actually served, it is also accepted that during such service, individuals do not follow the normal career pattern expected of an officer during the course of their career or have the credentials that their peers would have when competing for assignments and promotions.  Consequently, it is possible and more likely than not, that an officer who receives constructive service to the extent that the applicant received, will not be competitive with their peers when reviewed by selection boards.  However, promotions are based on demonstrated performance and potential to serve at the next higher grade. They are not entitlements and are not given for time served as the applicant has implied.  

2.  Notwithstanding that the court ordered the applicant to be reinstated to active duty after he had exceeded the MRD established by law for his grade,  there is nothing in the court’s decision to suggest that the court intended that he be unduly enriched by its action.  The applicant’s suggestion that he is entitled to promotion to the ranks of LTC and COL based solely on the amount of service he had been credited with would amount to undue enrichment and would afford him a benefit not afforded to others who compete for promotion and are not selected. The maximum years of service specified in 10 U.S.C. 634 for the ranks of CPT, MAJ, LTC and COL do not support the applicant’s essential argument that he automatically gets those promotions solely by virtue of his length of service.  10 U.S.C. subjects an officer to discharge or retirement for maximum years of service barring a selection for promotion to a higher grade.  This statute itself does not automatically bestow a promotion on an officer to the next higher grade upon exceeding the maximum years of service for that officer’s current grade.  Rather, notwithstanding these provisions, an officer may not be promoted unless chosen by a duly constituted board or SSB and subsequently confirmed.  This has not occurred in the applicant’s case and the Board may not simply promote him to LTC or COL. 

3.  It is conceded that the applicant should not have been allowed to have served on active duty after being reinstated by the court for more time than it took to process him for retirement.  However, for reasons not evident in the available records, he was allowed to do so and he did so rather successfully.  However, he is not entitled to receive windfall promotions for that service.

4.  It is also not evident in the available records why the applicant was reinstated to the original promotion list and promoted to the rank of major, when he was properly removed from the list for valid reasons.  Further, the court did not determine that he had been improperly removed from the promotion list or that he was improperly denied promotion to the rank of major.  However, the Board has a long history of not making individuals worse off than when they applied and thus his promotion will remain in tact. 

5.  While it is obvious that the applicant served on active duty beyond the MRD for CPT, Major and LTC, it is also obvious that it was a volitional act on his part to do so.  It is also noted that had the applicant been selected for promotion to the rank of LTC by an SSB while he was on active duty, he would in all likelihood not have been eligible to accept the promotion because his last three evaluation reports indicate that he did not meet height and weight standards and he did not pass his APFT.  Accordingly, even if an SSB using the FY93 and FY94 criteria were allowed to consider information in the applicant’s records since the dates of those original promotion boards, he would still not likely be selected for promotion.  The applicant cannot have it both ways - -if the boards were to consider information after the FY93 and FY94 LTC promotion board, the board, fairly, would consider his entire record.  The applicant’s APFT failures show that he was not adhering to Army standards and therefore did not have the potential for greater responsibility inherent in any promotion.  In this regard, the applicant seems to ignore the fact that promotions are not based solely on good performance, but reflect an overall assessment of that officer’s potential for positions of greater responsibility.  In any event, there are no automatic provisions for promotion to the ranks of LTC and COL based solely on time served.
   
6.  The applicant received consideration by two SSBs under the criteria for the FY93 and FY94 LTC Army Promotion Selection Boards and was not selected by either of those boards.  Therefore, in the absence of evidence to show that those boards were flawed in any way that is material to his case, the applicant is not entitled to reconsideration by a SSB for promotion to the rank of LTC.  Accordingly, the notice the applicant received informing him that he would receive a second consideration for promotion to LTC by the FY93 and FY94 is no longer applicable.  

7.  Although the applicant has chosen not to discuss his original misconduct, the fact remains that he did commit an act of misconduct that also affected his performance and potential.  There is no evidence that he has ever successfully appealed the issues involved or the adverse OER and as such they are still considered a valid part of his record to be considered by any and all selection boards. 

8.  The applicant’s assertion that he was not afforded 90 days notice prior to his retirement has been noted and found to lack merit.  The applicant received an email notification from a litigation attorney on 16 January 2007 informing him of his MRD on 30 April 2007 and effectively served as notification prior to a formal letter being dispatched.

9.  The applicant’s contention that the award of the JMUA should be added to his records has been noted and appears to be without merit.  The applicant’s orders clearly state that he was assigned as the commander of a PAD to provide support to the MNC-I.  The orders awarding the JMUA specifically states that the award was for headquarters only and that service units and individuals assigned to service units in support of the MNC-I are not eligible for the award.  Accordingly, it does not appear that he is eligible to receive that award.

10.  However, the applicant’s contention that he should be awarded two bronze service stars for wear on his ICM has been noted and found to have merit.  The applicant served in Iraq for at least 1 day during two separate campaigns and thus is entitled to be awarded two bronze service stars.

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 awarding him two bronze service stars for wear on his already awarded ICM. 

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 promotion to the ranks of LTC and COL, referral to a SSB for promotion consideration, and award of the JMUA.  




      _______ _   _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)                                         AR20080012347





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ABCMR Record of Proceedings (cont)                                         AR20080012347



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