IN THE CASE OF:	  

		BOARD DATE:  25 OCTOBER 2012

		DOCKET NUMBER:  AR20120004642 


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:

The applicant defers his request, statement, and evidence to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's record to:

* Replace his Officer Evaluation Report (OER) for the period 23 March 2001 through 22 March 2002 (hereinafter referred to as contested OER 1a) with a finalized OER for the period 23 March 2001 through 11 October 2001 (hereinafter referred to as contested OER 1b)
* Set aside his OER for the period 23 March 2002 through 22 March 2003 (hereinafter referred to as contested OER 2) 
* Set aside his OER for the period 23 March 2003 through 22 March 2004 (hereinafter referred to as contested OER 3) 
* Insert a non-prejudicial statement from the Army Board for Correction of Military Records (ABCMR) in place of the removed OERs stating the  OERs were removed and the period is considered nonrated time through no fault of the rated officer
* Set aside his (first and only) non-selection for promotion to colonel (COL)/O-6
* Set aside his non-selection for continuation past 20 years of Active Federal Service (AFS)


* Order reconsideration for Active Guard Reserve (AGR) extension beyond 20 years
* Order reconsideration for promotion to COL/O-6 by a Special Selection Board (SSB)
* If promoted to COL/O-6 or extended on AFS award back pay and allowances

2.  Counsel states the Department of Veterans Affairs (VA) records and rating decisions show no record of mental illness which discredits the 2002 command referral for mental health exam for paranoia, malingering, asthma, and unstable, disruptive behavior.  The 22 March 2002 referral was a reprisal which damaged the applicant's reputation at the unit and influenced his next two OERs.  His rater and senior rater stated that he was unable to establish a positive collegial atmosphere among his staff and his senior rater wrote he was unable to gain the respect and cooperation of subordinates.

3.  The mental health referral on 22 March 2002 was an immediate reprisal for his testimony in an Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation that began on 28 February 2002.  His testimony, on 6 March 2002, to the investigating officer (IO) supported a racial discrimination claim by Sergeant First Class (SFC) H-----l against the unit S3, Chief Warrant Officer Two (CW2) C-x.  The applicant supervised both individuals.  The mental health referral distorts the issues by inferring the applicant "demonstrated increasing paranoia that CW2 [C-x] was conspiring to discredit him."

4.  From 2006 - 2008, the applicant repeatedly requested, under the Freedom of Information Act (FOIA), copies of the final action on the AR 15-6 investigation, 2003 Equal Opportunity (EO) complaint, and the December 2003 Inspector General (IG) complaint to U.S. Army Reserve Command (USARC).  The applicant's 6 March 2002 testimony to the AR 15-6 IO later supported the EO claim by SFC H-----l against the unit's S3, CW2 C-x.  In December 2002, the applicant filed an IG complaint with the USARC IG.  All three complaints/investigations related to command reprisals against the applicant affecting contested OERs 2 and 3.  After making the FOIA request, the applicant only received the AR 15-6 investigation and his testimony, but no final action.  He did not receive the EO complaint and final action of his subordinate SFC H-----l, nor did he receive the final action for his December 2003 IG complaint to USARC.



5.  In September 2003, he filed a commander's inquiry (CI) relating directly to improprieties with contested OER 1a, ending in 2002, which related indirectly to contested OERs 2 and 3.  In 2005, the Commanding General, Lieutenant General (LTG) H----y, issued his findings.  In summary, contested OER 1a was voided and a new OER was issued with a different rating period and senior rater. 
LTG H----y in turn directed corresponding changes to contested OERs 2 and 3.  The applicant tried, unsuccessfully, to internally implement the findings of the CI and filed the new OER ending on 2002 and the changes to contested OERS 2 and 3.

6.  In 2004, he was given notice of his non-selection for promotion to COL and non-selection for continuation of AFS past 20 years which resulted in his involuntary retirement on 1 June 2004.

