IN THE CASE OF:	   

		BOARD DATE:	  9 February 2012

		DOCKET NUMBER:  AR20110004987 


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 colonel (COL)/O-6 in the U.S. Army Reserve.

2.  He states:

* he was selected for promotion to COL during a Special Selection Board (SSB) for reconsideration
* his promotion was verified by Presidential Nomination PN2011-01-109, dated 29 September 2006
* the Senate confirmation was not completed prior to his retirement on 1 June 2006
* he was never notified of his selection for promotion to COL

3.  He provides:

* Presidential Nominations, 109th Congress (2005-2006), PN2011-109
* Electronic mail (e-mail) correspondence 
* Retirement orders
* Two DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the period ending 2 April 2004 and 31 May 2006
* Five DA Forms 67-8 (Officer Evaluation Reports (OERs)) for the period ending 21 March 2004, 13 July 2004, January 2005, 26 May 2005, and 26 May 2006
* Legion of Merit award certificate

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant completed prior enlisted service in the U.S. Marine Corps.  He was appointed as a captain in the Regular Army (RA) on 4 June 1978.  On 1 July 1989, he was discharged from the RA under the provisions of Army Regulation 635-120 (Personnel Separations - Officer Personnel), chapter 11, by reason of failure of selection for permanent promotion.

3.  On 2 July 1989, he was appointed as a Reserve commissioned officer in the rank of captain.

4.  He was promoted to major (MAJ)/O-4 on 23 March 1990 and to lieutenant colonel (LTC)/O-5 on 13 June 1995.

5.  By memorandum, dated 2 November 2000, he was notified that a Department of the Army Reserve Components Selection Board (RCSB) convened on 11 July 2000 to consider officers of his grade for promotion to COL.  He was considered for promotion, but he was not selected.

6.  He was issued his Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter) on 1 August 2001.

7.  By memorandum, dated 14 November 2002, he was notified that a DA RCSB convened on 8 July 2002 to consider officers of his grade for promotion.  He was considered for promotion, but he was not selected.

8.  He was issued a DD Form 214 for the period ending 2 April 2004 that shows he was ordered to active duty from 14 February 2003 through 2 April 2004 in support of Operation Enduring Freedom.


9.  On 3 April 2004, he was ordered to active duty to obtain 20 years of active Federal service under the Extended Active Duty (EAD) Sanctuary Program.  He was assigned to the Military Awards Branch, U.S. Human Resources Command (USAHRC), Alexandria, VA.

10.  In a 26 October 2005 e-mail, a Human Resources Assistant, Office of Promotions (Reserve Component (RC)) indicated that his request for an SSB was acknowledged.  He would be notified in writing if he had a basis for an SSB and that the process could take up to a year.  He would also be notified by mail of his selection or non-selection once the board results were approved for released.

11.  On an unknown date, he was considered by an SSB and selected for promotion to COL under the 2004 selection criteria.  The 2004 selection board results were approved on 3 November 2004 and received Senate confirmation on 17 February 2005.

12.  Orders 132-0004, issued by Headquarters, U.S. Army, Fort Dix, NJ, dated 12 May 2006, retired him from active duty on 1 June 2006 and on the following day he was placed on the Retired List in the rank/grade of LTC/O-5.  His retirement orders show he completed 20 years, 9 months, and 26 days of service for retirement; 22 years, 9 months, and 17 days of service creditable for retired pay under section 1405; and 35 years and 27 days of service for basic pay purposes.

13.  He was issued a DD Form 214 for the period ending 31 May 2006 that shows he was ordered to active duty this period on 3 April 2004 and was retired from active duty on 31 May 2006.  This DD Form 214 shows he completed
2 years, 1 month, and 28 days net active service this period; 18 years, 7 months, and 28 days of total prior active service; and 14 years, 3 months, and 1 day of total prior inactive service.

