IN THE CASE OF:	 

		BOARD DATE:	  20 May 2010

		DOCKET NUMBER:  AR20100014710 


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 restoration of his name to the 2009 Colonel (COL) promotion list and adjustment of his mandatory removal date (MRD) by 2 years.

2.  The applicant states the following:

	a.  He was involuntarily separated for years of service from the Army National Guard (ARNG) on 30 June 2009.  He subsequently learned that he had been selected for promotion to COL by the 2009 Reserve Components Selection Board (RCSB).  This selection would have automatically entitled him to 2 more years of service beyond his MRD.  However, the promotion list was approved 5 days after his separation.  He requested to be retained beyond his MRD but he was told it was not possible.  He has since returned to active duty and is currently a Retiree Recall officer working at the Pentagon.  He submitted his petition through the Department of the Army Inspector General (DAIG), the Massachusetts ARNG (MAARNG), and the Assistant Secretary of the Army (ASA) for Manpower and Reserve Affairs (M&RA).  He also submitted an electronic request to the Department of Defense Office of the IG.  

	b.  His issue is related to paragraph 2-5(h) (eligibility for consideration) of Army Regulation (AR) 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) which states that if an officer's MRD falls within 90 days of a promotion board's convene date, the officer's packet would be removed and not be considered by the promotion board.  The policy - which he cannot find in writing - that he feels warrants review, is the procedure followed when a promotion board's results are not officially approved (and subsequently released) within 90 days of the convene date, such as his situation.  He was properly considered and selected for promotion; however, he was subsequently scrubbed from the selection list because approval of the list took more than 90 days - in his case 118 days, thus bumping him up against his MRD.

	c.  Title 10, U.S. Code (USC), section 14111(b-1) states that the name of the officer recommended for promotion by a selection board may be removed from a report of the selection board only by the President.  Section 14111(b-2) provides for promotion below the grade of brigadier general and states that the name of an officer can only be removed by the Secretary of Defense or Deputy Secretary of Defense.  In either case, the current practice of administratively removing names prior to releasing the list because official approval of the board results took an extraordinarily long period of time is unsupportable by law or regulation.  

	d.  This particular board established 90 days as the exclusion window and he would submit that it would be precluded by the doctrine of "Estopel by Publication" from subsequently changing that time period to 120 days.  In his case, his name was not scrubbed prior to the release of the list.  He has been told confidentially that he was not removed because he received a phone call from the MAARNG before the list had been published informing him that he had been selected.  Had he not received this phone call, his name would have been removed prior to release; specifically, according to the Army G-1, his name was not removed until 9 December 2009 allegedly under the direction of the SA under the provisions of Title 10, USC, section 14317 and paragraph 3-18, AR 135-155.

	e.  He does not dispute the inherent authority of the SA to remove his name from a promotion list post-MRD as long as the provisions of the regulation are followed.  In other words, the commander, U.S. Army Human Resources Command (USAHRC), Office of Promotions (Reserve Components (RC)) verifies an officer's ineligibility, explains the ineligibility to the SA, and advises the SA to request that the President approve removal or administrative deletion of his/her name from the promotion board report of the promotion list.  However, there is doubt whether his particular status at the time (Retiree Recall on Active Duty) is addressed by the provision in law.  

	f.  He raises the question "Why would the SA direct his name be removed from the promotion list at that juncture when his office was in possession of a request for redress, dated 29 October 2009, and with three general officer (GO) endorsements, that dealt with this very issue, and the said request had not yet been actioned or adjudicated by his office?  He is not sure that an officer's MRD should exclude his packet from board review.  But if force management or administrative review require a 90-day window exclusion zone, common sense as well as fairness and justice suggest that administrative provisions should be in place to address cases where a Soldier is properly before the board, having cleared the 90 day hurdle, and is competitive for promotion, but through no fault of his, the results are late being approved and released.  Options could include automatic retention beyond MRD; extending beyond MRD pending release of board results, or retiring on schedule and essentially waiving any claim to possible promotion.  

