BOARD DATE:	  24 January 2012

		DOCKET NUMBER:  AR20110006270 


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 the rank/grade of lieutenant colonel (LTC)/O-5 and retirement in that rank.

2.  The applicant states the Army was unsuccessful in conducting his promotion processes and it required review by special selection boards (SSBs).  He goes on to state he was selected by an SSB for promotion to LTC, but he retired on
1 February 2010 before the promotion orders could be published.  He was subsequently notified that because he had retired he could not be promoted.

3.  The applicant provides copies of emails from officials at the Human Resources Command (HRC) notifying him he had been selected for promotion but he could not be promoted because he had retired.  They also advised him to apply to this Board.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned and ordered to active duty as a second lieutenant on 22 February 1989.  He was promoted to the rank of captain in the Regular Army on 1 June 1993.

2.  On 15 January 2001 he was honorably discharged due to non-selection for permanent promotion.  He had served 11 years, 10 months, and 24 days of active service.  He accepted a Reserve appointment and he was assigned to 


the U.S. Army Reserve (USAR) Control Group (Individual Ready Reserve).  He was promoted to the rank of major (MAJ) on 20 August 2002.

3.  On 4 January 2005, he was ordered to active duty in support of Operation Enduring Freedom.  On 23 April 2009, a memorandum was dispatched to the applicant informing him he had been selected by an SSB for promotion to major, effective 27 June 2001.  He served until 3 May 2008 when he was honorably released from active duty (REFRAD) due to completion of required service.  He had completed 3 years and 4 months of active service this period.

4.  On 4 May 2008, he was again ordered to active duty in the rank of major to obtain 20 years of active Federal service under the extended active duty sanctuary program.  His orders directed he remain on the Reserve Active Status List (RASL).

5.  On 31 January 2010, he was honorably REFRAD and he was transferred to the Retired List in the rank of MAJ effective 1 February 2010.  He had served 20 years and 5 days of active service.

6.  On 14 July 2010, the applicant was advised by officials at HRC that he had been selected for promotion to LTC by an SSB; however, because he was retired and he was no longer in an active status (on the RASL), he could not be promoted.  He was advised to apply to this Board.

7.  During the processing of this case, officials at HRC, Fort Knox, KY advised a staff member of the Board that the applicant would have been promoted to the rank of LTC on 21 December 2007 if he was in an LTC position and 26 June 2008 if he was in a MAJ’s position.

8.  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).

9.  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).  In essence, there is no "approved" recommendation in the applicant’s case.

10.  Title 10, U.S. Code, 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.

11.  Title 10, U.S. Code, 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 7th 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.

12.  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 MAJ, 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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been noted and appear to have merit.  He should have been considered for promotion and apparently was not, as evidenced by the fact that two separate SSBs considered him for promotion and recommended him for promotion to the ranks of MAJ and LTC.

2.  However, the applicant was mandatorily retired on 31 January 2010 at 20 years of service under the sanctuary program before he could be promoted to the rank of LTC.

3.  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.

4.  Accordingly, the applicant’s records should be corrected to show he was promoted to the rank of LTC on 21 December 2007 as if he was occupying an LTC position and that 1 year in grade was be waived in order for him to be retired in the rank of LTC.

5.  Additionally, he should be paid all back pay and allowances due as a 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 LTC (e.g. being in an active status and assigned to an LTC position) effective 21 December 2007, and paying him all back pay and allowances that flow from this action;

	b.  Showing he was granted a 1-year waiver of the time in grade requirements for promotion to LTC in order to qualify for voluntary retirement; and

	c.  Amending his retirement orders and associated documents (DD Form 214, etc) to show he was retired in the rank of LTC on 31 January 2010, with a date of rank of 21 December 2007, and he was transferred to the Retired List in the rank of LTC on 1 February 2010.



      _________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)                                         AR20110006270



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ABCMR Record of Proceedings (cont)                                         AR20110006270



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