IN THE CASE OF:	 

		BOARD DATE:	  1 November 2011

		DOCKET NUMBER:  AR20110003972 


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 promotion to lieutenant colonel (LTC) by the September 2005 Special Selection Board (SSB) with back pay and allowances and placement on the Retired List in the grade of LTC.

2.  The applicant states he retired as a major (MAJ) in February 2008 with over 28 years of service.  In December 2010, he was told he had been selected for promotion to LTC by the 2005 SSB pursuant to the Army Board for Correction of Military Records (ABCMR) directive in Docket Number AR20060009744, dated 24 May 2007.  Officials at the U.S. Army Human Resources Command (HRC) told him he would have to have his retirement orders revoked to accept the promotion.  He believes that is all that needs to be done to retire at that grade: revoke his retirement orders, issue promotion orders, and reissue new retirement orders with the correct grade.  The intent of the Board was clear in that in the event he was selected by a promotion board, he would be allowed to accept the promotion and retire at the highest grade held.

3.  The applicant previously petitioned the ABCMR for credit of at least 50 points per year for retirement years ending (RYE) 1995 to 2003 and RYE 2005 and pay and allowances for those years; credit of 3 additional points to RYE 1993, making it a good retirement year; and compensation or relief for lieutenant colonel/colonel promotion boards.  He previously stated:

	a.  He was erroneously placed in the Retired Reserve in 1993 instead of the Individual Ready Reserve (IRR).  However, based on the results of an SSB that convened in 2004 as a result of a previous application to the ABCMR (Docket Number AR20040008786, dated 27 April 2004), he was promoted to MAJ with an effective date of 3 August 1993.  He pointed out that he was immediately eligible for promotion to LTC; however, he was denied reentry into the IRR or the Army National Guard (ARNG) until January 2003 because everyone believed he was "already retired."  Since he could not get back into the Army during that time (1995 to 2003), he was not allowed to enroll in the Command and General Staff College (CGSC).  One of the criteria for promotion to LTC is 50-percent completion of CGSC.  He also stated that had the IRR versus Retired Reserve situation been corrected in 1995 when he pointed it out to HRC officials, he would have been eligible to enroll in the CGSC and have had plenty of time to complete 50 percent of the course.

	b.  HRC officials knew of the problem in 1995 and did not correct it, it is not his fault he was placed in the Retired Reserve without his permission, and telephone calls and emails to correct the problem went unanswered.  He was grateful the ABCMR allowed him to correct the injustice with the 1993 promotion board; however, he still had unanswered issues.  He could not have met the criteria for promotion to LTC when he was not allowed to enroll in the CGSC prior to his LTC promotion eligibility dates and he should not have been penalized for something he repeatedly tried for years to correct.  Nothing in his career indicated he would not have enrolled and completed CGSC if given the opportunity and nothing in his career suggested he would not have been promoted if given the opportunity.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 17 September 1951.  He was appointed as a second lieutenant in the ARNG on 12 August 1978.  He served in a variety of assignments and he was promoted to captain on 4 August 1986.

2.  He was honorably separated from the ARNG by reason of resignation on 8 June 1992.  His separation order and his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) both indicate he was transferred to the USAR Control Group (Reinforcement or IRR).

3.  It appears he was erroneously transferred to the Retired Reserve sometime in July 1992.  However, despite being in the Retired Reserve, in 1993 he was considered for promotion to MAJ, but he was not selected.  He was advised on 3 May 1993 to provide proof of his completion of the Field Artillery Officer Advanced Course for possible promotion reconsideration.  There is no indication he complied with this request.

4.  The applicant's USAR Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points), dated 8 March 2007, shows he earned an average of 69 retirement points during his last three RYEs prior to 29 October 1993.  The form shows he earned 15 membership points per year from RYE 29 October 1993 through 29 October 2002, 55 points during RYE 29 October 2003, 114 points during RYE 29 October 2004, 79 points during RYE 29 October 2005, and 71 points during RYE 29 October 2006.  He was credited with 19 years qualifying service for retirement at age 60 as of RYE 29 October 2006.  He would reach his 60th birthday on 17 September 2011.

5.  His records show he was reinstated in the USAR Control Group (IRR) on 2 February 2003.  He was assigned to the 694th Maintenance Battalion, San Antonio, TX.

6.  On 19 June 2003, he petitioned the ABCMR for promotion to MAJ and approval of additional time which would allow him to complete 20 qualifying years for retired pay at age 60.  He contended that in 1992, he requested a transfer from the Texas ARNG (TXARNG) to the USAR Control Group (Reinforcement), but he was erroneously placed in the Retired Reserve.

7.  On 27 April 2004, the Board determined the evidence presented did not demonstrate the existence of a probable error or injustice and denied his request.

