IN THE CASE OF:	  

		BOARD DATE:	24 May 2011

		DOCKET NUMBER:  AR20100026100 


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, in effect,

* education waivers with consecutive promotion corrections due to the findings of Army Board for Correction of Military Records (ABCMR) Docket Number AR20070001144, dated 2 August 2007
* a 4-year extension of his mandatory removal date (MRD) to allow him to qualify for a 20-year nonregular retirement

2.  The applicant states, in effect,

* U.S. Army Human Resources Command (HRC) advised that it cannot grant education waivers or make date of rank (DOR) corrections unless specifically directed to do so by the ABCMR
* ABCMR Docket Number AR20070001144 directed the correction of his DOR to captain (CPT)
* incident to his DOR correction for CPT, he now requests education waivers in order to accurately correct DOR's to major (MAJ), lieutenant colonel (LTC), and colonel (COL)
* prior to his 2007 ABCMR-directed DOR correction, incorrect rank and grades held in previous years prohibited him from fulfilling the education requirements necessary to be competitive by later selection boards
* he is now fully compliant with his educational requirements
* the same clerical errors in his records kept him from being an active troop program unit (TPU) participant, today leaving him 4 years short of a full 20-year nonregular retirement

3.  The applicant provides:

* self-authored statement
* ABCMR Docket Number AR20070001144
* U.S. Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points), dated 22 September 2010
* DA Form 2-1 (Personnel Qualification Record)
* DA Form 67-9 (Officer Evaluation Report (OER)) for the period 3 March 2010 through 30 June 2010
* DA Form 67-9 for the period 6 August 2009 through 2 March 2010
* DA Form 67-9 for the period 15 February 2004 through 21 July 2004
* DA Form 67-9 for the period 22 July 2003 through 14 February 2004
* DA Form 67-9 for the period 24 February 2001 through 23 February 2002
* Orders 146-74, Headquarters, 1st Reserve Officers' Training Corps (ROTC) Region, Fort Bragg, NC, dated 15 July 1983
* HRC MRD calculators (2 pages)

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving as an LTC in the U.S. Army Reserve (USAR).

2.  He was commissioned as a second lieutenant (2LT) in the USAR on 16 August 1983.  He entered active duty for training (ADT) on 14 November 1987 and completed the Infantry Officer Basic Course.  He was honorably released from ADT on 23 March 1988.

3.  He served as an Adjutant General's Corps officer in the USAR and he was promoted to first lieutenant (1LT) on 15 August 1986 and to CPT on 11 April 1995.

4.  On 29 January 1996, he submitted an application for appointment as a Reserve commissioned officer in the Medical Services (MS) Corps.  In connection with his appointment, a DA Form 5074-1-R (Record of Award of Entry Grade Credit (Health Services Officers)) was submitted on 26 February 1996.  This form shows he was awarded zero constructive service credit and his entry grade as an MS officer was determined to be 2LT.

5.  On 15 March 1996, he was appointed as a Reserve commissioned officer in the rank of 2LT in the MS Corps.  His appointment memorandum shows he was granted 3 months and 21 days of constructive credit for his prior commissioned service.

6.  He again entered ADT on 12 January 1997, completed the Army Medical Department (AMEDD) Officer Basic Course, and he was honorably released from ADT on 1 April 1997.

7.  His records show he was promoted to the following USAR grades with the following DOR's:

* 1LT – 23 November 1997
* CPT – 30 July 2002
* MAJ – 19 May 2008
* LTC – 20 October 2010

8.  On 2 July 2003, he successfully completed the AMEDD Reserve Components (RC) Officer Advanced Course (21 June to 2 July 2003) and he successfully completed the Staff Process Course of the Combined Arms and Services Staff School on 20 December 2003.

9.  On 2 August 2007, the ABCMR granted his request for correction of his records as follows:

* determined his 19 April 1996 DA Form 5074-1-R was incorrect
* awarded him 6 years, 3 months, and 14 days of constructive service credit for prior service as a commissioned officer
* directed his DOR to CPT be adjusted to 1 December 1991
* directed his records be placed before a special selection board (SSB) for promotion to MAJ

10.  Based on the Board's decision, his records were placed before an SSB and he was considered and selected for promotion to MAJ under the 2004 AMEDD criteria.

11.  His previous promotion order to MAJ effective 19 May 2008 was revoked and he was issued a new order promoting him to MAJ with an effective date and DOR of 27 April 2004.

12.  He was not considered for promotion to MAJ by the 1998 through 2003 AMEDD RC Selection Boards (RCSB) because he lacked the education requirements for consideration.

13.  In an advisory opinion, dated 12 April 2011, the Chief, Special Actions Branch, Department of the Army (DA) Promotions, HRC, Fort Knox, KY, recommended that he be granted education waivers and SSB consideration for promotion to MAJ and LTC under earlier criteria than previously promoted.  He further recommended that, if granted waivers, selected, and promoted under earlier criteria, he be evaluated for eligibility for an education waiver and promotion consideration to COL by an SSB.  The applicant was provided a copy of the advisory opinion and he acknowledged and agreed with the opinion on 24 April 2011.

