IN THE CASE OF:	  

		BOARD DATE:	  4 January 2011

		DOCKET NUMBER:  AR20100007719 


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 to be reinstated in the U.S. Army Reserve (USAR).

2.  He states, in effect, that he completed Phase III of the U.S. Army Command and General Staff Officer Course (CGSOC) in June 2009.  He was also eligible for consideration for promotion by the September 2009 Lieutenant Colonel (LTC) Army Promotion List (APL) Reserve Component (RC) Promotion Selection Board.  Having a strong record and completing the required military education, he believed he was on track for promotion to LTC.  In November 2009, he was identified for discharge due to being a two-time non-select for promotion and reaching the maximum years in the lower grade for promotion from major (MAJ) to LTC.  His effective date of discharge from the USAR was 31 December 2009.

3.  He understands his removal from the USAR was mandatory by law, but at the time he was notified by the U.S. Army Reserve Command (USARC) G-1 he had already completed Phase III of the CGSOC and although the promotion results had not been released [January 2010], he had technically been selected for promotion to LTC.  Given the timeline, not only was the notification after the fact, so was his discharge.

4.  He requested an extension to his discharge date based on the timeliness of his notification and the pending results of the September 2009 LTC APL RC Promotion Selection Board.  On 8 December 2009, his request for extension was denied and he was discharged on 31 December 2009.  He finds it hard to understand why it was difficult granting him a short extension at least until the results of his promotion board were released.  It was only 3 weeks after his discharge that the LTC promotion board results were released and his name was on the list as being selected for promotion.

5.  He concludes he made a commitment to do everything the Army required of him to compete for promotion to LTC.  He states the late notification and denial of his request for extension were unreasonable given the circumstances.  

6.  The applicant provides:

* DA Form 1059 (Service School Academic Evaluation Report), dated 12 June 2009
* email message from the USARC G-1, dated 19 November 2009
* U.S. Army Human Resources Command (USAHRC) Military Personnel (MILPER) Message Number 09-110 
* email message from the USARC G-1, dated 29 November 2009
* two memoranda to the Commander, 1st Brigade, 104th Division, 84th Training Brigade, dated 25 November 2009
* email message to the USARC G-1, dated 8 December 2009
* email message from the USARC G-1, dated 8 December 2009
* Headquarters, USARC Orders 09-342-00097, dated 8 December 2009
* list of names from the 2009 RC LTC APL Promotion Selection Board results

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior enlisted service.  He was appointed as a USAR commissioned officer in the rank of second lieutenant/O-1 on 12 April 1985 in the Armor Branch.

2.  On 1 July 1989, he was promoted to the rank and grade of captain/O-3 and he successfully the completed the Aviation Officer Advanced Course on 18 September 1989.

3.  On 30 June 1996, he was promoted to the rank and grade of MAJ/O-4.

4.  On 4 February 2003, he was notified by memorandum from the Chief, Department of the Army (DA) Promotions, USAHRC-St. Louis (STL), that he was considered and non-selected by the 2002 LTC APL RC Promotion Selection Board.  The official stated, "The reasons for non-selection are unknown because statutory requirements prevent disclosure of the board proceedings to anyone other than a member of the board."

5.  On 19 February 2004, he was notified by memorandum from the Chief, DA Promotions, USAHRC-STL, that he was considered and non-selected by the 2003 RC LTC APL Promotion Selection Board.

6.  On 12 January 2006, he was notified by memorandum from the Chief, DA Promotions, USAHRC-STL, that he was considered and non-selected by the 2005 LTC APL RC Promotion Selection Board.

7.  On 20 February 2006, he was ordered to active duty in support of Operation Iraqi Freedom.

8.  On 7 January 2007, he was notified by memorandum from the Chief, DA Promotions, USAHRC-STL, that he was considered and non-selected by the 2006 LTC APL RC Promotion Selection Board.

9.  On 11 April 2007, he was released from active duty.

10.  By email, dated 3 June 2009, he was informed he had been identified for consideration by the 2009 LTC APL RC Promotion Board Promotion Board.

11.  A DA Form 1059, dated 12 June 2009, shows he successfully completed CGSOC.

12.  On 8 September 2009, the 2009 LTC APL RC Promotion Board convened.

13.  By email from the USARC G-1, dated 19 November 2009, the applicant was notified he had been identified as past the maximum time in service as allowed by law for officers who have been twice non-selected for promotion to LTC.

