IN THE CASE OF:	  

		BOARD DATE:	  12 April 2012

		DOCKET NUMBER:  AR20110011719 


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, in effect, retroactive promotion to lieutenant colonel (LTC/O-5) and colonel (COL/O-6) in the Army National Guard (ARNG). 

2.  The applicant states:

	a.  The Alabama ARNG (ALARNG) erroneously transferred him to the U.S. Army Reserve (USAR) Control Group (Retired Reserve) instead of the Individual Ready Reserve (IRR) like he requested.  This action resulted in essentially ending his military career and cancelling his confirmed promotion to LTC in 1992 and subsequent promotion to COL had he been in the IRR.  He qualified for COL through his continued development, advancement and extensive practice as a Comprehensive Restorative end Cosmetic Dentist and post-doctorate education and civilian education throughout this entire period, along with his extensive military education and training.

	b.  In late 1992, after 22 years of continuous/devoted service to the ALARNG and Army, he was forced to take a break in service to begin paying back a huge debt he incurred from setting up his private practice for Comprehensive Restorative and Cosmetic Dentistry.  Because of the post-war (Desert Shield/Desert Storm) recession, his bank was very aggressive about him doing this, or "ruin him financially."  He was directed by the ALARNG to submit forms that were to place him in the IRR, and thus be able to focus on building his private practice and paying back his debt.  He had also been advised in the early part of 1992 that he was being promoted to LTC during that same period and that was confirmed when the Alabama State Military Headquarters put him in the 650th Medical Detachment Commander's slot to finalize his promotion to LTC.  He proceeded with his transfer to the IRR with the feeling that his promotion to LTC was already finalized based on positive feed-back that supported his belief.  In his mind, he continued his Army service in the IRR from that point forward.  He did inquire about returning to a Reserve status in the late 1990s, but he was told the number of dental slots had been cut with the ongoing cuts in the force strength that was going on at that time.

	c.  Approximately 2 years ago, COL KN, Medical Corps (MC), U.S. Army Reserve Command (USARC) Surgeon, called him at the request of Brigadier General (BG) LC (who had been a patient of his) to recruit his return to the USAR to support their large dental mission and assist in reducing the large number of Dental Class 3 and Class 4 Soldiers.  He agreed to return at that time and a process to bring him "back-in" from the IRR began.  This process stalled because the U.S. Army Human Resources Command (USAHRC), St. Louis could not locate his records.  Then in the summer of 2010, COL MPM, the Group Surgeon, 20th Social Forces Group (SFG) (Airborne) learned that he was trying to return to the USAR/ARNG, and he contacted him when he learned he had served as the Group Medical Service Officer from 1979 to 1982 and then as the Dental Surgeon for the 20th SFG from 1982 to 1986.  He and COL RMZ, the 20th SFG Commander, stated they needed him to rejoin the 20th SFG to support and reduce the large Dental Class 3 numbers of Soldiers and that they needed a dentist from the Birmingham area.  So, the process to bring him back to the
20th SFG began with much support and earnest.

	d.  It was during 2010 that he discovered the ALARNG had erroneously transferred him to the Retired Reserve and not the IRR in 1992, and that he and his military career had been essentially ended or killed off as a result of being placed in the Retired Reserve.  He had subsequently been working diligently to undo/correct this huge mistake from 1992.  He first transferred back to the IRR and then to the ALARNG, effective 4 November 2010, and now has been assigned to the 20th SFG Dental Surgeons Slot, effective 1 January 2011.  Major General (MG) PGS, The Adjutant General (TAG), and COL CJM, the J-I/ Director of Personnel are now directing the process to totally correct the mistakes made in 1992 by the ALARNG and have his initial placement in the Retired Reserve reversed to the IRR (and dated 1992).  As well, they have his LTC promotion dated to the correct date in 1992-93.  Then, with that correction made, his subsequent promotion to COL would have occurred in the IRR and now be awarded.  His promotion to COL is further supported by his active practice and continued development, advancement and extensive practice as a Comprehensive Restorative and Cosmetic Dentist and post-doctorate schools, courses, and "CE" study, which he has done throughout this entire period.

