IN THE CASE OF:

		BOARD DATE:	   16 February 2012

		DOCKET NUMBER:  AR20110018591 


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 he be accessed into the Regular Army (RA) as a major (MAJ) under the Call to Active Duty (CAD) Program. 

2.  The applicant states:

	a.  His CAD Program application was unjustly returned without action after it had been accepted and referred for presidential nomination and senate confirmation.  Orders were published that appointed him as a MAJ in the RA and vacated his Reserve commission.  He requests accession into the RA consistent with his appointment orders.

	b.  By accepting his application the Army Human Resources Command (HRC) implicitly granted waivers of the eligibility criteria for the Fiscal Year 2011 (FY 11) CAD Program.  There are no subsequent communications that rescind or amend his nomination, confirmation, or appointment as a MAJ in the RA.  HRC’s response to his request for an exception to policy did not actually address his contentions.   

3.  The applicant provides in support of this application:

   a.  a chronology of events;
   
b.  his CAD Program application package;
   
   
c.  two pages of the 28 February 2011 Congressional Record;
   
   d.  HRC Orders 14-1-A-020, dated 3 March 2011, announcing his appointment as a MAJ in the RA;
   
   e.  several emails between the applicant and G____  M. D____, HRC's CAD Program Manager; and 
   
   f.  documents in support of an exception to policy for the CAD Program, including a:
   
   	(1)  favorable endorsement on the applicant's request by the Director, Defense Threat Reduction Agency; 
   
   	(2)  favorable endorsement from the Chief, Regional Engagement Division, Defense Threat Reduction Agency;
   
   	(3)  favorable endorsement from a senior civilian [GS-15] at the Basic and Applied Science Directorate, Defense Threat Reduction Agency, who stated that he was the applicant's most recent rater and he considered the applicant "one of the key driving forces in furthering…control of WMD and systems in Africa"; and
   
   	(4)  response from HRC pointing out that the applicant did not meet the rank restrictions and he was not needed because his functional area was significantly overstrength. 

CONSIDERATION OF EVIDENCE:

1.  The applicant, a U.S. Army Reserve (USAR) MAJ who had been previously nonselected for promotion to lieutenant colonel (LTC), submitted an application for the CAD Program on 6 November 2010.  Paragraph 5 of his request states
"I understand that I require a waiver for the date of rank (DOR) requirement as outlined in Paragraph 5.B."

2.  He was promoted to LTC with an effective date and DOR of 3 January 2011.

3.  HRC Orders 14-1-A-020, dated 3 March 2011, announced the applicant's appointment as an RA MAJ, effective 3 March 2011.  Any Reserve component appointment as a commissioned officer was vacated.

4.  On 10 March 2011, his CAD Program application was returned without action by a memorandum from the Chief, Reserve Appointments and Accessions Branch, HRC.  The memorandum states the CAD Program was closed to LTCs and officers in the zone for consideration by promotion boards convening within 
6 months of the receipt of the individual's application for the CAD Program.

5.  In the processing of his case, an advisory opinion was obtained from the Chief Reserve Appointments and Accessions Branch, HRC.  The advisory official stated that the decision to disapprove the applicant's CAD Program application was based on a review of his original application that indicated he had already been boarded for LTC and was well beyond the eligibility window.  The CAD Program guidance specifically states that officers in the rank of LTC are not eligible.  

6.  The advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 1 December 2011, he responded by stating that:

	a.  HRC's explanation was unresponsive to his request and inconsistent with their actions;

	b.  the explanation in the advisory opinion cites the same eligibility criteria that HRC waived, either explicitly or implicitly.  HRC waived the ineligibility criteria when it accepted his application and referred him for presidential nomination.  After he was nominated, HRC vacated his Reserve commission and appointed him a MAJ in the RA;

	c.  he specifically requested a waiver of the DOR eligibility requirement;

	d.  HRC waived the ineligibility requirements when it accepted his application. because, after acknowledging his promotion status, the HRC Assignments Officer forwarded his application to the Pentagon where he was referred for presidential nomination for appointment as a MAJ in the RA and subsequently confirmed by the senate;

	e.  HRC published appointment orders appointing him as a MAJ in the RA and posted them in his Official Military Personnel File (OMPF).  Those orders have not been amended or rescinded; and

	f.  HRC has not overturned his RA appointment and cannot do so without due process.  They had an ample opportunity to correct or request correction of the orders.  Instead, HRC advised him to ignore their orders.


7.  Military Personnel (MILPER) Message 10-199, Subject:  FY11 CAD Regular Army Program for Selected Reserve Component Officers provided updated policy and implementation guidance for the program.  The MILPER message states that officers applying for active duty through the CAD Program will have to be approved for RA appointment prior to coming into the RA.  The message also states in:

	a.  paragraph 3b:  This program is closed to LTCs;

	b.  paragraph 6c:  Ineligibility Criteria:  Officers who have been non-selected for promotion to the next higher grade; and 

	c.  paragraph 6d:  Ineligibility Criteria:  In the zone of consideration for a Reserve component promotion board convening within 6 months of the application's receipt by HRC.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be accessed into the RA in the rank of MAJ.  His application was unjustly returned without action after having been accepted and referred for presidential nomination and senate confirmation. 

2.  The MILPER Message announcing the FY11 CAD Program states that LTCs, officers who have been non-selected for promotion, and those within 6 months of a promotion zone were not ineligible.  

3.  The applicant had previously been nonselected for promotion; he was boarded and selected for promotion to LTC within 6 months of the receipt of his application by HRC; and he had been promoted to LTC in the USAR.  

4.  There is no evidence that HRC waived his disqualifications.  They apparently overlooked his inconspicuous request for a waiver of the DOR requirement. 

5.  Upon review of his application, HRC identified him as ineligible for the CAD Program and returned his application, in effect, voiding his accession as an RA MAJ.

6.  His request for an exception to policy apparently offered no new argument or evidence in support of his case except for favorable endorsements by several high level officials; however, none of them addressed his specific disqualifications. 

7.  In view of the foregoing, there is no basis for granting the applicant's 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.



      _______ _  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)                                         AR20090008576



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110018591



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1