8.  Nevertheless, HRC officials determined he was eligible for consideration for promotion to MAJ by an SSB.  Accordingly, he was considered by the December 2005 SSB for promotion to MAJ under the 1993 criteria.  He was selected for promotion to major and was promoted with an effective date and date of rank (DOR) of 3 August 1993.  The board was approved on 24 February 2006 and board results were released on 14 March 2006.

9.  Based on his selection for promotion to MAJ with the 1993 DOR, he was in the zone of consideration for promotion to LTC for the 1999 through 2005 calendar year selection boards; however, he did not meet the required education for the boards.

10.  On 17 May 2006, Headquarters, 99th Regional Readiness Command, Little Rock, AR, issued him a 3-year extension past his mandatory removal date (MRD) of 11 August 2006.  His new MRD was determined as 10 August 2009 or upon reaching 20 qualifying years of service, whichever date is first.  He was not authorized to perform any military duties after his MRD.

11.  He was considered by the September 2006 LTC Army Promotion List Department of the Army Reserve Components Selection Board (RCSB) that convened on 12 September 2006, but he was not selected.  Prior to the September 2006 promotion board, he applied for a military education waiver for the 2006 board.  On 31 August 2006, a memorandum of RC Promotion Board Military Education Waiver Guidance was issued which stated the military education requirement in accordance with Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) is completion of 50 percent CGSC or completion of Intermediate Level Education (ILE).  The prerequisite for a military waiver for ILE is completion of the Combined Arms and Services Staff School or Combined Arms and Exercise Course.  On 31 August 2006, the applicant's military education waiver was denied due to not completing the prerequisites of ILE.

12.  On 24 May 2007, in response to the applicant's petition, dated 29 June 2006, the Board granted partial relief as follows (and as applicable to this case) (Docket Number AR20060009744):

	a.  that, following the administrative implementation of the foregoing, his records be submitted to a duly-constituted SSB for reconsideration for promotion to LTC, as required, beginning with the criteria of the 2000 promotion selection board and showing he was granted a waiver for the military education requirement for promotion to LTC beginning with the 2000 promotion selection board (and later promotion boards, if required);

	b.  that, if he is selected for promotion to LTC sufficiently early and meeting all other eligibility requirements, his records be submitted to a duly-constituted SSB for consideration for promotion to colonel (COL).  Granting a military education waiver for promotion consideration to COL is not approved; 

	c.  if not selected for promotion to LTC or, if applicable, to COL, so notifying him; and

	d.  the Board recommended denial of so much of the application that pertains to compensation or relief for COL promotion boards beyond that granted above.

13.  On 2 August 2007, he was issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified him he had completed the required qualifying years of Reserve service and would be entitled to retired pay upon application at age 60.

14.  On 5 February 2008, Headquarters, Regional Support Group-West, Arlington Heights, IL, published Orders 08-036-00050 releasing him from his assignment and transferring him to the Retired Reserve in the rank of MAJ effective 5 February 2008 by reason of having completed 20 or more years of qualifying service for retired pay at age 60.  His corrected and adjusted ARPC Form 249-E shows he was credited with 27 years of qualifying service for nonregular retired pay.

15.  Pursuant to the ABCMR's directive in Docket Number AR20060009744, dated 24 May 2007, he was considered by an SSB under various year criteria as follows.

	a.  On 21 March 2008, he was notified he was considered for promotion to LTC by an SSB under the 2000-year criteria, but he was not selected.

	b.  On 1 July 2009, he was notified he was considered for promotion to LTC by an SSB under the 2001-year criteria, but he was not selected.

	c.  On 20 August  2009, he was notified he was considered for promotion to LTC by an SSB under the 2003-year criteria, but he was not selected.

	d.  On 16 November 2009, he was notified he was considered for promotion to LTC under the 2002-year criteria, but he was not selected.

	e.  On 20 May 2010, he was notified he was considered for promotion to LTC under the 2004-year criteria, but he was not selected.

16.  In or around June 2010, he was considered for promotion to LTC under the 2005-year criteria and he was selected for promotion.  The Report 
Number 1006-06 for the 2010SS10R-SSB was not approved because the applicant was no longer on the Reserve Active Status List (RASL) when the Secretary of Defense processed the board.

	a.  The RASL is a list required to be maintained that contains the names of all officers except warrant officers (including commissioned warrant officers) who are in an active status in a Reserve Component of the Army and are not on an Active Duty List (ADL).

	b.  In accordance with Title 10, U.S. Code (USC), section 14317, if the officer is not on the RASL, the board will not be approved (unless the officer is placed back on the RASL by a directive from an appropriate authority such as the ABCMR).  In essence, there is no "approved" recommendation for the report number 1006-06.

	c.  The approval date of the 2005 LTC APL board is 30 December 2005.  The approval date is the earliest date of rank for LTC that can be awarded provided the officer is otherwise fully eligible for promotion.
17.  On 1 June 2011, HRC, St. Louis, MO, published Orders P06-946193 placing him on the Retired List in the rank of MAJ effective 17 September 2011, the date he turned age 60, in accordance with Title 10, USC, section 12731.