3.  The applicant provides:

* Civilian/College Diplomas and Certificates
* Military Diplomas and Certificates
* Professional Curriculum Vitae/Biographical Summary with post-doctorate schools and civilian education
* Letter of support from MG PGS, ALARNG TAG
* Letter of support from COL CJM, J-1/Director of Personnel
* Letter of support from COL RMZ, Commander, 20th SFG
* Letter of support from COL MPM, 20th SFG Group Surgeon
* Letter of support from BG DED, former Group Commander

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 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 was born on 28 June 1952.  Having prior enlisted service, he was appointed as a second lieutenant in the Medical Service Corps of the ALARNG and he executed an oath of office on 31 October 1979.

3.  He was assigned the primary designation of dental officer and he was initially assigned to the 20th SFG, ALARNG.  He served in a variety of stateside or overseas assignments, including Panama and Bolivia, and he was promoted to captain (CPT) on 22 November 1983 and major (MAJ) on 3 February 1988.

4.  His DA Form 2-1 (Personnel Qualification Record) shows he was attached to the 650th Medical Detachment in January 1985 and he was permanently transferred to that detachment by official orders in November 1989 where he was assigned as a general dental officer.

5.  On 17 December 1990, the ALARNG issued the applicant a memorandum, subject:  Notification of Eligibility for Retired pay at Age 60 (20-year letter).  This letter notified him that he had completed the required years of service and he would eligible for retired pay on application at age 60.
6.  Official orders transferring him to the Retired Reserve are not available in his records.  However, his service records contain a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) that shows he was honorably discharged from the ARNG and transferred to the USAR Control Group (Retired Reserve) on 30 June 1992, in accordance with National Guard Regulation 635-100 (Termination of Appointment and Withdrawal of Federal Recognition) and TAG Orders 213-041, paragraph 5a(7), dated 31 July 1992.  His NGB Form 22 shows he completed 22 years of total service for pay.

7.  After nearly 18 years break in service, the applicant was reappointed in the ALARNG in the rank of MAJ and he executed an oath of office on 4 November 2010.  His DA Form 5074-1-R (Record of Award of Entry Grade Credit (Health Services Officer)) shows his entry grade as "MAJ’ with a date of rank of 7 June 2006.

8.  He was promoted by the ALARNG to LTC effective 17 November 2011 and he was extended Federal recognition by NGB Special Orders Number 49 AR, dated 13 February 2012, with an effective date and date of rank of 9 February 2012.

9.  He submitted:

	a.  A memorandum, dated 16 May 2011, from TAG, ALARNG, who states he fully supports the applicant’s reentry into the ARNG.  He adds that the applicant contends he was mistakenly placed in the Retired Reserve vice the IRR and therefore did not appear before any mandatory boards for promotion consideration.  TAG adds that he does not have the authority to correct this wrong and therefore he recommended the applicant seek assistance through the ABCMR.

	b.  A memorandum, dated 3 May 2011, from COL CJM, the ALARNG Military Personnel Officer who states the applicant was separated in 1992 and placed in the Retired Reserve.  He asked to be transferred to the IRR and the Military Personnel Office mistakenly placed him in the Retired Reserve.  He adds that he has researched the inactive records on file here in Montgomery, AL, and could not find his original request.  Therefore, he can only determine his intent was to transfer to the IRR.  Since this mistake occurred 19 years ego and there are no records, he encouraged the applicant to apply to the ABCMR to correct this mistake.  Had the applicant remained in the IRR, his records would have appeared before the scheduled Department of the Army Promotion Board.