	g.  He has recently learned that his MRD should have been recalculated in light of his Reserve time served between 1980 and 1996.  He submitted documentation to USAHRC-Alexandria on 23 April 2010 and fully understands that they are in the middle of moving to Fort Knox, KY.  An official told him that that he should have been notified a year out from his MRD by the ARNG that he would be separated and further, at the time, all dates including his basic entry date as well as his MRD date should have been checked and corrected if necessary.  This was not done.  He was notified 49 days before separation and requested retention beyond his MRD in anticipation of the board results but he was informed this was not possible and he was ultimately "involuntarily" separated at his MRD.  Several errors were committed as follows:

* He was not notified a year out from MRD that he would be released
* His MRD was computed in error 
* MRD was not checked or re-calculated to reflect Reserve time served
* His name was removed in error from the promotion selection results

3.  The applicant provides the following additional documentary evidence in support of his request:

* A copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 30 June 2009
* A copy of a request to the SA, dated 29 October 2009, for reinstatement in the ARNG
* Copies of three GO letters of endorsement in support of his request for reinstatement
* A copy of a letter, dated 17 March 2010, from the Office of the IG, ARNG
* A copy of the ASA (M&RA) memorandum, dated 30 March 2010
* A self-authored timeline as of 12 May 2010
* Copies of several reassignment, separation, and recall to active duty orders, dated in 2008 and 2009




CONSIDERATION OF EVIDENCE:

1.  The applicant suggested revising certain "policy" aspects of AR 135-155.  The proponent for this regulation is the DCS, G-1; not the Army Board for Correction of Military Records.  Users/individuals are invited to send comments and suggested improvements on a DA Form 2028 (Recommended Changes to Publications and Blank Forms) directly to the DCS, G-1, ATTN: DAPC-MPO-D, 300 Army Pentagon, Washington, DC 20310.  Therefore, the suggested changes to "policy" will not be discussed further in the Record of Proceedings.

2.  Having had prior enlisted service, the applicant's service records show he was born on 23 June 1958 and he was appointed as a second lieutenant in the MAARNG and executed an oath of office on 5 June 1981.  He subsequently completed the Officer Rotary Wing Aviator Course as well as several other military training courses, served in various staff and leadership positions, and attained the rank of major in March 1996.  

3.  On 28 October 1998, he was ordered to active duty in an Active Guard Reserve (AGR) status for a period of 3 years (later extended several times).  He was initially assigned to Headquarters, Department of the Army (HQDA), OIG and later to the National Guard Bureau (NGB) IG.  He was also promoted to lieutenant colonel (LTC) on 10 October 2000.  

4.  On 15 December 2004, 17 November 2005, and 24 October 2006, by letters, USAHRC-STL notified him that he had been considered by the July 2004, July 2005, and July 2006 RCSBs respectively for promotion to COL but he was not selected.  

5.  His records also show he served in Iraq from 3 December 2005 to 31 March 2008 in support of Operation Iraqi Freedom.  He was assigned to HQ, Multi-National Corps-Iraq.

6.  Upon redeployment from Iraq, he was assigned to the Joint Forces Headquarters, MAARNG with duty at the NGB G-5, Arlington VA, and later at the Office of the Deputy Chief of Staff (DCS), Army, G-8.

7.  On 1 June 2009, NGB published Orders 152-1 attaching him to the U.S. Army Transition Center, for transition processing with a reporting date of 29 June 2009 and a separation date of 30 June 2009.

8.  On 1 June 2009, he submitted a voluntary request, through his chain of command, to enter active duty after his transfer to the Retired Reserve under the Retiree Recall Program.  
9.  He was honorably released from active duty on 30 June 2009 to the control of his ARNG unit in accordance with paragraph 2-23 of AR 600-8-24 (Officers Transfers and Discharges) by reason of maximum service or time in grade.  The DD Form 214 he was issued shows he completed 12 years of creditable active service during this period of active duty.

10.  On 30 June 2009, MAARNG published Orders 159-012 honorably releasing him from the ARNG effective 30 June 2009 and transferring him the Retired Reserve in accordance with paragraph 5-3a(3) of National Guard Regulation (NGR) 635-100 (Termination of Appointment and Withdrawal of Federal Recognition).  His NGB Form 22 (Report of Separation and Record of Service) shows he completed 29 years, 2 months, and 19 days of total service for retired pay. 