7.  Counsel provides:

* Counsel's statement of the case
* Note, dated 14 May 2005
* Contested OER 1b
* Email, dated 28 January 2005
* Memorandum, dated 16 December 2004
* Email, dated 26 February 2004
* Email, dated 15 October 2003
* Memorandum, dated 15 October 2003
* Memorandum, dated 10 September 2003
* OER ending on 24 May 2000
* OER ending on 22 March 2001
* Contested OER 2
* Contested OER 3
* Email, dated 9 April 2002
* Two undated notes
* Memorandum, dated 26 March 2002
* Two memoranda, dated 6 April 2002
* Memorandum, dated 28 February 2002
* Sworn statement, dated 6 March 2002
* Letter, dated 23 December 2003
* CW2 C--x's OER, ending on 15 December 2002
* CW2 C--x's OER, ending on 1 February 2004 
* DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 31 May 2004


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 appointed as an Army Reserve commissioned officer on 
31 July 1981 and ordered to active duty in an AGR status on 28 August 1988.  He continued to serve in various AGR assignments throughout the duration of his career and was promoted to the rank/grade of lieutenant colonel (LTC)/O-5 on     8 May 2000.

3.  Counsel provided a memorandum, issued by the North Central Information Operations Center (NCIOC), Moon Township, PA, on 28 February 2002, wherein 
LTC L---z, the unit commander, appointed LTC H--e as the IO in charge of an 
AR 15-6 informal investigation.  The memorandum directed LTC H--e to conduct an informal investigation to determine if a pattern or specific acts of discrimination existed or occurred in the professional relationship between 
CW2 C--x and SFC H-----l and if SFC H-----l's late return from a temporary duty (TDY) trip was appropriate or avoidable.

4.  Counsel provided a sworn statement, dated 6 March 2002, wherein the IO interviewed the applicant as part of the AR 15-6 investigation and he stated, in effect, it was possible that CW2 C-x treated SFC H-----l differently because he was a white Soldier; however, he was split, and could not decide whether he thought CW2 C-x's actions towards or treatment of SFC H-----l were racially motivated; however, he admitted he felt it was possible.  He also indicated CW2 C-x seemed to be more lenient with African-American Soldiers.  He also stated SFC H-----l was pursuing an EO complaint against CW2 C-x.

5.  Counsel provided a memorandum, dated 26 March 2002, issued by
LTC L---z, the unit commander, to the applicant , Subject:  Request for Psychiatric Evaluation, wherein LTC L---z states:


An AGR soldier under my command has demonstrated increasing paranoia in that he is convinced that the S-3, Senior Warrant Officer, and a detachment commander are conspiring to discredit him.  He has stated this numerous times and it has become an obsession with him.  As the Commander I have not been able to discern any conspiracy.

The individual refuses to fly because he is convinced he will have an asthma attack on an airplane and die.

The individual is consistently abrasive in both written and oral correspondence to subordinates and peers.  He has lost the ability to lead except by coercion and this is severely impacting the good order and discipline of the unit.

Subject is a LTC, 46 years of age, with a stable family life complicated by the severe illnesses of two young children.

I am concerned that unless he receives professional assistance he will eventually suffer from mental illness.  It is my belief that the individual will refuse to voluntarily seek treatment out of a perceived fear of damaging his career.  Request your concurrence on a command directed evaluation.

In justice to the individual, he currently does not constitute a threat to himself or others.

6.  On 26 March 2002, LTC L---z notified the applicant he was being command referred for a mental health evaluation and informed him of his rights, notified him an appointment had been scheduled for him, and included the names of the medical professionals with whom the command had consulted.  He acknowledged receipt of notification on 7 April 2002.

7.  Counsel provided an email, dated 9 April 2002, which the applicant sent to 
COL M------a and LTC D---n, his commanders, wherein he responded to the command referred mental evaluation.  He stated he received LTC L---z's memorandum, dated 6 April 2002, notifying him of a mental health evaluation scheduled for 12 April 2002, at the Walter Reed Behavioral Health Clinic.  He disagreed with LTC L---z's description of his alleged behavioral problems which resulted in the referral.  He further stated when he had informally discussed this 



memorandum with the addressee, the addressee indicated his appearance at Walter Reed was purely voluntary on his part and he had no obligation to submit to the evaluation in question.  Therefore, he respectfully declined to appear at the scheduled evaluation.