	c.  A memorandum, dated 9 September 2010, from COL RMZ, Commander, 20th SFG, ALARNG, who states the applicant is a former member of the
20th SFG who is willing and able to return to this vacant position at their request. His recall from the Retired Reserve will allow the 20th SFG to address critical problems in dental readiness and training as well as provide the group with a superb clinician who can lead civil military operations in the areas of collaborative medical and dental engagements.  He will not require any other training since he is fully qualified.

	d.  A memorandum, dated 9 September 2010, from the 20th SFG current Group Surgeon who states the applicant formerly served as the 20th SFG Dental Surgeon in the ALARNG until he transferred to the IRR.  He was then administratively transferred to the Retired Reserve.  He is seeking to return to the 20th SFG to resume his previous service at their behest.  He is in private dental practice in Alabama and continues to serve the military through TRICARE Dental and other programs.  The applicant is fully qualified to fill a vacancy in the Group.

	e.  A letter, dated 21 October 2010, from BG DED, the applicant’s former commander who states he is writing in support of the applicant’s request to return to active service in the ALARNG with assignment to the 20th SFG.  He adds the applicant previously served in the Medical Platoon, Service Company, 20th SFG from 1979 to 1981 during which he (the author) was assigned as Group Medical Platoon Leader and later Group Surgeon.  From 1988 to "1993," the applicant was assigned to the 650th Dental Detachment, subordinate to the 127th Medical Group which he commanded.  He always held the applicant in high regard and admired him so much that he chose him as his personal dentist.

10.  In the processing of this case, on 9 March 2012, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB, who recommended disapproval of the applicant’s request.  The advisory official stated:

	a.  The applicant contends that although he had requested to be transferred to the IRR in 1992, the ALARNG erroneously transferred him to the Retired Reserve, resulting in the end of his military career.  He further contends that by doing so, he was denied promotion to LTC and subsequent promotion to COL.

	b.  Based on the available evidence provided by the applicant and the ALARNG, it does not appear that his separation was incorrectly processed at the time in question.  As stated in an email from the ALARNG, dated 12 August 2011, "[Applicant] was discharged 19 years ago and we could not find the documentation for his request.  Due to this fact, we cannot confirm or disprove his claim of requesting the IRR instead of the Retired Reserve."  Army Regulation 15-185 (ABCMR), paragraph 2-9 states, "The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence." To that end, he has not provided a copy of the letter or any documentation requesting transfer to the IRR at the time of his retirement.

	c.  He was issued an NGB Form 22 that clearly shows in block 9 that he was transferred to the USAR Control Group (Retired Reserve) effective 30 June 1992.  Army Regulation 15-185, paragraph 2-4 states "Applicants must file an application within 3 years after an alleged error or injustice is discovered or reasonably should have been discovered.  The ABCMR may deny an untimely application.  The ABCMR may excuse untimely filing in the interest of justice."

	d. Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers), paragraph 7-3.1(b) states "an officer (other than a commissioned warrant officer) or enlisted Soldier who has accrued 20 years of qualifying service for retired pay is required to attain 50 points annually to be retained in an active status in the Selected Reserve, IRR, or Standby Reserve (Active List).  An officer (other than a commissioned warrant officer) or enlisted Soldier, who fails to attain 50 points by the anniversary of his or her retirement year ending date, will be removed from the active status.

	e.  It seems apparent from the 19-year gap in service that the applicant did not intend to continue serving and would not have been able to meet these requirements for continued service and/or promotion.  It is this requirement that often times results in a complete discharge from the military service.  Unless explicitly requesting transfer to the USAR Control Group (Reinforcement), Soldiers will be sent to the Retired Reserve so they do not lose their military affiliation, which provides for benefits and entitlements for themselves and their family members while in the "Gray Area" awaiting age 60.

	f.  ALARNG Order Number 39-63, dated 29 February 1988, shows the applicant was promoted to MAJ with an effective date of 3 February 1988.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officer Other Than General Officers), paragraph 2-15, indicates the earliest (unit vacancy) the applicant would have been eligible for promotion to LTC would have been 3 February 1992.  He was discharged from the ALARNG prior to reaching his maximum time in grade of 3 February 1995.  He has implied that he was selected for promotion to LTC prior to being discharged; however, he has not provided evidence to that effect.