11.  On 1 July 2009, he was recalled by USAHRC-STL to active duty from the Retired Reserve for a period of 1 year, terminating on 30 June 2010, and he was assigned to Fort Belvoir, VA, with duty at DCS, G-8.

12.  On 6 July 2009, the Deputy Secretary of Defense approved the results of the 2009 RCSB that convened on 11 March 2009 and recessed on 1 April 2009.  The applicant had been selected for promotion to COL by that board.  However, he had already been removed from the Reserve Active Status List (RASL) on 30 June 2009.

13.  On 30 November 2009, the Director of Officer Personnel Management, Major General G.S.F., on behalf of the Commander, USAHRC-STL, submitted an action memorandum through the DCS, G-1, and the ASA (M&RA), to the SA, requesting the SA's approval for the applicant's statutory removal from the RC promotion list as required by Title 10, USC, section 14310(a) and paragraph 3-18 (a-4) of AR 135-155.  In accordance with Title 10, USC, section 14507(a), the applicant had reached his MRD by reason of years of service and he was removed from the RASL on 30 June 2009 and he was placed on the Retired List on 1 July 2009 prior to the approval date of the promotion list.  Therefore, under the provisions of Title 10, USC, section 14317(a), he could not be promoted and "shall be considered as if the officer had not been considered and recommended for promotion."  

14.  On 1 December 2009, subsequent to a legal review by the Office of The Judge Advocate General/Office of the General Counsel (OTJAG/OGC), the DCS, G-1, recommended removal.  This was followed by a similar recommendation by the ASA (M&RA) on 7 December 2009, and a final decision on 9 December 2009 to remove him by the SA.

15.  He submitted the following documents:

	a.  A copy of a memorandum, dated 29 October 2009, through the DCS, G-1; DCS-G-8; and the Army Quadrennial Defense Review (QDR) Office, to the SA, requesting reinstatement to the ARNG.  With this memorandum, he also attached three letters of endorsement, dated 29 October 2009, from the DCS, G-8; Director of the Army's QDR Office; and his Deputy Director, wherein they all fully supported the applicant's reinstatement into the ARNG AGR program and extension of his MRD by 2 years.  The also described him as an outstanding officer who made significant contributions to the Army's QDR Office.  

	b.  A copy of a memorandum, dated 30 March 2010, from the ASA (M&RA) informing him that after a thorough review of his case, he determined that, by law, he did not have the authority to direct his appointment in the ARNG.  He also notified him that the SA had already made a decision regarding his removal from the promotion list and therefore, his mandatory removal date as a LTC remains unchanged.

	c.  A self-authored timeline as of 12 May 2010.

16.  AR 135-155 provides policy for the selection and promotion of commissioned officers of the ARNG and USAR.  Paragraph 3-18 (a) states that if an officer is determined to be ineligible for consideration by reason of being removed from an active status before promotion was finalized, the Commander, USAHRC, Office of Promotions (RC), will verify the officer’s ineligibility, explain the basis for the officer’s ineligibility to the SA, and advise the SA to request that the President approve removal or administrative deletion of the officer’s name from the promotion board report or the promotion list.  A promotion advisory board is not required for a determination that an officer was ineligible for consideration for reasons listed in paragraphs (a) through (g) of this paragraph.  

17.  Title 10, USC, section 14507 (Removal from the Reserve active-status list for years of service:  Reserve LTCs and COLs of the Army, Air Force, and Marine Corps and Reserve commanders and Captains of the Navy) states that a commissioned officer who holds the grade of LTC and who is not on a list of officers recommended for promotion to the next higher grade shall (if not earlier removed from the Reserve active-status list) be removed from that list under section 14514 of this title on the first day of the month after the month in which the officer completes 28 years of commissioned service.

18.  Title 10, USC, section 14308(a) (Promotion List) states when the report of a selection board convened under section 14101(a) or 14502 of this title is approved by the President, the Secretary of the military department concerned shall place the names of all officers selected for promotion within a competitive category on a single list for that competitive category, to be known as a promotion list, in the order of seniority of those officers on the reserve active-status list.   When so approved, such a list shall be treated in the same manner as a promotion list under this chapter and chapter 1403 of this title.

