IN THE CASE OF:	  

		BOARD DATE:	  9 December 2010

		DOCKET NUMBER:  AR20100019930 


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 retirement orders and consideration for promotion to colonel (COL) by a Special Selection Board (SSB).  

2.  The applicant states:

* The Army compelled him to make a decision between his health and retirement
* The retirement decision forced him off active duty into retirement before being allowed to compete for colonel by the 7 June 2010 board

3.  The applicant states the Army provided him with a Request for Orders (RFO) on 16 November 2009 for a permanent change of station (PCS) by 1 December 2009 while he was under a temporary "3" mental health profile that would not allow him to move until the temporary profile and his mental health treatment expired.  Instead of adjusting his reporting date to comply with medical orders the Army compelled him to accept the RFO or retire.  Had he been allowed to PCS when the profile was complete he would not have retired and he would have been eligible for consideration by the 2010 Colonel's promotion board.

4.  The applicant states in September 2009 the Pentagon's Stress Clinic diagnosed him with a major depressive episode.  On 13 October 2009, his general practitioner placed him under a 90-day temporary "3" profile to deal with mental health issues.  The psychiatrist at the DiLorenzo Army Health Clinic 


confirmed the diagnosis of a major depressive order, and he was prescribed Prozac.  He indicates he briefed his chain of command and provided a hard copy of the profile to the unit's sergeant major.  His profile was reaffirmed by the psychiatrist for 90 days with the potential for a 90-day extension pending treatment.

5.  The applicant states Major General (MG) B-----r met with him on 30 October 2009 to review his file and told him he was providing the applicant with an above-center-of-mass DA Form 67-9 (Officer Evaluation Report (OER)) and assigning him to a vacant Colonel's billet as the Military District of Washington's Public Affairs Officer (PAO).  He would stay in the area and under his current psychiatrist's care.  On 17 November 2009, the Public Affairs branch manager sent him an electronic RFO ordering him to PCS by 1 December 2009 to Fort Riley, KS.  Immediately, he informed the branch manager he was under a non-deployable temporary "3" profile and he could not accept the orders until March/April 2010 at the earliest to complete his mental health treatment.  At that time, the applicant sent the Public Affairs branch manager the profile and he could have easily deleted the RFO.

6.  The applicant also states he met with his psychiatrist on 30 November 2009 and his psychiatrist reiterated that he wanted the applicant under his care and he did not want him to PCS or deploy until his treatment was completed on or about 16 March 2010.  On 10 December 2009, the applicant addressed his temporary "3" profile issue with the Public Affairs branch manager and he explained that his psychiatrist wanted his profile honored and that he was not to PCS or deploy.  The Public Affairs branch manager emailed him that the profile was between the applicant and the doctor and the orders stood.  Additionally, the Public Affairs branch manager stated he would try to extend his reporting date by 30 days without any guarantee.  He also reiterated that the applicant needed to accept the orders or "retire in lieu of PCS."

7.  The applicant states he submitted a "retirement in lieu of PCS" request on 
17 December 2009.  He attached a memorandum of duress to mark his disillusion with the fact the profile was being ignored.  Six days later, MG B-----r personally discussed the retirement request with the applicant and he described in detail his profile and the fact he did not want to retire, he wanted to stay on active duty and complete his treatment, and prepare for any assignment the Army had for him post-retirement.  MG B-----r ignored his request and signed the retirement memorandum in front of him compelling him to be off active duty and retired within 180 days.


8.  The applicant states MG B-----r returned from holiday leave and announced his retirement effective 15 January 2010.  He was replaced by Brigadier General (BG) B---e.  Ten days later, the applicant received his retirement orders for
31 May 2010.  Within 30 days of taking the job, BG B---e addressed the applicant's situation and offered to assist by endorsing a request to revoke his retirement.  On 22 February 2010, the applicant submitted a request to the Army Human Resources Command (AHRC) to reverse his retirement.  The Commander, AHRC, denied BG B---e's request and denied the retirement reversal on 9 April 2010 but he extended the applicant's time on active duty and moved his retirement date to 31 August 2010 to complete treatment.