	g.  A review of his Official Personnel Military File (OMPF) does not show documentation to support this statement.  In consultation with the Department of the Army Board Section, they do not maintain records (electronic or hard copies) for the timeframe in question.  Subsequent to his reentry in the ARNG, Special Order Number 49 AR, dated 13 February 2012, promoted him to LTC effective
9 February 2012.  He will be eligible for promotion to COL on 15 June 2015.

	h.  NGB Special Orders Number 164 AR, dated 20 July 2011, shows the applicant was appointed as a MAJ into the ALARNG, effective 8 November 2010, with a date of rank of 7 June 2006.  Upon coordination with the NGB Surgeon General's office, that office states the applicant was given more than ample constructive credit for his prior time in grade as a MAJ when initially accessed. He was not eligible for appointment at any higher grade for his civilian work experience.  The calculations reflecting the constructive credit allotted to the applicant upon his initial appointment to the ALARNG on 8 November 2010 is reflected on the approved DA Form 5074-1-R.

11.  On 12 March 2012, a copy of the advisory opinion was furnished to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 22 March 2012, in his rebuttal, the applicant stated:

	a.  As stated in the advisory opinion, "the ABCMR begins its consideration of each case with the presumption of administrative regularity."  That statement would suggest that the Army and/or the ALARNG has not or could not be in error nor make the mistake(s) causing an administrative or personnel error, omission, or loss of a Soldiers records.  That is what has in fact happened in this case.  The ALARNG has stated that all of his personnel files and records were transferred to USAHRC, St. Louis.  USAHRC has stated that they have no records and that they were most likely destroyed in a flood there in the 1990's which resulted in the total loss of his records and files.

	b.  The advisory opinion also states that an officer or enlisted Soldier who has accrued 20 years of qualifying service for retired pay is required to attain 50 points annually to be retained in an active status in the Selective Reserve, IRR, or Standby Reserve (Active).  An officer or enlisted Soldier, who fails to attain 50 points by the anniversary of his or her retirement year ending date, will be removed from the active status."  He spoke with several S-1 personnel recently and in the past but he found none who are aware of or even know about this specific requirement.  He had been advised that medical officers who worked actively in a private practice (which he has done full time for this entire period in question, and in fact since 1982) and who did their military assigned job/specialty were qualified for the IRR.

	c.  In 1992, he was put in the Commander's slot of the 650th Medical Detachment to finalize his promotion to LTC.  His promotion packet had already been sent and he was told the promotion had been approved and finalized.  As he stated in his original document that he sent to the ABCMR requesting this corrective action, he had to leave active Guard status and requested to go to the IRR so he could keep from "going under financially" because of the huge debt he had incurred for going into private practice.  Had his promotion not been finalized by the time he entered the IRR, then according to the above-stated requirement that the author in the advisory opinion stated, he would have had a year for his promotion to be finalized and awarded before he was removed from the IRR active status.

12.  Army Regulation 140-10 prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers.

	a.  Chapter 6 (Transfer to and from the Retired Reserve) of Army Regulation 140-10, paragraph 6-1 (Criteria for Transfer), states assignment to the Retired Reserve is authorized for various reasons.  Eligible Soldiers must request transfer if they have completed a total of 20 years of active or inactive service in the U.S. armed forces.  The transfer must be voluntary based on the Soldier’s request.

	b.  Chapter 7 (Removal from Active Status) states that Soldiers removed from an active status will be discharged or transferred to the Retired Reserve (with certain exceptions that do not apply to the applicant).  Transfer to the Retired Reserve is authorized when requested by Soldiers who are eligible.  This policy applies only to unit Soldiers who have completed 20 years of qualifying service for retired pay.  Soldiers who do not request transfer to the Retired Reserve or discharge will be assigned to the IRR.

	c.  Paragraph 7-3 (1)(b) states that an officer (other than a commissioned warrant officer) who has accrued 20 years of qualifying service for retired pay is required to attain 50 points annually to be retained in an active status in the Selected Reserve, IRR, or Standby Reserve (Active List).  An officer (other than a commissioned warrant officer) or enlisted Soldier, who fails to attain 50 points by the anniversary of his or her retirement year ending date, will be removed from the active status.

