BOARD DATE:	  March 2, 2010

		DOCKET NUMBER:  AR20090012219 


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 revocation of his orders to the Standby Reserve (Inactive List) and that he be promoted to the rank of colonel.

2.  The applicant states his orders to the Standby Reserve (Inactive List) were issued erroneously and should have been revoked.  He states that due to this error, his record was not considered by the 2007 Department of the Army (DA) Reserve Components Colonel AMEDD (Army Medical Department) Selection Board.  He further states that since there is no way of knowing the outcome of the promotion board for which he was erroneously excluded, he should be promoted to the rank of colonel.

3.  The applicant provides, in support of his application, copies of a chronological list of his attempts to correct his records; electronic mail (email), dated from 
21 September 2006 to 8 November 2006, between the applicant and the U.S. Army Human Resources Command, St. Louis, MO (HRC-STL); his orders transferring him to the Standby Reserve (Inactive List); email, dated from
21 June 2007 to 6 August 2007, between the applicant and HRC-STL; his orders transferring him back to U.S. Army Reserve (USAR) Control Group (Reinforcement); and email to the applicant from HRC-STL, dated 6 September 2007 and 6 February 2009.





CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned a second lieutenant in the USAR on 24 July 1980.  He served continuously until his transfer to the Retired Reserve.  He was promoted to the rank of lieutenant colonel effective 14 December 1998.

2.  On 31 August 2000, the applicant was notified he had completed the required years of qualifying reserve service and was eligible for retired pay on application at age 60 in accordance with Title 10, U.S. Code, Chapter 1223.

3.  The applicant was not selected for promotion by the DA Reserve Components AMEDD Selection Boards in 2002, 2003, 2005, and 2006.

4.  On 13 March 2005, the applicant was ordered to active duty in support of Operation Iraqi Freedom for a period of 545 days.  He was awarded the Bronze Star Medal for meritorious service during the period 11 June 2005 to 15 May 2006.  He was also awarded the Combat Action Badge for action on 18 April 2005.

5.  A Soldier Management System (SMS) [a part of iPERMS (interactive Personnel Electronic Records Management System)] entry, dated 19 June 2007, indicates the applicant failed to respond to a Military Service Obligation (MSO) letter (a copy of this letter is not a part of the applicant's official military personnel file (OMPF) on iPERMS and is not available for review).  The entry indicates he was assigned to the USAR Standby Reserve (Inactive Status List) on 19 June 2007.

6.  HRC-STL Orders C-06-719833, dated 19 June 2007, released the applicant from the USAR Control Group (Reinforcement) and assigned him to the Standby Reserve (Inactive List) effective 19 June 2007.

7.  Emails, dated from 21 June to 28 June 2007, between the applicant and HRC-STL indicate the applicant had responded to the MSO letter, but there was no record of the response at HRC-STL.  He indicated he desired to stay in the USAR Control Group (Reinforcement).

8.  An email, dated 2 July 2007, from Major M__d, West Region, AMEDD Directorate, HRC-STL informed the applicant that he was assigned to the IRR (Individual Ready Reserve).  Major M___d indicated he would ensure the orders transferring the applicant to the Standby Reserve would be revoked.


9.  An SMS entry, dated 6 August 2007, indicates the applicant's MSO letter was received, causing a change in his status.  However, the change was done incorrectly and his previous orders to the Standby Reserve could not be revoked for electronic data processing technical reasons.  The entry indicates that a Major M___r was taking the lead to have the situation corrected. 

10.  HRC-STL Orders C-08-725381, dated 15 August 2007, released the applicant from the Standby Reserve (Inactive List) and assigned him to the USAR Control Group (Reinforcement) effective that date.

11.  The convening date of the 2007 DA Reserve Components Colonel AMEDD Selection Board was 5 September 2007.

12.  HRC-STL Orders C-10-817130, dated 2 October 2008, released the applicant from the USAR Control Group (Reinforcement) and assigned him to the Retired Reserve based on his completion of the maximum authorized years of service.

13.  In the processing of this case an advisory opinion, dated 10 November 2009, was received from the Chief, Special Actions Branch, DA Promotions, HRC-STL. The advisory official stated that, due to the applicant having been transferred to the inactive list on 19 June 2007 and subsequently transferred back to the USAR Control Group (Reinforcement) on 15 August 2007, he was not on the Reserve Active Status List (RASL) for one continuous year prior to the convening date of the 2007 DA Reserve Components Colonel AMEDD Selection Board.  Therefore, he was not eligible for promotion consideration by that board.  The advisory official further stated that a selection board for colonel AMEDD did not convene in 2008.  The applicant was transferred to the Retired Reserve on 2 October 2008 due to maximum years of service.  Therefore, he was not eligible for promotion consideration by the 2009 Selection Board.  If the applicant's assignment to the inactive status is voided he would be eligible for DA Special Selection Board consideration under the 2007 criteria.