9.  The applicant states during his out-processing retirement physical, the orthopedic surgeon directed a major reconstruction procedure of his left foot.  His surgery was scheduled for 3 June 2010 and the doctor provided a detailed memorandum outlining the recovery period and requested his out-processing be discontinued until surgery, convalescent leave, and recovery were complete.  His brigade commander endorsed the request on 18 May 2010 to extend the applicant on active duty to complete his surgery and recovery; however, AHRC denied the request on 8 June 2010.  That denial compelled him to honor his retirement effective 31 August 2010.

10.  The applicant further states denying the extension significantly impacted his eligibility to compete for colonel.  The Colonel's board met on 7 June 2010.  As per Army regulation, an officer must have 90 days of active duty after the start of the board.  By denying his extension to recover from surgery, he missed the colonel board eligibility by four duty days.  His file was removed from all board-eligible files and he was not allowed to compete this year.  He points out that since being promoted to major he had only two center-of-mass evaluation reports.  Hence, he was a first-time select for the Senior Service College.  He would have been the only PAO to compete for colonel who is a Senior Service College graduate.  His last OER on active duty (February 2010) is an above-center-of-mass report, prepping him to get selected for colonel on the June 2010 board.

11.  The applicant states he was not allowed to compete despite the facts that:

* An RFO should not have been issued in November 2009 based on his temporary "3" profile
* The Chief of Public Affairs (CPA), BG B---e, requested AHRC reverse his retirement


* His surgeon specifically requested his extension to complete surgery and recovery, which would have allowed him to be eligible for the June 2010 Colonel's board 

12.  The applicant states AHRC had three opportunities to make this "right" for the good of the Soldier and the Army.  The Army had invested significantly in his Industrial College of the Armed Forces (ICAF) education not to mention two master's degrees.  He is currently on transitional leave pending retirement and preparing to undergo physical therapy for his left foot at a Department of Veterans Affairs (DVA) facility as opposed to an Army hospital.  He does not think this is the right way to treat a Soldier after 22 years of service.  

13.  The applicant provides 15 enclosures outlined on a Table of Contents.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned out of the University of Connecticut Reserve Officers' Training Corps program on 22 May 1988.  He was appointed a second lieutenant in the Regular Army on 15 November 1989.  He was promoted to lieutenant colonel on 1 April 2005.  After spending 18 years in the U.S. Army Signal Corps, he completed a functional area transfer to the 46 career field (Public Affairs) on 15 May 2005.

2.  A DA Form 3349 (Physical Profile), dated 13 October 2009, shows the applicant was issued a temporary profile for adjustment disorder with anxiety and depressed mood.  The expiration date was 14 December 2009.   

3.  A health record, dated 23 October 2009, shows the applicant was diagnosed with major depressive disorder recurrent - moderate.  

4.  On 17 November 2009, the applicant was placed on RFO for assignment to Fort Riley with a report date of 1 December 2009.

5.  A DA Form 3349, dated 15 December 2009, shows the applicant was issued a temporary profile for major depressive disorder, single episodic, moderate.  The expiration date was 15 March 2010.  

6.  On 15 December 2009, the applicant submitted a request for voluntary retirement in lieu of PCS with an effective date of 31 May 2010.  


7.  On 18 December 2009, the applicant submitted a request to withdraw his voluntary request for retirement and requested that he be allowed to continue to serve in his current capacity until his treatment was complete on or about
15 March 2010.  He indicated he did not want to retire and that he was compelled to put forth a request for retirement in lieu of accepting PCS orders to Fort Riley.

8.  On 30 December 2009, the applicant's psychiatrist recommended that his RFO be rescinded until the expiration of his temporary profile on 15 March 2010.

9.  On 21 January 2010, the applicant's request for voluntary retirement was approved.

10.  On 1 March 2010, the applicant submitted a request to withdraw his approved retirement.  On 17 March 2010, his request was disapproved.

11.  On 23 March 2010, the applicant submitted a request for an exception to policy to revoke his approved retirement in lieu of PCS in order to allow him to continue to serve in his current capacity until treatment was complete.  His letter states, in pertinent part, "I accept responsibility for not discussing my medical issues with my branch manager sooner, which if I had, could have prevented some of the confusion.  However, due to the stigma attached to depression, medication, etc., I was hesitant as to the response I would receive.  Due to some of the issues mentioned above, I believed there was no other choice but to submit a retirement in lieu of PCS to continue my mental health treatment."  BG B---e recommended approval of the applicant's request for withdrawal of his previously approved retirement request.