13.  Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve Component officers.  Table 2-1 provides for the time-in-grade requirements for promotion of commissioned officers.  It states that for promotion from MAJ to LTC, the minimum number of years in the lower grade is 4 years and the maximum number of years in the lower grade is 7 years.  

14.  National Guard Regulation 635-100 (Personnel Separations – Termination of Appointment and Withdrawal of Federal Recognition) establishes the standards, policies and procedures governing the separation of commissioned officers of the ARNG.  Paragraph 5a prescribes the various reasons for termination of State appointment.

15.  National Guard Regulation 600-100 (Commissioned Officers, Federal Recognition and Related Personnel Actions) provides procedures for processing applications for Federal recognition and related personnel actions.  Chapter 8 provides for promotion of officers other than general officers.

	a.  Paragraph 8-1 states promotion in the ARNG is a function of the State.  As in original appointments, a commissioned officer promoted by State authorities has a State status in the higher grade under which to function.  However, to be extended Federal recognition in the higher grade, the officer must have satisfied the requirement for promotion.

	b.  Paragraph 8-7 states to be considered for Federal recognition and subsequent Reserve of the Army promotion following State promotion to fill a unit vacancy, an officer must be in an active status, be medically fit, meet the height and weight standards, have completed the minimum years of promotion service, have completed the minimum civilian and military education, and have passed the physical fitness test.

	c.  Paragraph 8-8 states a commissioned officer must complete the minimum years of service prior to being considered for promotion and Federal recognition in the higher grade.  The minimum number of years in the lower grade for promotion from MAJ to LTC is 4 years and from LTC to COL is 3 years.

	d.  Paragraph 8-14 states ARNG officers will be mandatorily considered for promotion as a Reserve commissioned officer of the Army when they meet minimum promotion service requirements prescribed for the zone of consideration.  The provisions of Army Regulation 135-155 apply.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant was appointed as a commissioned officer in the ALARNG on 31 October 1979.  He was promoted to MAJ on 3 February 1988.  He was honorably discharged from the ARNG and transferred to the Retired Reserve on 30 June 1992.

2.  In the absence of evidence to the contrary, the applicant’s transfer to the Retired Reserve would have been a voluntary request on behalf of the applicant. There is no evidence of record and he provides none to show he requested a transfer to the IRR and that he was denied such move.  His NGB Form 22 clearly shows he was transferred to the Retired Reserve.  Even if this was an error, not only did he fail to address this issue at the time but he also failed to exercise due diligence for nearly 19 years.

3.  The applicant could not have been selected for promotion to LTC by a mandatory board as he was ineligible for consideration until he completed a minimum of 7 years in the lower grade.  Based on his date of rank as a MAJ of
3 February 1988, the earliest he could have been considered for LTC by a mandatory board would have been 3 February 1995.  He was transferred to the Retired Reserve some 3 years earlier.

4.  It is possible he was considered for promotion to LTC by a vacancy board.  However, in the absence of a recommendation for promotion, a State promotion order, Federal recognition order, and his failure to address his "missing" promotion orders in a timely manner, there is no evidence to support such promotion.

5.  The applicant’s academic and professional qualifications are not in question.  However, he failed to provide any evidence to support his contention.  The statements of support he provides reflect a strong support for him to reenter military service; however, none provides evidence of the alleged error or injustice.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting his 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.



      _________XXX___________
               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)                                         AR20110011719



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ABCMR Record of Proceedings (cont)                                         AR20110011719



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