IN THE CASE OF:	  

		BOARD DATE:  19 April 2012

		DOCKET NUMBER:  AR20120005102 


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 reconsideration of his previous request for:

* back pay and allowances for lieutenant colonel (LTC) from 29 May 1998 to 27 March 2001 
* award of 48 inactive duty points and 15 active duty points per retirement year from 21 May 1999 to 27 March 2001
* promotion to the rank of colonel (COL) as a member of the Retired Reserve with a date of rank (DOR) of 26 October 2008
* back pay and allowances for COL from 26 October 2008 to 19 August 2012

2.  The applicant states:

	a.  An error on the part of the U.S. Army Reserve (USAR) forced him to retire as a MAJ effective 21 May 1999.  Therefore, he was wrongly denied the opportunity to earn LTC pay and 48 paid inactive duty points and 15 paid active duty points from 21 May 1999 to 27 March 2001.  He was sworn in as a chief warrant officer two (CW2) in the New York Army National Guard (NYARNG) on 28 March 2001.  He should be fully compensated for differential pay and allowances from 29 May 1998 to 27 March 2001 and he should be granted the points he was not able to earn due to no fault of his own.

	b.  On 2 November 2004, he was notified that he was promoted to LTC with a DOR of 29 May 1998.  He was considered in the primary zone for promotion to COL by the 2005 Reserve Component Selection Board (RCSB) which convened on 12 July 2005, a difference of only 8 months.  As he was serving as a CW2 in the NYARNG when he was notified of his promotion to LTC, when the board considered him for promotion to COL he did not have any Officer Evaluation Reports (OER) as a LTC in his records.  On 17 November 2005, he was notified of his nonselection.

	c.  He was again considered for promotion to COL by the 2006 RCSB which convened on 11 July 2006 and was notified on 24 October 2006 of his nonselection.  He believes he was nonselected for promotion by both boards due to the lack of rated time as a LTC and because he was precluded from enrolling in the U.S Army War College due to the USAR error.  The only way to right this injustice against him is to promote him to COL as a member of the Retired Reserve effective 26 October 2008, the date of his retirement.  In addition, he requests differential pay and allowances for the rank of COL from 26 October 2008 to 19 August 2012 for his service as a Retiree Recall.

4.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty
* ARPC (Army Reserve Personnel Command) Form 249-E (Chronological Statement of Retirement Points)
* six DA Forms 67-9 (OER)
* seven memoranda
* four orders
* NGB (National Guard Bureau) Form 89 (Proceedings of a Federal Recognition Examining Board)
* NGB Form 337 (Oaths of Office)
* DA Form 71 (Oath of Office - Military Personnel)
* an email
* a letter

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110021246, on 1 March 2012.   

2.  The applicant requests back pay and allowances for the rank of LTC from 29 May 1998 to 27 March 2001.  This issue was addressed on 1 March 2012 in ABCMR Docket Number AR20110021246.  The Board recommended his promotion memorandum, dated 13 January 2005, be amended to show he was promoted to LTC with an effective date and DOR of 29 May 1998 (vice 21 May 1999) and that he be paid any back pay and allowances due as a result of the correction.  Therefore, this portion of the applicant's request will not be discussed further in these Proceedings. 

3.  Having prior service in the U.S. Air Force, the applicant was appointed as a first lieutenant (1LT) in the New Jersey Army National Guard on 23 March 1982.  He was appointed as a 1LT in the USAR on 16 February 1983.  He was promoted to captain on 10 June 1983 and MAJ on 9 June 1990.

4.  He was considered but not selected for promotion to LTC by the Fiscal Year (FY) 1996, 1997, and 1998 Reserve Component Selection Boards (RCSB).

5.  Due to his nonselection for promotion to LTC, he was transferred from the 99th Regional Support Command (RSC) as a member of a troop program unit (TPU) to the Retired Reserve effective 1 June 1999.  

6.  He was sworn in as a CW2 in the NYARNG on 28 March 2001.

7.  The 99th RSC subsequently approved his request to revoke his Retired Reserve status and on 2 January 2005 the revocation and amendment orders were published assigning him to the Individual Ready Reserve (IRR) effective 1 June 1999.

8.  He was considered for promotion by the 2003 Special Selection Board (SSB) and he was recommended for promotion to LTC under the 1997 LTC Army Promotion List (APL) board criteria.  On 13 January 2005, a promotion memorandum was issued promoting him to LTC with a DOR of 21 May 1999 and an effective date for pay and allowances of 21 May 1999.  