14.  On 17 November 2009, the applicant was provided a copy of the opinion for information and to allow him the opportunity to submit comments or a rebuttal.  No response has been received.

15.  An advisory opinion, dated 30 November 2009, was also received from the AMEDD Medical Team Chief, HRC-STL.  The advisory official states the applicant failed to respond to an MSO letter and he was transferred to the USAR Standby Reserve (Inactive List).

16.  On 2 December 2009, the applicant was provided a copy of this advisory opinion for comments or a rebuttal.  On 5 January 2010, the applicant provided a response.  The applicant states he did in fact submit the MSO paperwork although it is not posted in his iPERMS.  He states that he contacted HRC-STL as soon as he found out he was transferred to the Standby Reserve, as evidenced in the emails.  He knew the 2007 DA Reserve Components Colonel AMEDD Selection Board was his last chance for promotion prior to his mandatory retirement date.  He believes the preponderance of the evidence shows it was his intent to remain in the IRR and all attempts by HRC-STL failed to correct the error.

17.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) specifies that promotion consideration or reconsideration by an SSB may only be based on erroneous non-consideration or material error, which existed in the record at the time of consideration.  The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required civilian and/or military schooling.

18.  Paragraph 4.18 of Department of Defense Directive 1235.13 (Management of the IRR and the Inactive National Guard [ING]) states that individual Reservists who are qualified for retirement under Title 10, U.S. Code, Chapter 1223 (have attained 20 years of qualifying service for retirement pay) are required to attain 50 points each anniversary year to be retained in the Ready Reserve, including the IRR, or the active status list of the Standby Reserve.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his orders to the Standby Reserve (Inactive List) should be revoked and that he should be promoted to the rank of colonel.

2.  There is no record of the MSO letter sent to the applicant available for review. The advisory opinion from the Chief, AMEDD Medical Team Chief stated the applicant did not respond to the MSO letter until 6 August 2007 and due to his period on the inactive list, he is not eligible for a DA Special Selection Board consideration.  However, the email evidence shows he contacted HRC-STL as early as 21 June 2007.  In emails, dated 2 July 2007 and 6 August 2007, he was assured the orders transferring him to the Standby Reserve would be revoked.

3.  The applicant was advised by HRC-STL in two emails that his orders to the Standby Reserve would be revoked.  However, instead of revoking the orders transferring the applicant to the Standby Reserve, HRC-STL issued a second set of orders transferring him back to the USAR Control Group (Reinforcement).  
This caused a gap in the applicant's status on the RASL and resulted in his not having one continuous year on the RASL prior to the convening date of the 2007 selection board.  As a result, he was not eligible for promotion consideration.

4.  The Chief, Special Actions Branch, HRC-STL states if the applicant's assignment to the inactive status is voided he would be eligible for SSB consideration under the 2007 criteria.

5.  There is no evidence to support promoting the applicant to the rank of colonel without favorable consideration by an SSB.

6.  In view of the above, it would be appropriate to void HRC-STL Orders
C-06-719833, dated 19 June 2007, assigning the applicant to the Standby Reserve (Inactive List) and HRC-STL Orders C-08-725381, dated 15 August 2007, assigning him back to the USAR Control Group (Reinforcement).  As a result, his record would show he was continuously assigned to the USAR Control Group (Reinforcement) with no break in his service on the RASL.

7.  The applicant's records should then be placed before an SSB for promotion consideration under the 2007 DA Reserve Components Colonel AMEDD Selection Board criteria.  If selected for promotion, his orders to the Retired Reserve should be voided, his promotion effective date and date of rank should be established as if he had been originally selected by the 2007 board, he should be provided all back pay and allowances due as a result of the promotion, and he should be provided sufficient retirement points (for retirement purposes only) to provide for qualifying years for retirement pay from the date of his transfer to the Retired Reserve.  If not selected, he should be so notified.

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:
	a.  voiding HRC-STL Orders C-06-719833, dated 19 June 2007, assigning him to the Standby Reserve (Inactive List);

	b.  voiding HRC-STL Orders C-08-725381, dated 15 August 2007, assigning him to the USAR Control Group (Reinforcement);

	c.  submitting his records to an SSB for promotion consideration to colonel under the criteria followed by the 2007 DA Reserve Components Colonel AMEDD Selection Board;

	d.  if selected for promotion to colonel;

		(1)  voiding HRC-STL Orders C-10-817130, dated 2 October 2008, assigning him to the Retired Reserve;

		(2)  establishing his colonel promotion effective date and date of rank as if he had been originally selected by the 2007 DA Reserve Components Colonel AMEDD Selection Board;

		(3)  providing any back pay and allowance due as a result of the promotion; and

		(4)  providing sufficient retirement points (for retirement purposes only) to provide for qualifying years of service for retirement pay from the date of his transfer to the Retired Reserve.

	e.  if not selected for promotion he should be so notified.

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 colonel without a DA Special Selection Board consideration.



      __________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)                                         AR20090012219



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ABCMR Record of Proceedings (cont)                                         AR20090012219



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