18.  Title 10, USC, section 14304, states that officers shall be placed in the promotion zone for that officer's grade and competitive category and shall be considered for promotion to the next higher grade by a promotion board far enough in advance of completing the years of service in grade specified so that, if the officer is recommended for promotion, the promotion may be effective on or before the date on which the officer will complete those years of service.  The maximum "years of service" for promotion to LTC is 7 years.

19.  The Secretary of the Army established the promotion zone for the 2000 LTC's RCSB for officers with dates of rank for MAJ from 2 January 1993 through 1 January 1994.

20.  Title 10, USC, section 14506, states each Reserve officer who holds the grade of MAJ 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 be removed from the RASL on 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, unless retained as provided in, among other sections, section 14701.

21.  Title 10, USC, section 14701(a), states a Reserve officer who is required to be removed from the RASL under section 14506 may, subject to the needs of the service, be considered for continuation on the RASL under regulations prescribed by the Secretary of Defense.  Section 14701(a)(3) states a Reserve officer who holds the grade of MAJ and who is subject to separation under section 14513 (due to being twice failed of selection for promotion) may not be continued on the RASL for a period which extends beyond the last day of the month in which the officer completes 24 years of commissioned service.

22.  Title 10, USC, section 14317 (Officers in Transition to and from the Active Status List or ADL), states in sub-paragraph (a) if a Reserve officer on the RASL is transferred to an inactive status or to a retired status after having been recommended for promotion to a higher grade under this chapter or chapter 36 of this title, or after having been found qualified for Federal recognition in the higher grade under Title 32, but before being promoted, the officer:
	a.  shall be treated as if the officer had not been considered and recommended for promotion by the selection board or examined and been found qualified for Federal recognition; and

	b.  may not be placed on a promotion list or promoted to the higher grade after returning to an active status, unless the officer is again recommended for promotion by a selection board convened under chapter 36 of this title or section 14101(a) or 14502 of this title or examined for Federal recognition under Title 32.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's circumstances had clearly been unusual.  Following his resignation from the ARNG and transfer to the USAR Control Group (IRR) in June 1992, he was erroneously transferred to the Retired Reserve in July 1992.

2.  When he was finally reinstated in the USAR Control Group (IRR) in February 2003, he was considered for promotion to MAJ under the 1993 criteria.  He was selected for promotion to MAJ with a DOR and effective date of 3 August 1993.  Based on the regulatory requirement of 7 years, his August 1993 DOR qualified him for promotion consideration to LTC as early as the year 2000.

3.  He petitioned the ABCMR in 2006 for service credit and consideration for promotion by an SSB.  The Board granted him relief regarding service credit and promotion consideration by an SSB.  The Board did not order his promotion to LTC.  The Board simply recommended his records be considered by an SSB beginning with the 2000 promotion selection board (and later promotion boards, if required).

4.  He was transferred to the Retired Reserve in February 2008.  Nevertheless, the Board's directive was carried out and he was considered for promotion to LTC by the years 2000, 2001, 2002, 2003, and 2004, but he was not selected for promotion.

5.  He was selected for promotion to LTC under the 2005 criteria by an SSB that convened in 2010.  However, by that time he had already been transferred to the Retired Reserve and was no longer on the RASL.  His SSB report was not approved because he was not on the RASL when the Secretary of Defense processed the board.  By law,if the officer is not on the RASL, the promotion board will not be approved.  Therefore, his promotion selection was considered null and void.

6.  Nevertheless, had the applicant been on the RASL at the time the Secretary of Defense processed the promotion board, he would have been promoted, if otherwise eligible.  Therefore, he should be entitled to this promotion and retirement at the higher grade. 

BOARD VOTE:

____X____  ____X____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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:

* Voiding Orders 08-036-00050, issued by Headquarters, Regional Support Group - West, Arlington Heights, IL, on 5 February 2008, transferring him to the Retired Reserve in the rank of MAJ on 5 February 2008
* Showing he met all eligibility criteria for promotion to LTC (e.g. being in an active status and assigned to a LTC position) with an appropriate effective date and date of rank, and paying to him any associated back pay and allowances
* Issuing him new orders transferring him to the Retired Reserve in the rank of LTC effective 5 February 2008 or the date he would have completed     3 years time in grade as an LTC, whichever is later
* Amending Orders P06-946193, issued by HRC - STL on 17 September 2011, to show he was placed on the Retired List on his 60th birthday in the rank of LTC with entitlement to all pay and allowances



      _____________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)                                         AR20110003972



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ABCMR Record of Proceedings (cont)                                         AR20110003972



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