12.  On 9 April 2010, the applicant's retirement date was extended to 31 August 2010.

13.  On 5 May 2010, the applicant requested his retirement date be changed to 31 August 2011 due to medical reasons.  

14.  On 8 June 2010, the Commanding General, AHRC, denied the applicant's request for a date change to his approved retirement in lieu of PCS.   

15.  The applicant retired in the rank of lieutenant colonel on 31 August 2010.  He had completed 22 years, 11 months, and 27 days of creditable service.


16.  In support of his claim, the applicant provides:

* an OER covering the period 16 March 2005 through 15 March 2006 which shows he was rated above-center-of- mass by his senior rater
* a recommendation for promotion, dated 1 December 2009
* an OER covering the period 16 March 2006 to 26 July 2007 which shows he was rated center-of-mass by his senior rater
* a DA Form 1059 (Service School Academic Evaluation Report)
* an OER covering the period 24 July 2008 through 9 March 2009 which shows he was rated above-center-of-mass by his senior rater
* a favorable consideration for selection for colonel from the Commandant of the ICAF at National Defense University
* an OER covering the period 10 March 2009 through 26 February 2010 which shows he was rated above-center-of-mass by his senior rater   

17.  The applicant also provided eight OERs covering the following periods:  
1 October 1998 through 31 December 1998; 15 August 2000 through 
14 February 2001; 15 February 2001 through 15 August 2001; 16 August 2001 through 31 May 2002; 1 June 2002 through 31 October 2002; 1 November 2002 through 31 October 2003; 1 November 2003 through 31 October 2004; and 
1 November 2004 through 15 March 2005 which all show he was rated above-center-of-mass by his senior raters.

18.  In the processing of this case, on 23 September 2010, an advisory opinion was obtained from the Chief, Officer Retirement and Separations Branch, AHRC:

	a.  Paragraph 2a states the applicant was placed on RFO on 17 November 2009 for assignment to Fort Riley [with a report date of 1 December 2009].  He submitted his retirement request on 17 December 2009.  His request was approved on 21 January 2010.  

	b.  Paragraph 2b states on 1 March 2010, he submitted a request to withdraw his approved retirement.  On 17 March 2010, his request for withdrawal was disapproved.

	c.  Paragraph 2c states on 23 March 2010, the applicant submitted a request for an exception to policy to rescind his approved retirement in lieu of PCS based on a temporary profile.  On 12 March 2010, the applicant was seen by his physicians and an additional 90 days was added to the original profile, dated
30 December 2009.  The applicant never provided copies of his medical profiles in previous applications submitted to AHRC.  The applicant stated in his request 


for exception to policy "I accept responsibility for not discussing my medical issues with my branch manager sooner, which if I had, could have prevented some of the confusion."  His request for exception to policy to rescind his approved retirement was disapproved.  On 9 April 2010, AHRC approved a
90-day extension to cover the timeframe of the applicant's profile.  This changed the applicant's retirement date from 31 May 2010 to 31 August 2010.

	d.  Paragraph 2d states on 25 May 2010, AHRC received a fourth request from the applicant for a date change to his approved retirement in lieu of PCS.  This request was denied by AHRC on 8 June 2010.

	e.  Paragraph 2e states on 20 July 2010, after a thorough review of the applicant's medical records, profile, and discussion with all his medical providers, the Office of the Surgeon General (OTSG) rendered a decision that there were no limitations to the officer continuing service.  On 21 July 2010, the AHRC Retirements Branch notified the applicant of the decision to approve the request for withdrawal.  Furthermore, he was advised that due to previous requests being answered and closed he would need to submit a new application for withdrawal.  That same day, the applicant responded that unless he was to be seen by an SSB for O-6, that he would continue with out-processing and retire effective
31 August 2010.  According to the legal opinion from the Office of the Judge Advocate General to Headquarters, Department of the Army, G-1, the applicant was not eligible for an SSB.  

	f.  Paragraph 3a states the applicant contends he was compelled to make a decision between his health and retirement and that the forced retirement rendered him ineligible to compete in the June 2010 Colonel's board.  However, until his third submission to AHRC, the applicant had not provided any documentation to AHRC informing the command of his medical condition.  Therefore, AHRC acted in accordance with regulatory guidelines.  When AHRC was made aware of the applicant's medical situation, the command acted in good-faith and in the best interest of the applicant and granted an extension.