8.  Counsel provided a memorandum, dated 10 September 2003, wherein he requested a CI on his OER for the period 23 March 2001 through 22 March 2002 (contested OER 1a) and requested a waiver to the 120-day rule because he was not given a copy of his completed OER until 485 days after the through date.  He stated his OER contained substantive and procedural deficiencies.

* His unit failed to timely provide him with a completed copy of his OER, one year after the through date
* His rating chain changed in the middle of the rating period, he was not notified, and the rating chain was never published
* He believes the signature of his senior rater was forged

9.  Counsel provided a memorandum, dated 15 October 2003, issued by the Legal Assistance Attorney, Headquarters, 99th Regional Readiness Command (RRC), Coraopolis, PA, who stated:

	a.  The memorandum was a confirmation of an earlier conversation between the legal assistance attorney and the applicant regarding contested OER 1a. The applicant's commanding officer, LTC D---n, had informed him that COL M------a had ordered him to return the original OER.  She said the applicant was seeking legal advice concerning whether or not it would be appropriate to comply with the order at the present time.

	b.  She stated there was a pending CI regarding contested OER 1a and the evaluation may be subjected to an appeal.  Additionally, there may be an IG investigation concerning the evaluation and various matters related to contested OER 1a.

	c.  There are many concerns about contested OER 1a, including, but not limited to, the authenticity of one or more signatures on the report.  The original copy of contested OER 1a may be a crucial piece of evidence in any further government investigation.

	d.  The ethics counselor for the Office of the Staff Judge Advocate, the person best qualified to respond to the applicant's questions, was TDY.  The legal assistance attorney recommended that he keep his original copy of contested OER 1a until the ethics counselor returned and could further advise him.  

10.  Counsel provided a letter the applicant addressed to the IG, dated 
23 December 2003, wherein he stated he had several grievances which he had unsuccessfully attempted to resolve with his commanding officers, LTC D---n and COL M------a.  Although the applicant was about to retire, he felt there were several things he should say to set the record straight.  It was his opinion that LTC D---n and COL M------a systematically harbored an environment of deceit, intimidation, unprofessional behavior, and had acted arbitrarily and capriciously on a number of occasions.  Their conduct had a negative effect on the Army and the Soldiers in the command, including himself, and created a hostile work environment.  The items applicable to the applicant's case are listed below.

	a.  At the start of the rating period for contested OER 1a his rater was 
COL M------a and his senior rater was COL P----o.  At the end of the rating period, his senior rater was changed to Major General (MG) R--d.  He was not notified of the change until he received contested OER 1a on or about 31 May 2003.  Additionally, the rating chain was not properly published.

	b.  Part II, item c (Signature) of contested OER 1a contains a signature which purported to be the signature of MG R--d.  However, as part of his official duties, he looked at other OERs and documents containing MG R--d's signature.  When compared, the signature on contested OER 1a did not appear to match other signatures rendered by MG R--d 

11.  He provided a memorandum, dated 16 December 2004, wherein LTG H----y stated he had completed his CI regarding contested OER 1a and concluded that the OER did not comply with Army Regulation 635-105 (Officer Evaluation Reporting System).

	a.  On 23 March 2001, then LTC M------a became commander of the Army Reserve Information Operations Coordination Center (RIOCC) vice COL P----o.  On 12 October 2001, COL L---z replaced the applicant as the acting commander of NCIOC, with COL M------a as the applicant's rater.  Therefore, contested 
OER 1a (23 March 2001 to 22 March 2002) should be destroyed and a change of duty (CDY) OER should be rendered for the period 23 March 2001 to 11 October 2001 (contested OER 1b), as required by Army Regulation 635-105.

	b.  The RIOCC was placed in a carrier status on receipt of the unit organization orders published on 13 June 2000.  The RIOCC was authorized to remain in a carrier status on the official command transfer from the 99th Regional Readiness Command (RRC) to the U.S. Army Reserve Information Operations 


