BOARD DATE:	13 October 2011  

		DOCKET NUMBER:  AR20100030440 


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 that her retirement rank show she was a Colonel (COL/O-6), retroactive to the Fiscal Year (FY) 2008 United States Army Reserve (USAR) Army Promotion List (APL) Colonel Promotion Consideration Board.

2.  The applicant states the Department of the Army Suitability Evaluation Board (DASEB) granted her promotion reconsideration for the USAR Colonel Promotion Board as an exception to policy.  She was recommended by the 2009 Special Selection Board (SSB) in September 2009 and subsequently nominated and Senate confirmed in January 2010, 26 days after she was medically retired.  The selection was determined by using the FY08 USAR APL COL Consideration Board's criteria which convened in 2007.  She contends her effective date for promotion to COL should be August 2008, prior to the Assistant Secretary of the Army for Manpower and Reserve Affair's (ASA, M&RA) policy, dated 27 January 2009, regarding disabled officer's retiring.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty), effective 29 December 2009
* DASEB email, dated 6 March 2009
* Reserve Components (RC) Office of Promotions email, dated 26 March 2009
* DASEB memorandum, dated 6 March 2009
* U.S. Army Human Resources Command (USAHRC), RC Appeals Office, memorandum, dated 8 January 2008
* Congressional Record - Presidential Nomination, dated 26 January 2010
* Congressional Record - Senate promotion to COL confirmation, dated 
2 February 2010
* DASA Memorandum, Subject:  Grade of Officers when Retiring or Separating for Physical Disability, dated 27 January 2009
* RC Office of Promotions email, dated 27 July 2010
* Email sent to Officer Promotions Branch with United States Code (USC) extracts, undated

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently a retired USAR Lieutenant Colonel (LTC).

2.  Her military records show she was promoted to LTC effective 16 August 2003.

3.  On 9 January 2004, she was ordered to active duty in support of Operation Enduring Freedom.

4.  Orders A-05-511699, issued by USAHRC, dated 16 May 2005, retained the applicant on active duty as a medical holdover in the medical retention processing program for the completion of medical care and treatment for a period of 179 days.

5.  She was considered but not selected for promotion to COL by the Calendar Year (CY) 2007/Fiscal Year (FY) 2008 COL APL Selection Board.  This mandatory board convened on 29 October 2007 and adjourned on 20 November 2007.  The Selection Board results were Senate confirmed on 
29 April 2008.

6.  Orders A-06-810187, issued by USAHRC, dated 2 June 2008, retained the applicant on active duty as a medical holdover in the medical retention processing program for the completion of medical care and treatment for a period of 179 days.

7.  Orders A-01-900176, issued by USAHRC, dated 5 January 2009, retained the applicant on active duty as a medical holdover in the Warriors In Transition medical retention processing program for completion of medical care and treatment for a period of 249 days.

8.  On 30 April 2009, a Physical Evaluation Board (PEB) found the applicant’s condition prevented her from reasonable performance of duties required of a field grade officer in the U.S. Army Logistic Corps and recommended permanent disability retirement.
9.  On 29 December 2009, she retired by reason of physical disability in the grade of LTC/O-5.  She was placed on the permanent disability retired list (PDRL) on 30 December 2009.

10.  On 15 February 2008, the applicant filed a petition with the DASEB for removal of a General Officer Memorandum of Record (GOMOR).  The DASEB found the GOMOR to be unjust or untrue and approved her request on 6 March 2009.  In addition, the DASEB granted promotion reconsideration by an SSB as an exception to policy.

11.  She was selected for promotion to COL by a FY 2009 (FY2009) SSB.  The results of the SSB were Senate confirmed on 26 January 2010.

12.  In connection with the processing of this case, an advisory opinion was received from the Deputy Chief of Staff, G-1, Personnel Policy Integrator recommending favorable consideration/approval granting the applicant the promotion to COL under 2008 criteria and allowing the officer to retire at the grade of COL.   The applicant concurred with the recommendation on 
27 September 2011.

