IN THE CASE OF:	

		BOARD DATE:	9 August 2011

		DOCKET NUMBER:  AR20100022274 


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:

	a.  His original mandatory removal date (MRD) of 30 June 2010 be extended to 30 June 2012.

	b.  He should not have to go before another Department of the Army promotion board for at least 2 years in order for the South Carolina Army National Guard (SCARNG) to have time to find a colonel position for him;

	c.  He remained eligible for colonel during that 2-year period based on his selection by the Special Selection Board (SSB).

	d.  His previous MRD extension to 30 August 2014 be adjusted to 30 August 2016.

	e.  Appearance before the Army Board for Correction of Military Records (ABCMR) so he may answer or clarify any questions the Board may have.

2.  The applicant states:

	a.  He was denied the opportunity to compete for promotion to colonel because his name was erroneously omitted from the 2009 Colonel Reserve Component (RC) Army Promotion List (APL) Department of the Army (DA) Selection Board.

	b.  His records were considered by an SSB that convened on 18 March 2010. The SSB results were published on 19 July 2010, and he was selected.  Pending the results of the SSB his MRD was extended to 30 August 2014.

3.  The applicant provides:

* a self-authored timeline through 15 August 2010
* several email notes concerning not being considered by the promotion board
* his memorandum requesting an SSB, dated 1 September 2009
* a memorandum from The Adjutant General, SCARNG supporting his SSB request, dated 8 September 2009
* a memorandum from the U.S. Army Human Resources Command (USAHRC), St. Louis, subject:  Promotion Consideration, announcing his recommendation for promotion, dated 19 July 2010
* a memorandum from USAHRC, St. Louis, subject:  Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty, dated 19 July 2010
* email notes concerning colonel promotion options
* a memorandum from the State of South Carolina Military Department, Office of The Adjutant General, subject:  Request for Extension, dated 
14 September 2009
* a memorandum from the State of South Carolina Military Department, Office of the Adjutant General, subject:  Request for Extension of MRD for Federal Technician, dated 14 September 2009
* email notes concerning extension of MRD
* a memorandum from the National Guard Bureau (NGB), subject:  Retention Beyond MRD - LTC A., E., dated 27 January 2010
* his memorandum, subject:  Request for SSB, dated 24 April 2008
* a memorandum from the State of South Carolina Military Department, Office of the Adjutant General, subject:  Request for SSB for LTC E. A.
* email notes concerning the Colonel APL DA Mandatory Selection Board

CONSIDERATION OF EVIDENCE:

1.  The applicant is a lieutenant colonel in the SCARNG.  He was commissioned as a second lieutenant on 25 June 1982.

2.  Due to an administrative error his records were not reviewed by the 2009 Colonel RC APL Selection Board that convened in March 2009.  His records were subsequently considered by an SSB that convened on 18 March 2010.  The 

results of that board were released on 19 July 2010 and he was selected for promotion to colonel.

3.  Pending results of the SSB, approval was obtained for him to be retained beyond his MRD until 30 August 2014.  The 27 January 2010 NGB Memorandum approving this retention states, in effect, that as he is employed as a military technician with the SCARNG, this retention allows him to be eligible for an immediate annuity under the Federal Employee Retiree System (FERS) based on his minimum retirement age.  The memorandum further states "once he is serving in the retention period beyond his MRD he will no longer be eligible for consideration for promotion, nor will he be available for mobilization unless it is in the M-day position that he currently holds."

4.  A memorandum from USAHRC, St. Louis, subject:  Promotion Consideration, dated 19 July 2010, notified him he was recommended for promotion by the SSB.

5.  The applicant was considered and selected for promotion to colonel by the Colonel RC APL Selection Board that convened on 19 October 2010.

6.  In the processing of this case an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB.  The advisory official stated:

	a.  The applicant's promotion packet did not go before the 2009 DA Mandatory Board due to an administrative error.  He requested his records go before an SSB and as a result, he was selected for promotion.  As the applicant had initiated a request for an SSB he should not have been allowed to request extension of his MRD.  As the MRD extension was approved on 27 January 2010, which is prior to the 19 July 2010 SSB results, the SSB should have been rescinded.  (Per NGB memorandum, 27 January 2010, when he began to serve in the retention period beyond his MRD of 30 June 2010 he was no longer eligible for consideration for promotion).

	b.  The applicant has several scenarios to consider.  He could request his MRD be adjusted back to 30 June 2010.  This would allow for his selection by the SSB to automatically extend his MRD by 2 years.  He could request an extension of his MRD to 30 August 2016.  If the State supports the request it would be forwarded to NGB for approval.

	c.  Concerning his promotion to colonel, the command recommended the applicant's promotion based on the policy governing DA Selected Mobilized Officers.  The applicant would have been promoted while on his Title 10 tour.  His MRD was extended to 2014 but not his Title 10 tour.

	d.  The applicant must decide if he wants to submit a request to delay, decline the promotion, or transfer to the Individual Ready Reserve (IRR) in order to accept the promotion.  The SCARNG sent a memorandum to the applicant dated 10 October 2010, explaining the available options.

	e.  The advisory official recommends disapproval of the applicant's request. 

6.  On 4 April 2011, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. On 8 April 2011, the applicant provided a rebuttal stating:

	a.  He had no way of knowing when the SSB results would be published and he needed to request extension of his MRD because membership in the SCARNG is required in order for him to retain his military technician civilian position.

	b.  He was not informed that when the SSB results were announced his MRD would be automatically extended.

	c.  He could have been promoted to colonel while mobilized had his MRD been automatically extended 2 years.

