IN THE CASE OF:	  

		BOARD DATE:	  17 July 2012

		DOCKET NUMBER:  AR20110023630 


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 honorable discharge from the U.S. Army Reserve (USAR) be revoked and he be reinstated into the USAR. 

2.  The applicant states: 

	a.  he was discharged from the Army while deployed in Afghanistan.  The reason stated by the Human Resources Command (HRC) was that he was educationally deficient for promotion to lieutenant colonel (LTC) and was twice nonselected.  Though this is in accordance with Army Regulation 135-175 (Separation of Officers), the lack of effective communications by HRC with his chain of command or himself and the fact he was engaged in critical training missions in the war effort makes this decision hasty and unjust.

	b.  HRC did not effectively communicate with him, his home unit, Task Force Scorpion or, in Afghanistan, his North Atlantic Treaty Organization chain of command concerning his pending discharge due to nonselection back in January 2010.  While he prepared to comply with his deployment orders, family readiness, two SRPs (Soldier Readiness Processing) in New Jersey and New York as S3 of his Battalion, and his wife's Continental United States mobilization, he was not informed.  He acknowledges he should have known his board dates but lost awareness due to mission priorities.  Had he not received deployment orders he would have completed the required Intermediate Leader's Education (ILE) phases for selection as he was enrolled and making good progress.

	c.  Reserve officers are challenged with handling civilian concerns as well as the performance of duty in service to the nation; throughout this they deal with layoffs, family concerns, and try to balance these with their duty to the Army and nation as they have chosen this as a matter of devotion and citizenship.

	d.  he served in the Connecticut Army National Guard, Florida Army National Guard, attended Florida Officer Candidate School, and in the Individual Ready Reserve and Reserves for 26 years.  After 11 September 2001 he was called to active duty for a period of 1 year.  After that tour he was assigned to U.S. Central Command (CENTCOM) as an Individual Mobilization Augmentee (IMA) and then later internally transferred to a Troop Program Unit.  After trying to reach his CENTCOM chain of command with no success he decided to wait to be notified by someone concerning training and assemblies, and missions.  This never happened.  During this period (approximately 5 years), even though his duty to the Army was not forgotten, he focused on his family and financial security and he was passed over for promotion to LTC the first time.    

	e.  As the work situation allowed he began to look for a Reserve unit where he could be of service.  He found a unit in Orlando and he applied for the S3 position in August 2010 and enrolled in the required ILE.
 
	f.  According to HRC he was passed over for promotion a second time in January 2011 due to not having completed an online course (ILE) that was required for promotion and would be discharged from the Army on 1 August.  Neither he nor his chain of command was informed he was not deployable due to this issue.  He did receive orders to train-up for deployment and orders to deploy and he complied with all orders.

	g.  he was mobilized for approximately 2 months for pre-deployment training to Fort Dix, NJ in March 2011.  He was then deployed to Afghanistan in May 2011.  Sometime in August he became suspicious that there was something wrong with his Common Access Card.  It indicated his clearance had been revoked.  While on a mission to a nearby Forward Operating Base in September 2011 he was informed he had been discharged from the Army as of 
1 August 2011.  He was ordered to redeploy and be discharged again no later than 10 September 2011.

	h.  he was not discharged from the Army for lack of physical or mental fitness, capabilities or failure to obey orders.  The reason he was given by HRC for not being selected to LTC was that of not being educationally qualified for promotion (ILE not being fully complete).  Prior to deployment and as the S3 for his unit, he enrolled in the ILE course and was making progress.  Had he not been selected and ordered to deploy he would have completed the minimum educational requirements (ILE) for promotion to LTC.  Had the training division been notified of his situation he would have not been selected for deployment and he feels he could have finished the minimum requirements for promotion to LTC.        

	i.  in the process of doing his duty and service to country and complying with pre-deployment and later, deployment orders it became impossible for him to spend the time required in order to complete the required ILE remote learning courses necessary to be considered for LTC promotion.

	j.  the lack of information from anyone concerning his promotion board dates, and considering his deployment, was what prompted him to ask for an extension to the deadline of the course.  This extension was granted as they considered his deployment situation.

	k.  he was not informed but should have been aware of the LTC board dates.  He lost awareness due to his military duty, mission focus and personal circumstances.  HRC did not effectively communicate with him or his various chains of command that he was not deployable, even after 2 record reviews and possibly more prior to deployment.

	l.  he was not negligent with his Army career.  He would have completed his promotion educational requirements in order to stay with the Army until his mandatory retirement date.  He feels he and his wife have been wronged after so much personal sacrifice was made in order to be of service to his country during a time of war.

3.  The applicant provides:

* DA Form 1559 (Inspector General Action Request)
* Memoranda
* Orders
* Discharge orders 
* Email traffic
* Officer Evaluation Report covering the period 17 March 2011 through 
      7 September 2011

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the Army National Guard, the applicant was appointed a second lieutenant in the Army National Guard on 12 August 1989.  He transferred to the USAR on 1 October 1995 in the rank of first lieutenant.  He was promoted to major effective 9 August 2003.

2.  Records indicate he was twice considered (in 2009 and 2010), but nonselected for promotion to LTC. 

3.  He was ordered to active duty on 17 March 2011 in support of Operation Enduring Freedom.  He served in Afghanistan from 24 May 2011 to 8 September 2011.