Command (RIOC) on transfer to the USARRC.  Major General (MG) (then Brigadier General (BG)) W----n, (former) Commander, USARRC, had sufficient time in position as the applicant's senior rater to render a senior rater evaluation as of 11 October 2001, as he only needed 60 days in position to senior rate Active Guard and Reserve officers.  LTG H----y advised both MG 
W----n and COL M------a of this matter.  A copy of LTG H----y's memorandum was enclosed for the applicant's reference.  This memorandum further advised the applicant to prepare a new DA Form 67-9-1 (OER Support Form) for the correct rating period to be considered by the rating officials.

	c.  The last evaluation processed by the Evaluations Support Branch,
U. S. Army Human Resources Command (HRC), St. Louis, MO, ended on 
22 March 2001.  An OER for the period 23 March 2002 to 22 March 2003 (contested OER 2) was rejected by HRC because the applicant's record was missing the previous OER.  Once the CDY OER was properly rendered, the next rating period would then be for the period 12 October 2001 to 11 October 2002 with COL M------a as the rater, and MG R--d as the senior rater. 

12.  Counsel provided an OER for the period 23 September 1999 through 
24 May 2000.  This OER shows the applicant was rated by his rater as "Outstanding Performance, Must Promote" and by his senior rater as "Best Qualified" and "Above Center of Mass."  This OER is present in the applicant's military record.

13.  Counsel provided an OER for the period 25 May 2000 through 22 March 2001.  This OER shows the applicant was rated by his rater as "Outstanding Performance, Must Promote" and by his senior rater as "Best Qualified" and "Center of Mass."  This OER is present in the applicant's military record.

14.  Counsel provided an OER for the period 23 March 2001 through 22 March 2002 (contested OER 1a).  This OER shows the applicant's rater, COL 
M------a, rated him rater as "Outstanding Performance, Must Promote" and by his senior rater, MG R--d, as "Best Qualified" and "Center of Mass."  During this rating period he was serving as the acting commander.  This OER is not present in the applicant's military record. 

15.  Counsel provided an OER for the period 23 March 2001 through 11 October 2001 (contested OER 1b).  This OER shows the applicant's rater, COL 
M------a, rated him as "Outstanding Performance, Must Promote."  His senior rater, BG W----n, indicated he had been unable to evaluate the applicant because he had not been his senior rater for the required number of days.  This OER is not present in the applicant's military record. 

16.  Counsel provided an OER for the period 23 March 2002 through 22 March 2003, (contested OER 2).  This OER shows the applicant's rater, LTC D---n, rated him as "Satisfactory Performance, Promote" and by his senior rater, COL M------a, as "Fully Qualified" and "Center of Mass."  This OER is not present in the applicant's military record. 

	a.  His rater wrote, “ [Applicant] has had difficulty managing, motivating, and accurately evaluating the strengths of two members of the NCIOC full-time staff, both of whom are excellent soldiers.  He has not been able to establish a positive, collegial atmosphere among the staff, and has had difficulty organizing staff efforts and communications and summarizing and communicating key issues to me…applicant could best serve as a staff officer with guidance and supervision by a fellow full-timer."

	b.  His senior rater wrote, "…There have been a number of issues relating to his responsiveness to his commander, and gaining the respect and cooperation of those he supervises.  Concur with rater that, with appropriate full time supervision applicant can continue to contribute with the unique experiences in the field of information operations and assurance…"

17.  Counsel provided an OER for the period 23 March 2003 through 22 March 2004, (contested OER 3).  This OER shows the applicant's rater, LTC D---n, rated him as "Satisfactory Performance, Promote" and by his senior rater, COL M------a, assessed him as "Fully Qualified" and "Center of Mass."  This OER is in the applicant's military record. 

	a.  His rater wrote, "…[Applicant] has continued to have difficulty in effectively leading and organizing the efforts of the NCIOC staff, and in summarizing and communicating key issues to me.  [Applicant] could best serve as a staff officer with guidance and supervision by a fellow full-timer."

	b.  His senior rater wrote, "…[Applicant] has continued to have difficulty in effectively leading and organizing within his unit, where he serves as the senior full time staff.  His potential for leadership positions is limited by problems with communicating and supporting command guidance and directives…[Applicant’s] primary areas should be focused staff work, where he might excel."