7.  Title 10, U.S. Code, section 14502(e)(2) states an officer who is promoted to the next higher grade as the result of the recommendation of an SSB convened under this section shall, upon such promotion, have the same date of rank, the same effective date for the pay and allowances of that grade, and the same position on the reserve active-status list as the officer would have had if the officer had been recommended for promotion to that grade by the selection board which should have considered, or which did consider, the officer.

8.  National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions) provides for Federal recognition of commissioned officers.  Chapter 8 covers promotion of commissioned officers other than general officers.  Paragraph 8-6c states promotion will be accomplished only when the officer is assigned to an appropriate Modified Table of Organization and Equipment or Table of Distribution and Allowances vacancy in the higher grade.  The officer must remain in the same vacancy in which he or she has been recommended for promotion until Federal recognition orders are published.

9.  Title 10, U.S. Code, section 14507 states:

	a.  Lieutenant Colonels and Commanders.  Unless continued on the reserve active-status list under section 14701 or 14702 of this title or retained as provided 
in section 12646 or 12686 of this title, each reserve officer of the Army, Navy, Air Force, or Marine Corps who holds the grade of lieutenant colonel or commander 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.

	b.  Colonels and Navy Captains.  Unless continued on the reserve active status list under section 14701 or 14702 of this title or retained as provided in section 12646 or 12686 of this title, each reserve officer of the Army, Air Force, or Marine Corps who holds the grade of colonel, and each reserve officer of the Navy who holds the grade of captain, 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 30 years of commissioned service.  This subsection does not apply to the adjutant general or assistant adjutants general of a State. 

10.  Title 10, U.S. Code, section 14702(2) states that, notwithstanding the provisions of section 14507, the Secretary of the military department concerned may, with the office's consent, retain on the reserve active status list an office in the grade of major, lieutenant colonel, colonel, or brigadier general who is a reserve office of the Army or Air Force who, as a condition of continued employment as a National Guard or Reserve technician is required by the Secretary concerned to maintain membership in a Selected Reserve unit.  

11.  National Guard Regulation 635-100, paragraph 6(h) allows for an extension of an officer on the reserve active status list when, as a condition of continued employment as a National Guard technician, the officer must maintain membership in a Selected Reserve unit.  The regulation allows for an extension so that the officer can achieve the age and service requirements (age 55/20 years creditable service) for a civil service annuity.

12.  NGB memorandum, subject:  MRD of ARNG Lieutenant Colonels and Colonels (ARNG-HRH Policy Memorandum #10-056), dated 22 December 2010, clarifies when an ARNG officer's MRD for years of commissioned service changes from 28 to 30 years.  This memorandum states that an officer's MRD changes as soon as that officer is placed on a list of officers recommended for promotion.  

13.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers), paragraph 3-22c states if the report of an SSB, approved by the President, recommends for promotion to the next higher grade an officer not currently eligible for promotion, or a former officer whose name was referred to it, the Secretary of the Army may act through the Army Board for Correction of Military Records to correct the military record of the officer or former officer to correct an error or injustice resulting from not being selected by the board which should have considered, or which id consider, the officer.

14.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

 DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was denied the opportunity to compete for promotion to colonel because his name was erroneously omitted from the 2009 Colonel RC APL DA Selection Board.  He requests his MRD be adjusted to       30 June 2012; he not go before another DA promotion board for 2 years in order for the SCARNG to have time to find a colonel position for him; and his previously-approved MRD extension to 30 August 2014 be adjusted to 30 August 2016.

2.  With respect to his MRD, as he was selected by an SSB for promotion to colonel his MRD should be 30 June 2012.  This allows him to serve for 30 years. Title 10 U.S. Code section 14507(b) requires removal from the reserve active status list at completion of 30 years unless he is on the list for promotion to the next higher grade.

3.  An email note included in the NGB advisory opinion shows although there was no colonel vacancy available on 29 September 2009, they recommended his promotion while he was serving on a Title 10 tour.  Due to the SSB action he was allowed to extend his MRD but not to extend the Title 10 tour.  He missed an opportunity to be promoted to colonel.

4.  Notwithstanding the advisory recommendation, there is no evidence that the applicant was at fault when his records were not seen by the regular promotion board.  As such, he should not be further disadvantaged.  Although he was selected for promotion by the SSB, he may have missed out on a promotion opportunity due to the delay.  
5.  Therefore, in view of the above, and as matter of equity, the applicant's records should be corrected to show his MRD as 30 June 2012; allowing him to retain colonel promotion status for the remaining portion of the 2 years ending on his MRD, and exempting him from further promotion board consideration during that period.  This action will serve to void his selection for promotion by the DA RC board that convened on 19 October 2010.  Per Army Regulation 135-155, he was not eligible for promotion consideration based on the correction showing his SSB selection was valid.

6.  The applicant’s request for a personal appearance hearing was also carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not warranted to serve the interest of equity and justice in this case.

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 the state Army National Guard records and the Department of the Army records of the individual concerned be corrected by:

	a.  voiding his current MRD extension by NGB;

	b.  voiding his selection by the October 2010 promotion selection board and allowing his selection by the SSB to stand, which will in turn automatically extend his MRD to 30 June 2012; and

	c.  showing NGB granted him an MRD extension to 30 August 2014 after his selection by the SSB.

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:

	a.  granting the applicant a personal appearance before this Board, and

	b.  extending the applicant's mandatory removal date to 30 August 2016.



      _________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)                                         AR20100022274



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