	g.  Paragraph 3b states the applicant claims had AHRC adjusted his PCS date until after the profile and he had been allowed to PCS, he would have been eligible to compete for Colonel.  AHRC responded that per Army Regulation
600-8-24 (Officer Transfer and Discharges), paragraph 6-17(f), it is very clear as to the requirements of a retirement in lieu of PCS in that "once a retirement is approved, the appropriate career management division will revoke the PCS orders and notify the officer.  The retirement will not be withdrawn nor will the effective date of the retirement be extended."  Officers who have an approved 


retirement date 90 days from the board convening are not eligible to be seen by the board.  The responsibility and issues related to an officer being competitive for a promotion board lies with the officer when he/she is making career decisions.  All the applicant's requests to AHRC were clearly and solely based on medical issues.  At no time did any of his requests address issues of promotion board eligibility.  Decisions pertaining to the applicant's request were based on regulatory requirements as stated in Army Regulation 600-8-24.

	h.  Paragraph 4a states the applicant contends the RFO should not have been issued.  AHRC stated the RFO was issued because the applicant did not provide a copy of his profile to his assignment officer until after the RFO was issued.  Therefore, the branch/division was unaware of the applicant's status.

	i.  Paragraph 4b states the applicant contends the Chief of Public Affairs recommended approval of his request for retirement reversal.  AHRC stated that an officer's chain of command recommends approval or disapproval of the request.  The approval authority is the Commander, HRC-Alexandria.  The applicant's request was appropriately reviewed and disapproved.

	j.  Paragraph 4c states the applicant contends his medical provider requested his extension to complete surgery/recovery which would have made him eligible for the June 2010 Colonel's board.  AHRC stated that the applicant submitted a request for a date change due to an elective surgery.  An officer's physicians can make a recommendation; however, the approval authority is the Commander, AHRC.  On 8 June 2010, the appropriate authority disapproved the applicant's request for a date change. 

	k.  Paragraph 5a states once the applicant had exhausted all avenues related to his medical profile, only then did he raise the issue of the June 2010 Colonel's board.  Furthermore, he only addressed his concerns through emails and consistently jumped the chain of command conveying different messages to different personnel at various levels, to include the Vice Chief of Staff of the Army (VCSA).  The AHRC leadership worked with the officer, his chain of command, and various agencies to ensure the officer was given all proper considerations.

	l.  Paragraph 5b states on 20 July 2010, after a thorough review of the applicant's medical records, profile, and discussion with all his medical providers, OTSG rendered a decision that there were no limitations to the officer continuing service.  In conjunction with this finding, the Commander, AHRC, conveyed his intent to approve the applicant's withdrawal.  The applicant was informed of the decision and he was further informed that once the withdrawal action was completed, he would be placed on assignment and further deployed.

	m.  Paragraph 5c states on 21 July 2010, the AHRC Retirements Branch notified the applicant of the decision to approve the request for withdrawal.  He was also advised that due to previous requests being answered and closed he would need to submit a new application for withdrawal.  That same day, the applicant responded that unless he was to be seen by an SSB for Colonel he would continue with out-processing and retire effective 31 August 2010.  According to the legal opinion from the Office of the Judge Advocate General, Headquarters, Department of the Army G-1, the applicant was not eligible for an SSB.

	n.  Paragraph 6a states AHRC has worked diligently with the applicant over the past year while processing his multiple requests with proper due diligence.  As stated previously, all of his requests have been based on medical conditions.  AHRC has gone above and beyond to do what was best and right for the applicant and the Army.  However, it has become apparent the applicant's ultimate goal and major motivation through these requests was to have his retirement reversed in order to be seen by the June 2010 Colonel's board instead of taking care of his medical needs.

	o.  In paragraph 6b, the advisory opinion recommended, based on regulatory and legal guidance, documents provided, information provided above, and ultimately the applicant's own decision to retire, the applicant's approved retirement in lieu of PCS stand and not be revoked.  As a retiree, the applicant can continue to be treated for all medical needs.  Therefore, a revocation of his retirement is not justified nor warranted. 

19.  The advisory opinion was furnished to the applicant to allow him the opportunity to submit comments or a rebuttal.  On 1 November 2010, the applicant responded with a lengthy rebuttal and numerous attachments outlined in the Table of Contents.  He stated it is his firm belief that MG B-----r acted irresponsibly and inappropriately toward him during his tenure as the Army's CPA.  He goes on to reiterate his previous contentions provided with his application.