13.  The basis for recommendation was as follows:

   a.  In 2008, the applicant was non-selected for promotion by the 2008 COL, APL promotion selection board.  She was later medically retired on 29 December 2009.  During  the period between the 2008 COL, APL board and her retirement she requested and was given favorable consideration by an SSB, which recommended she be promoted to COL based on 2008 criteria.  The SSB was completed before her retirement date; however, as she was being promoted to COL, completion of the promotion action required confirmation by the Senate.  Senate confirmation came after her retirement (officer retired 29 December 2009, Senate confirmation given 26 January 2010).

   b.  The purpose of the SSB process is an attempt to consider and promote an officer based on previous promotion board guidance.  There are indicators that if the applicant was selected for promotion in 2008, that she could have been placed into a COL position and promoted with her 2008 COL, APL peers, on or about 29 April 2008 [Senate Confirmation Date].
   
   c.  Additionally, the applicant was retired via a policy action (retirement due to physical disability), vice as a matter of law (mandatory removal date), which allows for latitude in granting relief.

   d.  Recommend the officer's request be favorably considered which is in the best interest of the Army.

14.  Title 10, USC 1372, states unless entitled to a higher retired grade under
some other provision of law, any member of an armed force who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the temporary disability retired list under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following:

   a.  The permanent regular or reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination.
   
   b.  The temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired, if eligibility for that promotion was required to be based on cumulative years of service or years of service in grade and the disability was discovered as a result of a physical examination.

15.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the following policy and procedures used for selecting and promoting commissioned and warrant officers of the USAR.

   a.  Paragraph 3-22.  If the report of a special selection board, 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 (ABCMR) to correct the military record of the officer or former officer to correct an error or remove an injustice resulting from not being selected for promotion by the board which should have considered, or which did consider, the officer (10 USC 14502(e)(3)).

   b.  Paragraph 4–10.  Promotion requiring U.S. Senate confirmation.  Officers selected for promotion to the grade of COL will require Senate confirmation     (10 USC 12203(a)).
   
   c.  Paragraph 4-21.  If an officer is selected by a promotion advisory board/special selection board, the officer’s date of rank and effective date for pay and allowances would be the same as if the officer had been recommended for promotion to the grade by the mandatory board that should have considered, or that did consider, the officer. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests to be retired in the pay grade/rank of COL/O-6.

2.  The evidence shows the applicant was considered and not selected for promotion to COL by the FY 2008 COL APL Selection Board.  She was subsequently granted promotion reconsideration and selected for promotion to COL by an FY2009 RCSB SSB, under the FY 2008 COL APL selection criteria.  The results of the SSB were Senate confirmed on 26 January 2010; however, the applicant was medically retired on 29 December 2009.

3.  Regulatory guidance states that if an officer is selected by a promotion advisory board/special selection board, the officer’s date of rank and effective date for pay and allowances would be the same as if the officer had been recommended for promotion to the grade by the mandatory board that should have considered, or that did consider, the officer.  Therefore, the applicant's date of rank should be 29 April 2008, the date the mandatory board results were Senate confirmed.

4.  The Secretary of the Army may act through the ABCMR to correct the military record of the officer or former officer to correct an error or remove an injustice resulting from not being selected for promotion by the board which should have considered the officer.  Therefore, in view of the above, her request should be approved.

BOARD VOTE:

__x_____  ___x_____  ____x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

   a.  Showing she met all the eligibility criteria for promotion (i.e., being in an active status and being assigned to a COL position) and promoting her to COL effective and with a date of rank of 29 April 2009, and paying to her any associated back pay and allowances.

   b.  amending Orders Number 295-0140, issued by Headquarters, U.S. Army Garrison, Walter Reed Army Medical Center, dated 22 October 2009, to show she was retired in the grade/rank of COL with a date of rank of 29 April 2008;
   
   c.  amending item 4a (Grade, Rate or Rank) of her DD Form 214 to show COL; 
   
   d.  amending item 4b (Pay Grade) of her DD Form 214 to show O6; 

	e.  amending item 12i (Effective Date of pay Grade) of her DD Form 214 to show 29 April 2008; 

	f.  paying her all due back retired pay that may be due as a result of these corrections.




      _______ _  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)                                         AR20100030440





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ABCMR Record of Proceedings (cont)                                         AR20100030440



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