BOARD DATE:	  13 March 2012

		DOCKET NUMBER:  AR20110021178 


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 his records go before a Special Selection Board (SSB) for promotion consideration to lieutenant colonel (LTC).

2.  The applicant states prior to his retirement in July 2000, he did not receive the proper retirement counseling.  This led to him making a life-altering poor decision based on a lack of information regarding his promotion eligibility, high year tenure group, and his leadership and assignment potential.  He requests the chance to be considered by an LTC promotion selection board since the opportunity was denied him by a lack of proper out-processing counseling [at the time of his retirement].  At no time during the process did any official, commander, or counselor explain to him that he would be meeting an LTC promotion board in approximately 1 year.  This resulted in undue and avoidable harm to him and his career.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 July 2000.

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.  Having had prior service in the Regular Army and the U.S. Air Force, the applicant was appointed as a U.S. Army Reserve (USAR) Medical Corps (MC) major (MAJ).  He entered active duty on 12 August 1996.

3.  He was honorably retired from active duty on 31 July 2000 in the rank of MAJ and placed on the Retired List on 1 August 2000.  The DD Form 214 he received for this period of service shows he completed 3 years, 11 months, and 19 days of net active service during this period of service; and he had 16 years, 1 month, and 28 days of total prior active service, for a total of 20 years, 1 month, and 17 days of total creditable active service.

4.  On 8 November 2002, he reentered active duty as a volunteer recall from the Retired List.  He was honorably released from active duty on 7 November 2005.

5.  On 14 April 2008, he again reentered active duty as a volunteer recall from the Retired List with a scheduled release from active duty date of 13 April 2012.

6.  In the processing of this case, on 20 December 2011, an advisory opinion was obtained from the Chief, Promotions, U.S. Army Human Resources Command (HRC).  The advisory official recommended denial of the applicant's request for his records to go before an SSB for promotion consideration to LTC and opined the following:

	a.  The applicant was considered for promotion by the Fiscal Year 2000, LTC, MC, promotion selection board below the zone but he was not selected for promotion.  He elected to separate from the service on 31 July 2000 after achieving sufficient time for retirement; therefore, he was ineligible for promotion consideration for future promotion selection boards.

	b.  Each military personnel message for a promotion board establishes clear guidance and instructions related to officers with approved separation dates and other eligibility criteria prior to the convene date of the board.  Separations or actions completed outside the established limits of the instructions are not cause for reconsideration.

	c.  In addition, the applicant completed a DD Form 2648 (Preseparation Counseling Checklist), dated 3 May 2000, wherein he indicated he (and his spouse) did not desire counseling on any services or benefits that were available on the checklist as part of his Individual Transition Plan prior to separation.

7.  A response to the advisory opinion was received from the applicant on 1 February 2012.  He stated:

	a.  The HRC opinion was made in the setting of today's Army with the free and easy information flow afforded by Army Knowledge Online.  Today Soldiers are made aware of all pertinent points and requirements regarding promotion and assignments on a timely basis, but this was not the case in 2000.  The DD Form 2648 does not have a heading related to promotion and continued service opportunities.  Furthermore, the informal information he was given was on the "high three" rather than the final retirement system.

	b.  He received no counseling from his immediate or senior commanders regarding his exit or possible continuation of his military career.  Each Soldier receives an exit interview with the commander prior to making a final decision but he did not receive an exit interview or counseling.

8.  Army Regulation 600-8-29 (Officer Promotions) prescribes the policies and procedures for promotion of active duty officers.  Paragraph 7-2 of the regulation states SSBs may be convened under Title 10, U.S. Code, section 628, to consider or reconsider commissioned officers for promotion when Headquarters, Department of the Army discovers an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error.

9.  Army Regulation 600-8-29, paragraph 7-11, states officers who discover that material error existed in their file at the time they were non-selected for promotion may request reconsideration through HRC.  Reconsideration will normally not be granted when the error is minor or when the officer, by exercising reasonable care, could have detected and corrected the error.  To determine if there is an error in the promotion file, the officer may request a copy of his/her file.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should go before an SSB for promotion consideration to LTC because he did not receive the proper promotion and retirement counseling from any official, commander, or counselor during a
pre-separation briefing.


2.  The applicant was a MAJ with over 20 years of active duty and even in 2000 there were many resources available to him to help him weigh the pros and cons of retirement.  The decision whether to retire and when is a personal decision made by each Soldier when he/she achieves sufficient service for retirement.  It is unrealistic to believe that if he had received promotion counseling in May 2000 or an exit briefing from his commander he would not have retired in July 2000.  In addition, he had been considered for promotion below the zone by the Fiscal Year 2000 promotion board.  Any reasonably diligent officer would have known he would have been considered for promotion again the following year.  However, even if his contention that he did not receive counseling at that time was true, it does not constitute a material error.

3.  The evidence of record shows he submitted a request for voluntary retirement after achieving sufficient service for retirement.  There was no administrative or material error that caused him to not be considered for promotion by a regularly-scheduled promotion board.  Rather, once his voluntary retirement was approved, he was no longer eligible for promotion consideration by a selection board.

4.  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.



      __________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)                                         AR20110021178



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ABCMR Record of Proceedings (cont)                                         AR20110021178



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