20.  The applicant provided a memorandum, dated 20 October 2010, from the Principal Deputy CPA.  She attests the applicant was moved from a joint staff 
O-6 billet to a non-TDA [table of distribution and allowances] position in the Office of the CPA (OCPA).  This reshaping of OCPA without TDA authorizations generated confusion in workload distribution and authorities.  She was disappointed, in some cases, to see solid officers negatively affected.  It is her opinion that the CPA's drive to revamp OCPA superseded any consideration of the impact his assignment decision had on the development of the officers affected, particularly the applicant.  
21.  The applicant provided a memorandum, dated 29 October 2010, from a former OCPA sergeant major.  He attests when the applicant was first diagnosed and received a temporary profile for depression the applicant provided him his profile paperwork and asked him for discretion.  He honored the applicant's privacy until the OCPA Chief of Staff asked him for a list of OCPA profiles because the 2009 fall Army Physical Fitness Test was forthcoming in October 2009.  At that time, the applicant not only agreed to inform the Chief of Staff but also indicated he had kept his supervisory chain of command informed already.  To his knowledge, not only did the applicant's immediate supervisory chain of command know about his profile and the nature of said profile but MG B-----r's Chief of Staff, executive officer, and the officer assignments officer in charge were aware of the profile in October 2009 prior to any RFO being issued.  It is his opinion that premature options were presented to the applicant, the applicant's situation became overshadowed by a presumed need to accommodate a Division Commander's desire over the welfare of a Soldier, and this incident derailed the applicant's career and put him in a very difficult circumstance that could have been avoided.

22.  The applicant also provided a memorandum, dated 17 May 2010, from the Commandant, ICAF.  He attests he was extremely impressed with the applicant as a leader and student, his efforts in the classroom were superior, he was the ICAF Student of the Year, and his thesis paper on Strategic Communications won the Under Secretary of Defense Writing award.  The applicant clearly understands strategic communications and the critical impact strategic communications will have in our future military missions.  He states "Select him immediately for Colonel.  He is a committed officer and the right kind of leader for our country."

23.  The applicant states AHRC has a much different assessment of him than his chain of command.  AHRC believes he was an officer who tried to "game the system," who did not want to deploy and used every means possible to get out of a PCS.  Nothing could be farther from the truth.  It is his impression that his chain of command's input and their significant effort to reverse his retirement would have considerable influence on the ABCMR.  AHRC personnel involved in his case don't know him personally and outside of the microfiche view of his file have little knowledge of his professionalism.  His file communicates to anyone reviewing it that he is a dedicated and competent officer.  Not only is his file strong enough for him to be a first-time select for the Senior Service College, the efficiency reports and letters on his behalf depict a motivated officer and leader, whom the Army needs to groom for greater responsibility.  


24.  The applicant points out BG B---e requested his retirement be reversed.  Directly after MG B-----r retired BG B---e endorsed his retirement reversal request.  A senior civilian at OCPA penned a memorandum indicating the command climate during MG B-----r's tenure was detrimental to the careers for many PAOs.  His final evaluation, in spite of his pending retirement, was an above-center-of-mass.  The OCPA sergeant major indicated that personnel involved in sending him an RFO were not completely forthcoming in regard to when they knew he was non-deployable due to his health and he acknowledged that OCPA routinely struggled with keeping medical profiles up-to-date.  The Commandant of the ICAF went so far as to write a letter.  Those personnel he has worked for and knew him better than anyone on the AHRC staff wanted him to continue serving and get promoted.  They felt he would be a significant contributor to the career field and Army.

25.  The applicant disagreed with the advisory opinion and provided a point-by-point rebuttal to each paragraph/part of the advisory opinion.  In summary, he states:

	a.  Paragraph 2a - AHRC's rebuttal letter does not fully disclose the situation surrounding the RFO.  AHRC does not mention these orders had a reporting date of 1 December 2009 and were PCS orders.  His entire chain of command had knowledge of his profile prior to issuing the RFO.  AHRC never checked his profile forms.  After his RFO was revoked and retirement approved, MG B-----r and AHRC chose not to fill the position at 1st Infantry Division.  His retirement memorandum was submitted on 17 December 2009 not in 2010 and with that memorandum was a personal memorandum of duress.  AHRC does not mention the memorandum of duress

	b.  Paragraph 2b - Two days before his final out-processing he was offered withdrawal of his approved retirement.  AHRC could have honored the local commander's request in March 2010 to reverse his retirement under the same Army Regulation guidelines referenced in the paragraph.  If AHRC had used this regulation to support his retirement reversal in March 2010, he would have had his retirement reversed, completed his medical treatment less than one month later and been available for any and all assignments.  He would still be serving the Army in any capacity that the Army had requested of him and been boarded for promotion due course.  Instead, AHRC used the regulation to compel him, a low density specialty officer whom the Army had invested in significantly, into retirement.