14.  By memorandum, dated 25 November 2009, he requested an extension of his discharge date based on the timeliness of his notification of discharge, the pending results of the 2009 LTC APL RC Promotion Selection Board, and verification of eligibility for Reserve sanctuary.

15.  By email from the USARC G-1, dated 8 December 2009, his request for extension was denied.  The author of the email stated, "I understand your plight.  However, we cannot extend you to await the results of the LTC promotion board. 
Nor can you transfer to the National Guard.  By law majors who are two-time pass-overs for promotion cannot exceed 24 years of commissioned service and must be removed from an active status.  As you do not have a 20-year letter, we could not transfer you to the Retired Reserve nor could we grant you sanctuary unless you have over 18 good years for retirement.  The only action remaining is discharge.  Therefore, orders were issued directing your discharge effective 31 December 2009."

16.  Headquarters, USARC, Orders 09-342-00097, dated 8 December, show he was honorably discharged from the USAR effective 31 December 2009 with 14 years, 6 months, and 26 days of qualified service.

17.  On 21 January 2010, the 2009 LTC APL RC Promotion Selection Board results were released and the applicant was recommended for promotion to LTC.

18.  Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) provides for the assignment, transfer, and separation of USAR personnel.  Paragraph 7-4b states that an officer who twice fails selection for promotion to MAJ will be discharged unless eligible for and requests transfer to the Retired Reserve.  Paragraph 7-12b states that officers who have over 18 years of qualifying service for retirement will be retained for up to 3 additional years in order to attain 20 years and officers who have over 19 years of qualifying service for retirement will be retained for up to 2 additional years in order to attain 20 qualifying years for retired pay at age 60.

19.  Army Regulation 135-180 (Army National Guard and Army Reserve Qualifying Service for Retired Pay Nonregular Service) provides the policy on nonregular service qualifying for retired pay at age 60.  It states to be eligible for retired pay at age 60, an individual must have completed a minimum of 20 years of qualifying service and the last 8 years must have been served in an RC.  The requirement to serve the last 8 years in an RC was later amended to the last 6 years, and on 26 April 2005 this requirement was reduced to zero years.  This regulation also specifies, in part, that each RC Soldier who completes the service required to be eligible for retired pay at age 60 will be notified in writing with a 20-year letter within 1 year after he/she completes the service.  Fifteen points are earned each year for Reserve membership.  Additional points must be earned by participation in Reserve training, active duty, or by completing correspondence courses.

20.  Title 10, U.S. Code, section 12646, pertains to retention of commissioned officers after completion of 18 years but less than 20 years of service.  It states, if on the date prescribed for the discharge or transfer from an active status of a Reserve commissioned officer he is entitled to be credited with at least 18 but less than 19 years of service computed under section 12732 of Title 10, he may not be discharged or transferred from an active status under chapter 573, 1407, or 1409 of this title or chapter 21 of Title 14 without his consent before the earlier of the following dates on which he is entitled to be credited with 20 years of service computed under section 12732 of this title or the third anniversary of the date on which he would otherwise be discharged or transferred from an active status.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be reinstated in the USAR.  His argument revolves around the fact that he had already completed Phase III of CGSOC and he had been discharged 3 weeks prior to the 2009 LTC APL RC Promotion Selection Board results which had selected him for promotion to LTC.  However, based on his two non-selections to LTC and based on the statutory guidance, he was required to be discharged from the USAR.  He was discharged for that reason on 31 December 2009

2.  With regard to his completion of the Phase III of the CGSOC prior to the 2009 LTC APL RC Promotion Selection Board, the evidence of record shows he was promoted to MAJ on 30 June 1996, and 13 years passed between the time he was promoted to MAJ and the time he completed Phase III of CGSOC.  This was more than sufficient time to complete Phase III of CGSC prior to reaching the maximum years at the rank and grade of MAJ.  Yet the applicant chooses to focus on an extension past his discharge date in order to have the promotion results of the 2009 LTC APL RC Promotion Selection Board to be in his favor for promotion to LTC.

3.  An officer is responsible for knowing when he will be considered for promotion and what the requirements are for promotion eligibility according to the regulation.  The applicant was correctly and justly discharged as a result of twice non-selection for mandatory promotion to LTC.  He was discharged prior to the 2009 LTC APL RC Promotion Selection Board results were published.  It is unfortunate, but is not unfair or unjust.

4.  His discharge for being twice non-selected for promotion was proper and equitable and there is no basis to grant the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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



      ____________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)                                         AR20100007719



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ABCMR Record of Proceedings (cont)                                         AR20100007719



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