4.  He was honorably discharged from the USAR on 30 September 2011.

5.  He was released from active duty on 25 October 2011.

6.  Records show he completed 10 qualifying years for retired pay. 

7.  In the processing of this case an advisory opinion was obtained from the Chief, Personnel Management Division, U.S. Army Reserve Command, Fort Bragg, NC.  The opinion states:

	a.  the applicant was nonselected for promotion the first time by the Fiscal Year (FY) 2009 Lieutenant Colonel APL Reserve Component Promotion Selection Board Non-AGR (Active Guard Reserve) Board.  The reason for nonselection was he was not military education qualified.

	b.  He was nonselected for promotion the second time by the FY 2010 LTC APL Reserve Component Promotion Selection Board Non-AGR Board.  The board did not provide a specific reason for nonselection which means he was determined educationally qualified by that board.

	c.  U.S. Code, Title 10, Section 14506, states Army Reserve officers in the grade of major who have failed 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 on the later of the first day of the month after the officer completes 20 years of commissioned service or the first day of the seventh month after the month in which the President approves the report, unless the officer is retained under another provision of law.  Retention is authorized for Soldiers selected for Selective Continuation or those who have at least 18 but less than 20 qualifying years for retired pay at age 60 (Reserve Sanctuary).

	d.  the applicant was not selectively continued.  Additionally, he had only completed 10 qualifying years for retired pay, which made him ineligible for Reserve Sanctuary.  Since there were no other provisions of law to authorize his retention, he was discharged, in accordance with Army Regulation 135-175, paragraph 4-4a(5)(b) and U.S. Code Title 10, section 14506, for nonselection for promotion after second consideration

   e.  the statute and regulation governing this action do not authorize retention under the reasons cited by the applicant.     

	f.  that office recommends disapproval of the applicant's reinstatement or revocation of discharge.

8.  On 1 February 2012, the advisory opinion was furnished to the applicant for comment.  He did not respond within the given time frame.

9.  The Army's centralized officer promotion selection system is governed by procedures based on statute (Title 10, U.S. Code) and policy established by the Secretary of the Army and the Deputy Chief of Staff for Personnel.  

	a.  The basic concept of the promotion selection system is to select for promotion those officers who have demonstrated that they possess the professional and moral qualifications, integrity, physical fitness, and ability required to successfully perform the duties expected of an officer in the next higher grade.  Promotion is not intended to be a reward for long, honorable service in the present grade, but is based on overall demonstrated performance and potential abilities.

	b.  Promotion selection is conducted fairly and equitably by boards composed of mature, experienced, senior officers.  Each board consists of different members, and women and minority members are routinely appointed.  A typical board is presided over by a general officer and consists of 18-21 officers in a grade senior to that of those being considered for promotion.  The board membership reviews the entire performance portion of the official record of every officer being considered for promotion.  Selection boards recommend those officers who, in the collective judgment of the board, are the best qualified for promotion. 

	c.  Congressional and budgetary constraints dictate the number which may be selected for promotion to each grade.  Each board considers all officers eligible for promotion consideration, but it may only select a number within established selection constraints.  The Secretary of the Army, in his Memorandum of Instruction, establishes limits on the number of officers to be selected.  The selection process is extremely competitive based on the "whole officer" concept.  Inevitably, some officers considered for promotion will not be selected; there are always more outstanding officers who are fully qualified to perform duty at the next higher grade, but who are not selected because of selection capability restrictions.

	d.  By law, promotion selection boards are not authorized to divulge the reasons for selection or nonselection of any officer, thus specific reasons for the board's recommendations are not known.  Some reasons for nonselection are readily apparent, as when an officer has not completed educational requirements.  In other cases, a nonselected officer can only conclude that a promotion selection board determined that his or her overall record, when compared with the records of contemporaries in the zone of consideration, did not reflect as high a potential as those selected for promotion.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests:

* his discharge be revoked
* he be reinstated in the USAR
* he be allowed to serve to his maximum release date (MRD)

2.  The applicant argues the Army's operational tempo (OPTEMPO) precluded his ability to track important career milestones and requirements.  He lost track of promotion board dates and, because of the OPTEMPO, was unable to complete his educational requirement for promotion.

3.  The advisory opinion provided by the Chief, Personnel Management Division, U.S. Army Reserve Command, Fort Bragg clearly pointed out:

* he was nonselected for promotion to LTC the first time in 2009 because he was not military educationally qualified
* no reason was given for his nonselection for promotion to LTC the second time in 2010 which means he was, at that time, determined educationally qualified
* he was not eligible for Reserve Sanctuary since he only completed 10 qualifying years for retired pay. 

4.  The applicant, as his own best career manager, had an obligation to manage his career in a manner to ensure he met all administrative requirements for promotion to the next higher grade.  He did not do so, and when he first was considered for promotion to LTC, he did not have the necessary and required educational level.  When he was nonselected the second time, no reason was provided, thus it can only be presumed the promotion selection board determined that his overall record, when compared with the records of his contemporaries, did not reflect as high a potential as those selected for promotion.

5.  Evidence shows he was discharged from the USAR on 30 September 2011 for nonselection for promotion to LTC after second consideration in accordance with the governing law.  Therefore, there is insufficient evidence on which to grant the 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)                                         AR20110023630





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ABCMR Record of Proceedings (cont)                                         AR20110023630



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