19.  AR 140-10 (Army Reserve - Assignments, Attachments, Details, and Transfers) prescribes policy and procedures for assigning, attaching, removing, and transferring USAR Soldiers.  It also defines Ready Reserve Control Groups and the Selected Reserve, provides detailed procedures for removing Soldiers from an active status, and gives procedures for selective retention of unit Soldiers.  Chapter 7 (Removal from Active Status) provides guidance, with some exceptions, for the removal of commissioned officers for maximum age and/or length of service.  Paragraph 7-2 (Length of service) of this regulation provides, in pertinent part, that 1LTs, CPTs, MAJs, and LTCs will be removed upon completion of 28 years of commissioned service, if under age 25 at initial appointment.  The actual removal date will be within 30 days after the date of completion of the maximum years of service.

20.  NGR 635-100 prescribes policies, criteria, and procedures governing the separation of commissioned officers of the ARNG.  It states that  unless contrary to State law and regulation, the appointment of an ARNG officer should be terminated for certain reasons: Attainment of maximum age, completion of maximum service, or resignation.  It also states that the years of service of Reserve commissioned officers of the Army are the greater of the sum of the officer's years of service as a commissioned officer of any component of the armed forces of the Army or of the Army without specification of component and the years of constructive service accredited to the officer; or the number of years by which the officer's age exceeds 25 years.  Unless contrary to State law and regulations, the appointment of ARNG officers should be terminated for completion of maximum years of service.  Except as otherwise indicated, officers in various grades who are not earlier removed from an active status will be removed from an active status in the ARNG on the date that is 30 days after completion of the total years of service or on the anniversary whichever is later.  For LTC and below, all branches, 28 total years of service. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his name should be added to the 2009 COL promotion list and his MRD should be adjusted by 2 years. 

2.  With respect to his MRD, there is no regulatory or statutory basis for such an adjustment.  He was commissioned on 5 June 1981.  Under the provisions of Title 10, USC, section 14507(a) and NGR 635-100, the maximum length of commissioned service for a LTC is 28 years.  He reached his MRD in June 2009 and he was accordingly removed from the RASL.  LTCs will be removed upon completion of 28 years of commissioned service and the actual removal date will be within 30 days after the date of completion of the maximum years of service.  There is neither an error nor an injustice.  

3.  With respect to his promotion to COL, at the time the promotion board convened on 11 March 2009, he was properly considered.  However, at the time this promotion board was approved on 6 July 2009, he had already reached his MRD by reason of years of service and he was already removed from the RASL, as required by law.  Therefore, by law, he could not be promoted and was considered as if he had not been considered and recommended for promotion.  By law, an officer is not on a promotion list until that list is approved.  Again, there is neither an error nor an injustice.  

4.  The applicant's argument that he was not notified a year out from his MRD by the NGB that he would be removed does not change the fact that by law, he was required to be removed on 30 June 2009.  After all, he was a senior LTC with extensive staff and leadership experience.  He knew or should have known his MRD and should have planned accordingly.  But even if he was notified a year out, it would not have mattered as he would have reached his MRD on 30 June 2009 anyway. 

5.  With respect to issue of miscalculation of his qualifying service for nonregular retirement and thus his MRD, it appears he claims that his ARPC Form 249-E (Chronological Statement of Retirement Points) or NGB Form 23B (ARNG Retirement Point History Statement) is incorrect and does not show all of his qualifying service for non-regular retirement.  He must contact the MAARNG (or the NGB) for correction of his NGB Form 23B and the Commander, USAHRC-STL for correction of his ARPC Form 249-E.  However, unless his contention is that some of his service was not performed in an active status, a recalculation of his service will not move his MRD to a later date.

6.  Notwithstanding the strong endorsements on his behalf and notwithstanding his desire to continue his service, as evidenced by reentering military service under the Retiree Recall, his displeasure or dissatisfaction with the date the Under Secretary of Defense approved the promotion list does not establish error or injustice.  Therefore, there is insufficient evidence to grant him relief.




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 that 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)                                         AR20100014710



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ABCMR Record of Proceedings (cont)                                         AR20100014710



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