14.  He provided the Presidential Nominations, 109th Congress (2005-2006), PN2011-109, which listed 15 officers nominated for appointment to the rank of COL in the Reserve of the Army under Title 10, U.S. Code, section 12203.  The applicant's name was listed as one of the nominees.  The Senate received the nominations on 13 September 2006 and confirmed the promotions on 29 September 2006.

15.  E-mail correspondence between the applicant and a Human Resources (HR) Assistant at the Office of Promotions (RC), St Louis, MO shows on:

	a.  18 June 2008, the applicant asked the HR Assistant to clarify the official notification of his selection for promotion to COL by Congress in September 2006.
		(1)  The applicant informed the HR Assistant that the Army retired him on 1 June 2006;

		(2)  He contacted the Promotion Branch Chief, he was told to apply to the ABCMR to effect his promotion, and that St. Louis could not publish his promotion orders; and

		(3)  He inquired if he could get an official letter stating he was selected for promotion to COL, but orders were not published due to his retirement.

	b.  23 June 2008, the HR Assistant responded to him by stating:

		(1)  he was selected by an SSB under the 2004 criteria;

		(2)  he should have received a selection letter from the Notifications Branch; and

		(3)  even if he was retired, he would have had the option to have it revoked and be promoted.

	c.  24 June 2008, he explained to the HR Assistant that:

		(1)  the Active Army forced him to retire;

		(2)  he was a Reservist who went over 18 years of active federal service while mobilized;

		(3)  he was granted "sanctuary," moved to the Active Duty List (ADL), and given 2 years of active service to allow him to complete 20 years active duty; and

		(4)  he doesn't know how all this affects a possible promotion.

16.  The reserve active status list (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 an RC of the Army and are not on an ADL.

17.  In accordance with Title 10, U.S. Code, 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).

18.  Title 10. U.S. Code, section 1370(2)(a), provides that in order to be eligible for voluntary retirement under any provision of this title in a grade above major, he/she must have served on active duty in that grade for not less than 3 years, except that the secretary of Defense may authorize the Secretary of a military department to reduce such period to a period not less than 2 years.

19.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other Than General Officers) prescribes policy and procedures used in the selection and promotion of commissioned officers of the Army National Guard (ARNG) of the United States and the commissioned and warrant officers of the U.S. Army Reserve (USAR).  It states that an officer in the rank of LTC or COL must serve in that grade for not less than 3 years from the date of promotion to voluntarily retirement in that grade unless waived under some other provision of law.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s statements in regard to his promotion to COL are acknowledged and the evidence of record clearly indicates an error exists in this case.  He should have been notified of his selection for promotion and apparently he was not.

2.  An HR representative confirmed the applicant was not notified of his selection for promotion.  However, the applicant was mandatorily retired on 31 May 2006 at 20 years of service under the sanctuary program before he could be promoted to the rank of COL.  

3.  It is reasonable to presume that had the applicant been notified of his selection for promotion, he would have withdrawn his voluntary retirement in order to accept the promotion and continue serving.

4.  Inasmuch as the circumstances in his case are unusual, it appears that unusual measures are required to ensure equity in his case in the least disruptive and simple manner.

5.  The 2004 selection board results were approved on 3 November 2004 and received Senate confirmation on 17 February 2005.  Accordingly, the applicant should be promoted to the rank of COL on 17 February 2005 as if he was occupying a COL position and a time in grade waiver should be granted in order for him to retire in the rank/grade of COL/O-6.

6.  Additionally, he should be paid all back pay and allowances that result from this action.

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 he met all eligibility criteria for promotion to the rank of COL (e.g. being in an active status and assigned to a COL position) effective 17 February 2005, and paying him all back pay and allowances that flow from this action;

	b.  showing that he was granted a waiver for time in grade requirements for promotion to COL in order to qualify for voluntary retirement; and

	c.  amending his retirement orders and DD Form 214 to show he was retired in the rank/grade of COL/O-6 on 31 May 2006 and that was transferred to the Retired List in the rank/grade of COL on 1 June 2006.



      ___________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)                                         AR20110004987



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ABCMR Record of Proceedings (cont)                                         AR20110004987



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