	c.  Paragraph 2c - AHRC's comments are absolutely inaccurate.  He did not ask to have his approved retirement rescinded; he requested a change in retirement date to accommodate his recovery.  Since AHRC did not include the email recommending disapproval of his request in their correspondence, he sincerely doubts its existence.  His original profile for depression was generated in October 2009.  His branch manager has had copies of all his profiles since the day he contacted the applicant about his pending RFO.  He believes he exercised due diligence in regard to his profile.  Orders were never issued to him, only an electronic RFO.  His retirement rescind request was endorsed by BG B and AHRC chose to ignore the local commander's rescind request and extend him instead.

	d.  Paragraph 2d - This paragraph is inaccurate.  It was his third request for a date change to his approved retirement, not fourth.  It was not simply "elective foot surgery" as stated in the advisory opinion but a significant surgery in the course of his recovery.  AHRC disapproved his extension after his surgery while he was on convalescent leave.  He ended up retiring from the Army in a walking boot without any physical therapy scheduled in the Army medical system.

	e.  Paragraph 2e - AHRC had never informed him that they were considering retirement withdrawal.  AHRC did not:

		(1)  consider his final out date;

		(2)  recognize he had a new temporary "3" profile for his left foot surgery and he was still in a cast;

		(3)  recognize his doctor asked for 9-12 months of recovery time post-surgery;

		(4)  discuss the fact that AHRC had removed his file from O-6 consideration or how he was to be boarded now that he was having his retirement reversed; or

		(5)  discuss any new assignments with the Army's CPA.

	f.  Paragraph 3a - This is simply inaccurate.  His entire chain of command and AHRC's representative were well-informed of his profile well before issuing his RFO.

	g.  Paragraph 3b - Despite the regulation cited, AHRC did in fact extend him on active duty past his original retirement date and he was offered withdrawal of his retirement 72 hours from his final outprocessing in July 2010.  His approved retirement date was only on record because:

		(1)  AHRC compelled him to retire in lieu of PCS and if they had honored his profile he would have continued his career and in doing so been eligible for the 2010 Colonel's board;

		(2)  when AHRC offered to revoke his retirement, they refused to address his board eligibility; and

		(3)  After reporting back to OCPA, BG B---e indicated he had a call to
MG B-r-e to discuss how this reversal would affect his assignments and the June 2010 Colonel's board.  The results of this board were not released until the last week of October 2010, plenty of time to have his file considered.

	h.  Paragraph 4a - This is not accurate.  Everyone who should have been aware of his profile was aware.  He did take it upon himself to provide his profile to his chain of command and he verbally informed his branch manager before the manager sent the electronic RFO.  The RFO orders were never issued.  AHRC had 31 days to review his file including profile and recognize that something was amiss when an RFO is issued to PCS a Soldier in 8 days over a major federal holiday.  Additionally, it would have become obvious there was no PAO position open where his RFO was sending him.  In those 31 days, this RFO could have been deleted and there would have been no cause for him to request retirement.

	i.  Paragraph 4b - BG B---e endorsed his request to rescind his retirement because he was aware of MG B-----r's command climate and that MG B-----r had rushed sending him an RFO as he was en route to retiring.  He points out that although all officers are not necessarily afforded the opportunity to meet with the Commander, AHRC, he had been offered by AHRC to in fact request a meeting with MG B-r-e under the open door policy.  The AHRC's executive officer sent him an email on 10 June 2010 scheduling an appointment with MG B-r-e for
15 June 2010.  On 15 June 2010, approximately 3 hours before his appointment, his appointment was cancelled and he was told since he was not in MG B-r-e's command, MG B-r-e had no obligation to see him under the open door policy.  In July 2010, the Commander, AHRC ignored Army Regulation 600-8-24 and offered to reverse his retirement.  He did this because AHRC, not the CPA, wanted to replace an O-5 in the XVIII Corps PAO shop.  This retirement reversal was only provided because AHRC was crunched to find an O-5 for this position.