18.  Counsel provided a copy of CW2 C-x's OER for the period 11 May 2003 through 1 January 2004.  This OER does not pertain specifically to the applicant's requested relief and is considered personal information; therefore, it will not be discussed further in this case.

19.  His record contains a memorandum issued by HRC, St. Louis, MO, on       27 August 2003, regarding the 2003 AFS Extension Board.  The memorandum stated he had not been selected for extension on active duty in the AGR Program beyond his retirement or removal date. 

20.  His record contains a request for voluntary retirement, dated 24 November 2003, which contains his signature.

21.  His record contains retirement Orders Number P-03-490078, issued by HRC, St. Louis, MO, on 22 March 2004.  These orders list his effective date of retirement as 31 May 2004.

22.  He was honorably retired on 31 May 2004.  His DD Form 214 shows he was retired in the grade of LTC with an effective date of pay grade of 8 May 2000.  

23.  According to the HRC website, promotions branch:

	a.  The zone of consideration for the 2003 COL Promotion Board which convened on or about 8 July-8 Aug 2003 viewed LTCs with a date of rank of 
31 March 2000 and earlier.

	b.  The zone of consideration for the 2004 COL Promotion Board which convened on or about 13 July-6 Aug 2004 viewed LTCs with a primary date of rank of 31 March 2001 and earlier.

24.  Paragraph 6-10 of AR 623-105 contained guidance on the burden of proof and type of evidence necessary to support the submission of an OER appeal.  It stated, in effect, that the burden of proof rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that established clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and that action was warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

25.  AR 623-105, in effect at the time, prescribed the officer evaluation function of the military personnel system and provided principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support the officer evaluation system.  It also provided guidance regarding redress programs including CI and appeals.  Paragraph 3-57 of this regulation 


provided the basic rule applicable to modifications of previously-submitted reports.  It stated, in pertinent part, that an evaluation report accepted by HQDA, and included in the official record of an officer was presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  It also stated that requests that a report that has been accepted for filing in an officer's record be altered, withdrawn, or replaced with another report will not be honored.  Exceptions were only authorized when information that was unknown or unverified was brought to light or verified and the information was so significant that it would have resulted in a higher or lower evaluation had it been known or verified when the report was prepared.

26.  AR 600–8–24 (Officer Transfers and Discharges), paragraph 2–25 (Rules for Processing Involuntary Release from Active Duty Due to Nonselection of Active Guard Reserve Continuation), states an AGR officer on an initial period of duty will be separated from active duty (AD) 90 calendar days after notification of continuation board action of nonselection (AR 135–18 (The AGR Program),  paragraph 4–6) or at the end of the initial period of duty, whichever is later, unless earlier release is requested by the officer.  An AGR officer on a subsequent period of duty who is not recommended for continuation will be released from AD 90 calendar days after notification of continuation board action unless earlier release is requested by the officer.  For AGR officers who are not recommended for continuation, Chief, National Guard Bureau; Chief, Army Reserve; and State adjutants general are authorized to order release from active duty (REFRAD) under this section.  The authority may not be further delegated.  

27.  AR 600–8–24, paragraph 6-14c(1) states a Regular Army (RA) or USAR commissioned officer with 20 years AFS (of which 10 years is active commissioned service) may on his or her request and the approval of Secretary of the Army be retired (10 USC 3911). 

28.  AR 135–18, paragraph 4-7 (Extension on AD or Full-Time National Guard Duty (FTNGD) beyond 20 years Active Service (AS)), states AGR officers will be released from AD (serving under Title 10 U.S. Code (USC)) when they have attained 20 years of AS, according to the policies prescribed in AR 600-8-24 (Title 10 USC) unless approved for extension.  AGR commissioned officers and warrant officers may be retained on AD beyond 20 years of AS through a board process, convened at least annually.  Consideration of eligible officers for retention is automatic.  


29.  AR 140-30 (AD in Support of the USAR and AGR Management Program), paragraph 9–8 (Retention of soldiers past 20 years of AFS) states the Chief, Army Reserve, may authorize, subject to Secretary of the Army approval, an officer to be extended at his or her request in increments of 2 years or less beyond 20 years AFS.  The extension will be based on the needs of the Service for the particular experience and qualifications of the Soldier.  Retention will be with the officer’s consent.  