14.  He provides:

	a.  ARPC Form 249-E, dated 22 September 2010, which shows he has accumulated 15 qualifying years for retirement as of 15 August 2010;

	b.  DA Form 2-1 which shows he completed the AMEDD Officer Advanced Course in 2003, Combined Arms and Services Staff School in 2003, and phases 1-3 of the intermediate level education (formerly known as Command and General Staff College (CGSC)) in 2008;

	c.  his OER's covering several rating periods from 2001 through 2010;

	d.  Orders 146-74, Headquarters, 1st ROTC Region, Fort Bragg, NC, dated 15 July 1983, which show he was assigned to the USAR Control Group effective 16 August 1983 for the purpose of completing his baccalaureate degree requirements; and

	e.  HRC MRD calculators which show his MRD at 28 years and 30 years of commissioned service as 1 September 2013 and 1 September 2015, respectively.  Both dates are calculated with a 2-year break in service which could not be substantiated in the applicant's record.

15.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), chapter 2, specifies the minimum and maximum years of time in grade (TIG) and educational prerequisites for promotion consideration.  This chapter states that for promotion consideration to:

* MAJ – CPT's must have a minimum of 4 years, up to a maximum of 7 years, TIG and must have completed an officer advanced course
* LTC – MAJ's must have a minimum of 4 years, up to a maximum of 7 years, TIG and must have completed 50 percent of the CGSC
* COL – LTC's must have a minimum of 3 years, up to a maximum of 5 years, TIG (subject to the needs of the Army) and must have completed the entire CGSC

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

17.  Army Regulation 135-155 further specifies that the Chief, DA Promotions, is the approval authority for all current criteria requests for exception to non-statutory promotion requirements (i.e., military education) and that requests must contain complete justification and be received prior to the board convening date.

18.  Title 10, U.S. Code, section 14507, governs the removal from the Reserve Active Status List (RASL) for years of service for reserve LTC's and COL's.

	a.  Unless continued on the RASL 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 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 RASL) 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.  Unless continued on the RASL 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 who holds the grade of COL and who is not on a list of officers recommended for promotion to the next higher grade shall (if not earlier removed from the RASL) 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.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, it would be equitable to:

* show he was granted an education waiver for promotion to MAJ
* grant an SSB for promotion consideration to MAJ under the 1998-year criteria and thereafter to the year 2003

2.  Also, if he is selected for promotion to MAJ under the 1998 through 2003-year criteria it would be equitable to:

* show he was granted an education waiver for promotion to LTC
* grant an SSB for promotion consideration to LTC under the appropriate year criteria as determined by his DOR to MAJ

3.  Also, if selected for promotion to LTC it would be equitable to:

* show he was granted an education waiver for promotion to COL
* grant an SSB for promotion consideration to COL under the appropriate year criteria as determined by his DOR to LTC

4.  The applicant contends his MRD should be extended by 4 years to allow him to qualify for a 20-year nonregular retirement.  The evidence of record shows he has accumulated 15 qualifying years for retirement as of 15 August 2010.  He should accumulate his 16th qualifying year on 15 August 2011 before his current MRD of 30 September 2011.  His MRD will be extended by 2 years if he is selected for promotion to COL by an SSB; however, even with this hypothetic extension, he will not have sufficient service to qualify for a 20-year nonregular retirement.  Accordingly, his MRD should not be extended.

5.  In view of the foregoing, the applicant's records should be corrected as recommended below.

BOARD VOTE:

________  ________  _________  GRANT FULL RELIEF 

___X____  ____X___  ____X___  GRANT PARTIAL RELIEF 

________  ________  _________  GRANT FORMAL HEARING

________  ________  _________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing:

	a.  his request for the required military education waiver was approved prior to the convening date of the 1998 through 2003 MAJ AMEDD RCSB's;

	b.  that following administrative implementation of the foregoing, his records be submitted to a duly-constituted SSB for promotion consideration to MAJ under the 1998-year criteria;

	c.  if not selected for promotion to MAJ, his records be submitted to a duly-constituted SSB for promotion consideration to MAJ under the 1999 through 2003-year criteria;

	d.  if selected for promotion, his records should be corrected by showing he was promoted on his date of eligibility as determined by appropriate Departmental officials using the appropriate year criteria under which he was selected, provided he was otherwise qualified and met all other prerequisites for promotion;

	e.  that following administrative implementation of the foregoing, his records be corrected by showing he was granted the required military education waiver and his records be submitted to a duly-constituted SSB for promotion consideration to LTC under the appropriate year criteria;

	f.  if selected for promotion to LTC, his records should be corrected by showing he was promoted on his date of eligibility as determined by appropriate Departmental officials using the appropriate year criteria under which he was selected, provided he was otherwise qualified and met all other prerequisites for promotion;

	g.  that following administrative implementation of the foregoing, his records be corrected by showing he was granted the required military education waiver and his records be submitted to a duly-constituted SSB for promotion consideration to COL under the appropriate year criteria;

	h.  if selected for promotion to COL, his records should be corrected by showing he was promoted on his date of eligibility as determined by appropriate Departmental officials using the appropriate year criteria under which he was selected, provided he was otherwise qualified and met all other prerequisites for promotion; and

	i.  that he be so notified of his non-selections.


2.  The Board further determined 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 4-year extension of his MRD.



      ____________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)                                         AR20100000119



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ABCMR Record of Proceedings (cont)                                         AR20100026100



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