	j.  Paragraph 4c - The surgery was not elective as per the surgeon's memorandum.  Again, AHRC made an assumption that he was trying to game the system by having elective surgery.  Instead, he was trying to get healthy before retirement.  Finally, the Army has plenty of latitude in regard to extending retirement dates to ensure the Soldier can recover on active duty.  AHRC disapproved this extension because he would have remained on active duty past 31 August 2010 and his file would have become eligible for consideration on the June 2010 Colonel's board.  AHRC's decision rushed him out of the Army in a walking boot without affording him the opportunity to recover or seek physical therapy.

	k.  Paragraph 5a - His goal was to get healthy.  He provided his profile in plenty of time to his chain of command and he informed his assignments officer prior to him electronically sending him an RFO.  All of his correspondence for all events was sent through his chain of command.  The day his retirement memorandum was signed, MG B-----r knew he was under mental health care.  After speaking with his assignments officer and exhausting his attempts within AHRC and MG B-----r, he visited the AHRC Inspector General (IG).  The AHRC IG completed a formal inquiry and called him to tell him the right thing for his assignments officer to do was in fact to delete the RFO.  It was within AHRC's discretion to delete the RFO but nothing in any regulation compelled deletion.  He requested the AHRC IG inquiry results, which was denied.  Finally, he never skipped the chain of command to contact the VCSA.  Instead, he took the time to consult a mentor, a retired general, who in turn discussed his situation with senior Army leaders.  His only direct correspondence to the VCSA was a letter after his final out-processing thanking him for his interest and offering him his support should he need to convene a working group in regard to troops with mental health issues.  He takes great umbrage at the wording in this paragraph that he was unprofessional enough to jump the chain of command.

	l.  Paragraph 5b - He was never informed that AHRC was consulting OTSG and that consideration for reversing his retirement was on-going.  He accepted the retirement withdrawal and was very clear in phone conversations that he was interested in how his file would be boarded.  AHRC had more than five weeks to give him an answer about being boarded or an SSB while he was on leave.  AHRC refused to provide any answers until this advisory opinion.  AHRC's discussion with him PCSing indicated to him that AHRC was still not considering the fact he was immobile due to surgery on his left foot.  There is no question that AHRC was aware he was recovering because they had previously denied an extension for his foot surgery recovery.  Again, he would have gladly moved but was under a profile for his leg so he couldn't go for sometime.  AHRC did not give 


him any exact dates for reporting so he couldn't even work out the timeline with his doctor within the parameters of his profile.  AHRC doesn't assign PAOs, the CPA does.  After reporting back to his unit, he was told by his rater he was going to be the Media Relations Division Personnel Team Chief in the Pentagon.  At that time, his rater discussed with him that BG B---e was considering sending him on temporary duty to Fort Hood, TX to work the media operations surrounding the Major H---- trial if his retirement was reversed.  Again, the CPA assigns PAOs and if AHRC had taken the time to keep the OCPA chain of command up-to-date, there would have been little confusion.  No one from AHRC did that - they called or emailed him and he had to inform his chain of command.  Obviously, a lieutenant colonel telling his seniors that AHRC had a different plan for him didn't go over particularly well.

	m.  Paragraph 5c - The first two sentences of this paragraph are accurate.  He simply wanted to know if or how he was to be boarded and he expected an answer prior to his official retirement from active duty on 31 August 2010.  This advisory opinion is the first time he was aware that a legal opinion about him going before an SSB was being researched in his case.  Frankly, he gave this decision due diligence in regard to honoring the age-old adage that "the person looking at you in the mirror is most responsible for your career."  Again, he had no idea until now that AHRC was garnering a legal opinion on getting him an SSB.  Instead, he was a passed over lieutenant colonel, in a cast/walking boot making a career decision and all AHRC had to do was give him the information he needed to make a rational decision for his future.  AHRC ignored his request and then hoped they would never hear from him again after his final out on
23 July 2010.

	n.  Paragraph 6a - AHRC has not been diligent in the past year with regard to his file.  Instead AHRC did:

		(1)  ignore a mental health profile and tell him it was between him and his doctor;

		(2)  compel him to make a decision between "retire in lieu of PCS" or take a non-existent position;

		(3)  ignore the CPA's request to withdraw retirement and offer what AHRC deemed was appropriate - an extension only;

		(4)  make decisions in a timeframe that only caused more confusion;



		(5)  create an unfavorable impression of him by reaching out to
COL C------ after he requested an extension to recover from foot surgery and telling him he should change his mind because he was trying to game the system by having surgery; and

		(6)  use Army regulations when it suited AHRC's desires/requirements only, not in accordance with CPA's guidance, not in accordance with his command's needs and never were his needs considered.