30.  AR 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the USAR.  This regulation specifies that promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error which existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's non-selection by a promotion board and, had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required military schooling.   

31.  Paragraph 3-19 also lists the following factors that will normally result in a material error determination; e.g., an officer is removed from a selection list after the next selection board considering the officers of his or her grade recesses.  If eligible, this person will be considered by the next regularly scheduled selection board.  An SSB will not be used when an administrative error was immaterial, or the officer in exercising reasonable diligence could have discovered and corrected the error or omission in the official military personnel file.

DISCUSSION AND CONCLUSIONS:

1.  A CI regarding contested OER 1a (23 March 2001 through 22 March 2002) was conducted, wherein LTG H----y found contested OER 1a was not in compliance with Army regulations and directed it be replaced by contested OER 1b (23 March 2001 through 11 October 2001).  However, neither OER is currently present in his military record; therefore, contested OER 1b should be added to his military record.

2.  Contested OER 2 (23 March 2002 to 22 March 2003) is not present in his military record because it was rejected by HRC.  This OER was provided by the applicant, and is not present in his military record.  It is impossible to verify the authenticity of this OER.  Additionally, placing this OER in his military record would result in nonrated time from 12 October 2001 through 22 March 2002.  Therefore, a non-prejudicial statement of nonrated time for the period 
12 October 2001 through 22 March 2003 should be added to his military record.

3.  Counsel requests that contested OER 3 (23 March 2003 through 22 March 2004) be set aside and a non-prejudicial statement from the ABCMR be inserted into the applicant's record is not supported for the following reasons:

	a.  OERs accepted by HRC are presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  Counsel has not provided sufficient evidence to show the rating chain was improper, or that the judgments and opinions rendered by the rating officials were not objective.

	b.  OERs previously accepted for filing in an officer's record will not be altered, withdrawn, or replaced unless information that was unknown was brought to light or and the information was so significant that it would have resulted in a higher or lower evaluation.  Counsel has not provided any new or unknown information which would alter the block rating of this OER.

	c.  Counsel has not produced sufficient evidence to clearly and convincingly establish a material error, inaccuracy, or injustice occurred which would necessitate correction, removal or replacement of contested OER 3.  

4.  Counsel has provided no evidence to show a material error occurred which resulted in the applicant's non-selection for AFS continuation beyond 20 years.  There is no administrative error to correct; therefore, no action will be taken to overturn the original AFS Extension Board's decision. 

5.  Counsel stated the applicant was forced to retire; however, evidence shows the applicant submitted a voluntary request for retirement rather than attempting to transfer to a Troop Program Unit or the Individual Ready Reserve.  Therefore, the argument that he was forced to retire is invalid.

6.  The evidence of record shows the applicant submitted a request for voluntary retirement in November of 2003 and his request was approved in March of 2004. He was removed from the Reserve Active Status List prior to the convening of the 2004 COL Promotion Board in July 2004, the only COL promotion board to which he was eligible for consideration.  As a result he was never considered for promotion to COL.  SSBs are convened to reconsider officers for promotion when an error or injustice occurred which caused them to be ineligible to participate in a promotion board, be non-selected for promotion, or removed from the promotion standing list after consideration.  Since there was no error or injustice which prevented his non-consideration for promotion there is no valid reason to submit his records for review by an SSB.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ____X __  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* adding the OER for the period 23 March 2001 through 11 October 2001 to his military record
* adding a non-prejudicial statement of nonrated time for the period 
12 October 2001 through 22 March 2003 to his military record

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to:

* Replacing his OER for the periods 23 March 2002 to 22 March 2003 and 23 March 2003 through 22 March 2004 with non-prejudicial statements
* Overturning the AFS Extension Board's decision to retain him beyond 
20 years 
* Submitting his records to an SSB for promotion to COL



      _______ _   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)                                         AR20120004642





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ABCMR Record of Proceedings (cont)                                         AR20120004642



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