IN THE CASE OF:	  

		BOARD DATE:	  1 February 2011

		DOCKET NUMBER:  AR20100030307 


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:

* His involuntary retirement orders, effective 2 December 2009, be voided
* Reinstatement into his former active Reserve status in a troop program unit (TPU), Delta Company, 404th Civil Affairs Battalion
* Promotion to lieutenant colonel (LTC) as of the release date of the 2009 Reserve Active Promotion List (APL), January 2010
* Amendment of his mandatory retirement date (MRD) to 21 January 2014, or in the alternate 1 March 2013
* A personal hearing

2.  The applicant states:

	a.  He was forced to retire in December 2009 based on inaccurate information regarding his MRD.  He had a 2008 MRD when all official records continuously stated his MRD was in 2012.  Additionally, his name was listed on the January 2009 Reserve promotion list for promotion to LTC.  He appealed that decision to the Army Board for Correction of Military Records (ABCMR) but his appeal was administratively closed.  He then contacted officials at HRC who confirmed that his MRD was in 2012.  

	b.  He was granted a branch transfer in 2008 in exchange for a 3-year commitment which could not have occurred if his MRD was in 2008.  Additionally, his promotion consideration and selection could not have happened if his MRD was in 2008.  
3.  The applicant provides:

* Two self-authored statement
* Letter from the Case Management Division, Army Review Boards Agency
* Email exchange with officials at the U.S. Army Human Resources Command, St. Louis, MO (HRC-STL)
* Verification of MRD date
* Retired Reserve orders
* Fiscal Year 2009 (FY09) LTC Reserve Component (RC)/APL Selection Board Results
* SMS (Soldier Management System) Printout
* Approval of grade waiver to attend CA Qualification Course (CAQC), CAQC Diploma, and DA Form 1059 (Service School Academic Evaluation Report)
* Branch transfer memorandum
* Orders 08-094-00080, 09-294-00107, and 09-317-00011 (orders to active duty and revocation)
*  Orders 09-317-00012 (reassignment orders)

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 21 January 1954.

2.  Having had prior enlisted service, his records show he was appointed as a second lieutenant in the New Jersey Army National Guard (NJARNG) and executed an oath of office on 21 July 1984.  He served as an armor officer in staff or leadership positions and attained the rank of major (MAJ) on 19 November 1998.

3.  He was honorably discharged from the ARNG on 31 October 2001 with a general character of service and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  He had completed 24 years, 7 months, and 9 days of total service for pay, of which 21 years and 1 day of service was for retired pay. 

4.  On 15 December 2006, he was transferred from the USAR Control Group (Reinforcement) to a TPU, the 40th CA Battalion, Fort Dix, NJ.

5.  His records show he was considered for promotion to LTC by the 2007 Promotion Selection Board that convened on 11 September 2007 but he was not selected. 

6.  On 14 February 2008, he completed the CAQC (26 November 2007 to 14 February 2008), at Fort Bragg, NC, and on 1 April 2008, his request for a branch transfer from armor to CA was approved effective 10 March 2008.

7.  On 8 May 2008, he was ordered to active duty in support of Operation Iraqi Freedom and subsequently served in Iraq from 4 June 2008 through 25 April 2009.

8.  While mobilized, his records were considered for promotion to LTC by the 2008 Promotion Selection Board that convened on 8 September 2008 but he was again not selected.  

9.  He was honorably released from active duty on 22 May 2009.

10.  On 21 October 2009, he was again ordered to active duty for a period of 400 days in support of Operation Enduring Freedom.  However, his mobilization orders were revoked on 13 November 2009.

11.  On 3 November 2009, HRC-STL published Orders C-11-920090 releasing him from his TPU and transferring him to the Retired Reserve by reason of having been twice non-selected for promotion.

12.  On 21 January 2010, the Army officially released the results of the FY09 LTC RC/APL Selection Board Results.  This board had convened on or about 8 September 2009.  

13.  On 27 June 2010, by letter, the Chief of Transition and Separations branch, HRC-STL notified the applicant that a review of appropriate laws and regulations determined that the applicant's MRD is 1 August 2012.

14.  On 17 November 2010, by email, an official at HRC-STL notified him that his MRD of 1 August 2012 was based on 28 years of commissioned service from date of appointment (21 July 1984).  The official added that although the applicant was a two time non-select for promotion to LTC which resulted in either his discharge or transfer to the Retired Reserve, he was placed on the Promotion Selection List, which according to Title 10, U.S. Code (USC), sections 14506 and 14701 would have allowed him to serve until he reached 24 years of commissioned service.  At the time he was identified as a two time non-select, he had already reached 24 years of service.  Accordingly, he was transferred to the Retired Reserve.  His selection for promotion occurred after he had been retired.

15.  Title 10, USC, section 14506 (Effect of failure of selection for promotion: Reserve MAJs of the Army) states, in pertinent part, unless retained as provided in other sections of this title, each Reserve officer of the Army who holds the grade of major who has failed of selection to the next higher grade for the second time and whose name 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 (RASL), be removed from that list in accordance with section 14513 of this title on the later of the first day of the month after the month in which the officer completes 20 years of commissioned service, or the first day of the seventh month after the month in which the President approves the report of the board which considered the officer for the second time. 

16.  Title 10, USC, section 14701 (Selection of officers for continuation on the (RASL) states, in pertinent part, a Reserve officer who holds the grade of major and who is subject to separation under section 14513 of this title may not be continued on the RASL under this subsection for a period which extends beyond the last day of the month in which the officer completes 24 years of commissioned service.

17.  Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) provides for the assignment, transfer, and separation of USAR personnel.  Paragraph 7-4b states that an officer who twice fails selection for promotion to MAJ will be discharged unless eligible for and requests transfer to the Retired Reserve.

18.  Army Regulation 140-10 (Army Reserve - Assignments, Attachments, Details, and Transfers) prescribes policy and procedures for assigning, attaching, removing, and transferring USAR 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 MAJs 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.

19.  Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding and applicant’s request for the correction of a military record.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.  The ABCMR may, in its discretion, hold a hearing.  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 should be reinstated onto the RASL, promoted to LTC, assigned to his former TPU, and have his MRD adjusted. 

2.  With respect to the personal hearing, the applicant’s request for a personal appearance hearing was 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 necessary to serve the interest of equity and justice in this case.

3.  With respect to his MRD, the applicant's MRD of 1 August 2012 is not in question.  He was appointed on 21 July 1984 and, as a MAJ, could serve for 28 years, thus establishing his MRD as 1 August 2012.  However, the applicant's transfer to the Retired Reserve was based on his two non-selections for promotion to LTC.  He was considered by the 2007 and the 2008 selection boards but he was not selected.  At the time of his second non-selection, he had completed more than 24 years of service.  

4.  By law, a Reserve MAJ who is subject to separation under Title 10, USC, section 14513, may not be continued on the RASL for a period which extends beyond the last day of the month in which he completes 24 years of commissioned service.  Accordingly, he was transferred to the Retired Reserve.  There is neither an error nor an injustice.

5.  With respect to his promotion to LTC, at the time the promotion board convened on 8 September 2009, he was erroneously considered.  Nevertheless, at the time this promotion board was approved on 21 January 2010, 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.  

6.  In view of the foregoing evidence, he is not entitled to any of the 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)                                         AR20100030307





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ABCMR Record of Proceedings (cont)                                         AR20100030307



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