Lastly, AHRC did two things throughout this ordeal that are indicative of the unprofessionalism and disorder that, unfortunately, have marked his thought on this command.  He believes personnel in AHRC blatantly attempted to disparage his service.  A very senior GS-15 in a position senior to his assignments officer took it upon himself to inform personnel outside of the Army about his mental health profile and the fact he was prescribed Prozac.  He believes AHRC was very sloppy in regard to his privacy in general.

	o.  Paragraph 6b - He completely non-concurs with this recommendation.  Again, it is his assertion that AHRC used the regulation to ensure he was not allowed to complete treatment for any of his medical issues and certainly not be seen by the promotion board.  Additionally, his privacy was violated by AHRC.  Ultimately, it was not his decision to retire.  Instead, he signed out on leave.  He was on leave for five weeks while he patiently waited and continued to discuss his situation with his chain of command.  AHRC chose not to answer any of his queries in regard to having missed the board or how he would be boarded in the future.  The American Red Cross has afforded him an opportunity to continue seeing his surgeon on an out-patient basis and not the Army.  Moreover, any follow-up treatment will compel him into the DVA system and away from his surgeon.  It is his assertion that poor judgment on the part of AHRC officials compelled him to make decisions that impacted continuance of his career and took away any opportunity to be boarded for promotion.  He should have not been compelled to make a decision to PCS or retire.  Since his recovery is almost complete, he requests the ABCMR consider his request to compete before an SSB and provide an opportunity to get promoted and continue serving for the good of the Army; particularly since the Army chose to heavily invest in his education.  His career was well on track until he was placed under a mental health profile.  From that point forward, MG B-----r and AHRC worked diligently to ensure he could not continue his career unless he ignored his health issues.  Fortunately for him, MG B-----r retired and his new chain of command has been super supportive in helping him get his career back.


26.  Army Regulation 600-8-24, paragraph 6-17 (Rules for processing retirement in lieu of permanent change of station) states, in pertinent part, an officer may request retirement in lieu of PCS when he or she has at least 19 years, 6 months Active Federal Service and a firm PCS alert is received.  The retirement request must be submitted within 30 calendar days of the alert.  The retirement will not be withdrawn nor will the effective date of the retirement be extended.

27.  Army Regulation 600-8-29 (Officer Promotions), paragraph 1-10e (Promotion eligibility) states, in pertinent part, officers whose established separation or retirement date falls within 90 days after the date on which the board is convened are not eligible for consideration by a promotion selection board.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the Army compelled him to make a decision between his health and retirement.  However, evidence of record shows after he was placed on RFO for assignment to Fort Riley, he submitted a voluntary request for retirement in lieu of PCS with an effective date of 31 May 2010.  This request was approved.  The AHRC advisory opinion states the applicant's approved retirement date was extended to 31 August 2010 to ensure he was given proper medical care when AHRC was made aware of his medical situation. 

2.  The applicant contends his forced retirement rendered him ineligible to compete in the June 2010 Colonel's board.  However, his request was voluntary.  In addition, the governing regulation states officers whose established retirement date falls within 90 days after the date on which the board is convened are not eligible for consideration by a promotion selection board. 

3.  The applicant's remaining contentions and detailed rebuttal to the advisory opinion were carefully considered.  The documentation provided by the applicant was also noted.  However, since the governing regulation states a retirement will not be withdrawn, there is an insufficient basis for granting the applicant's requests that his retirement orders be revoked and that he be considered for promotion to colonel by an SSB.  In addition, the Board finds no error or injustice in the AHRC decision to deny him promotion consideration by an SSB.  

4.  In view of the foregoing, there is no basis for granting the applicant's requested 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)                                         AR20100019930



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ABCMR Record of Proceedings (cont)                                         AR20100019930



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