9.  In pertinent part, his records contain the following:

	a.  DA Form 67-9, dated 20 December 2005, wherein he was rated as a LTC for the period 18 February through 1 December 2005, for his duties while serving in a LTC instructor position.

	b.  DA Form 67-9, dated 21 September 2006, wherein he was rated as a LTC for the period 2 December 2005 through 9 July 2006, for his duties while serving in a LTC media relation position.

	c.  DA Form 67-9, dated 11 May 2007, wherein he was rated as a LTC for the period 9 July 2006 through 2 February 2007, for his duties while serving in a LTC director of Army public affairs position.

10.  He was considered but not selected for promotion to COL by the 2005 and 2006 RCSB.  He was considered but not selected for promotion to COL by the 2007 SSB under the 2006 RCSB criteria.  None of the boards showed he was not selected for promotion due to non-completion of required civilian or military schooling.

11.  He was ultimately transferred to the Retired Reserve in the rank of LTC on 26 October 2008.

12.  He was recalled to active duty from a retired status and served on active duty in the rank of LTC as follows:

* 16 November 2008 - 1 April 2009
* 28 June 2009 - 27 June 2010
* 1 August 2010 - 31 July 2011

13.  On 12 August 2011, he was recalled to active duty from a retired status for a period of 365 days with a report date of 21 August 2011 and an end date of 19 August 2012.  He is assigned to the U.S. Army War College, Carlisle Barracks, PA, as a LTC.

14.  The applicant provides, in pertinent part:

	a.  ARPC Form 249-E, dated 26 August 2011, that shows he was not awarded any inactive duty or active duty points during retirement years ending (RYE) 21 May 2000 and 21 May 2001.  He was awarded 15 membership points for each of the RYE.

	b.  A letter, dated 30 June 2005, he sent to the COL 2005 RCSB wherein he addressed his lack of rated time as a LTC, his service as a CW2 in the NYARNG, and he provided numerous documents to update his records.

15.  Army Regulation 135-155 (Army National Guard and USAR Promotion of Commissioned Officers and Warrant Officer Other than General Officers) prescribes the policies and procedures for the promotion of Reserve Component officers.  SSBs are formed to prevent any injustice to an officer who was eligible for promotion but his records through error were not submitted to a promotion selection board or contained a material error when reviewed by the selection board.  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, that 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 civilian and/or military schooling.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be:

* awarded 48 inactive duty points and 15 active duty points per retirement year from 21 May 1999 to 27 March 2001
* promoted to COL as a member of the Retired Reserve with a DOR of 26 October 2008
* paid back pay and allowances for COL from 26 October 2008 to 19 August 2012

2.  The evidence of record shows the applicant was initially transferred to the Retired Reserve effective 1 June 1999.  On 28 March 2001, he was appointed as a CW2 in the NYARNG.  His Retired Reserve status was subsequently revoked and on 2 January 2005 he was assigned to the IRR effective 1 June 1999.  

3.  Based on this correction, he was correctly credited with 30 membership points for the time he was assigned to the IRR for the RYE 21 May 2000 and 21 May 2001.  He was not assigned to a TPU nor did he serve on active duty, so he did not earn inactive or active duty points during this period.  It is inappropriate to award points for service not performed.  Therefore, he is not entitled to the requested relief. 

4.  With respect to his request to be promoted to COL, he was considered but not selected for promotion to COL by the 2005 and 2006 RCSB.  The evidence of record shows he submitted information and documents to the 2005 RCSB that addressed any deficiencies he perceived in his records.  He also received three OERs while serving as a LTC.  At a minimum, one of these reports would have been considered by the 2006 RCSB.  

5.  There is no evidence that indicates a material error was made in his nonselection by the 2005 or 2006 RCSB, or that he was not selected for promotion due to a lack of required civilian or military education or a lack of rated time as a LTC.  However, he was again considered for promotion to COL by the 2007 SSB and he was again not selected for promotion.  At least two, if not all three of the OERs he received while serving as a LTC would have been considered by the 2007 SSB.  The reason for non-selection is speculative.  Given that he was not selected for promotion to COL by three promotion boards, relief in this case is inappropriate.
6.  With respect to his request to be paid back pay and allowances for COL from 26 October 2008 to 19 August 2012, he was not promoted to COL and was transferred to the Retired Reserve on 26 October 2008 in the rank of LTC.  Therefore, he is not entitled to 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 to amend the decision of the ABCMR set forth in Docket Number AR20110021246, dated 1 March 2012.



      __________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)                                         AR20120005102





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ABCMR Record of Proceedings (cont)                                         AR20120005102



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