BOARD DATE:	  24 January 2013

		DOCKET NUMBER:  AR20120013134 


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:

* Revocation of the orders that honorably discharged him from the U.S. Army Reserve (USAR) effective 1 August 2012
* Reinstatement to the Selected Continuation (SELCON) list 
* Transfer to the USAR Control Group (Reinforcement or Individual Ready Reserve)
* Extension of his mandatory removal date (MRD) by 5 years from the date of return to the Ready Reserve

2.  The applicant states:

* He is a Special Agent/GS-14 (now Senior Executive Service) with the Federal Bureau of Investigation (FBI) and has been designated a Key Federal Employee since May 2010
* Despite being twice not selected for promotion to lieutenant colonel (LTC), he was provided positive written notifications, on two occasions, that he was SELCON (continued service on the Reserve Active Status List (RASL) in March 2011, approved by the Secretary of the Army (SA)
* Regardless whether a computer glitch or an administrative error led to the erroneous SELCON notification, he relied on the accuracy and truth of Army officials
* He had no reason to question the written notification from Army officials that he was selected for continuation service 
* He made life-altering decisions that affected his civilian employment with the FBI based on the affirmative statement that he was SELCON
* He even fought his civilian employer to return to the Ready Reserve, mobilize, and serve on active duty in Afghanistan with the 10th Mountain Division
* He made personal sacrifices, forfeited promotion opportunities that impacted his life and employment
* The Army expects officers to abide by orders and he expects the Army to do the same; he honored his agreement by volunteering, reporting, and deploying; the Army should honor his SELCON
* Official at the U.S. Army Human Resources Command (HRC) and at the 10th Mountain Division all believed he was SELCON
* The reason for his non-selection for promotion are unique in that he was relegated to the Standby Reserve for much of the past decade due to his employment status
* Despite his tireless efforts in obtaining the necessary education, he continued to serve when other told him to resign his commission
* He believes in light of his unique civilian position and his demonstrated success, he can still contribute effectively and greatly to the Army mission
* He is willing to serve additional active duty tours should the Board grant him relief

3.  The applicant provides:

* Orders 12-131-00001 (USAR discharge orders)
* SELCON notification memorandum, dated 2 March 2011
* Selected entries from his Army Visual Screening Portal 
* Orders A-07-019680 (mobilization orders)
* Email exchange with various officials
* Orders C-05-006998 (Assignment to the IRR)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 67-9 (Officer Evaluation Report)
* Optio2009 Major (MAJ) Army promotion List (APL) SELCON Board
* Options Memorandum Upon Non-Selection for Promotion After Second Consideration

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 2 July 1968.

2.  Having had prior enlisted service, the applicant was appointed, at 24 years of age, as a Reserve commissioned officer and executed an oath of office on 30 January 1992.  

3.  He served on active duty as a Military Intelligence (MI) officer in a variety of assignments.  He was honorably released from active duty on 7 September 1997 and he was transferred to the USAR Control Group (Reinforcement).  

4.  Between November 1997 and August 1999, he served in various troop program units (TPU) of the USAR.  He was promoted to MAJ on 31 January 2003.

5.  On 17 March 2003, the U.S. Army Reserve Personnel Command, St, Louis (now HRC) published Orders C-03-308086 releasing him from the USAR Control Group (Reinforcement) and reassigning him to the Standby Reserve (Active List) by reason of "Key Employee." 

6.  He was considered by the 2008, 2009, and 2010 Reserve Components Selection Boards(RCSBs) for promotion to LTC but he was not selected.  

7.  On 10 May 2010, HRC published Orders C-05-006998 releasing him from the Standby reserve (Active List) and reassigning him to the USAR Control Group (Reinforcement) by reason of "Voluntary" transfer.  

8.  He was ordered to active duty on 3 August 2010 and subsequently served in Afghanistan from 17 October 2010 to 9 June 2011.  He was honorably released from active duty (REFRAD) on 2 August 2011.  

9.  He received a REFRAD OER for the rating period 3 August 2010 through 5 June 2011 that shows an "Outstanding Performance – Must Promote," "Best Qualified," and "Center of Mass" ratings.  He was also awarded the Meritorious Service Medal for service with the 416th Theater Engineer Command. 

10.  On 2 March 2011, by memorandum, signed by the Chief, Leader Development Division, HRC, he was notified that he was considered for promotion to LTC by the 2011 RCSB but he was not selected.  However, the SELCON board recommended him for continuation in his present grade and the SA Army approved that recommendation.  The memorandum further states:

Unless you specifically decline continuation, you will be continued until you have completed 24 years of commissioned service if you are a Major or 20 years of commissioned service as a captain, which is the maximum years of service allowed under the provisions of the law guiding this retention.  Future Promotion Selection Boards (PSBs) will consider you as long as you remain eligible for consideration.  If you decline Selective Continuation, complete the form on the reverse and return it in the enclosed envelope to this Command.  The law requires that you be separated from the Army Reserve no later than the first day of the seventh month the PSB report was approved unless certain items apply to you.  

11.  On 18 October 2011, HRC published Orders C-10-114353 releasing him from the USAR Control Group (Reinforcement) and reassigning him to the 416th Engineer Command, IL, by reason of "Voluntary." 

12.  On 20 November 2011, he completed an Election of Option – Military Service Obligation and indicated he desired a transfer to a Selected Reserve unit.  He also stated he was already assigned to a troop program unit.  

13.  He received an annual for the rating period 6 June 2011 through 5 June 2012 that shows an "Outstanding Performance – Must Promote," "Best Qualified," and "Center of Mass" ratings.

14.  On 2 March 2012, by memorandum, Subject: Options Upon Non-Selection for Promotion After Second Consideration, an official at the 88th Regional Support Command, Fort McCoy, WI notified the applicant that Reserve officers who are not selected for promotion on their second consideration must be separated not later than the seventh month following the President's approval of the board results unless they:

* Are a captain or major and have a remaining service obligation
* Are eligible for and request for reassignment to the Retired Reserve
* Have been credited with 18 but less than 20 years of service for retired pay purposes

He was further notified that he was considered twice for promotion but he was not selected.  He was given a suspense date of 2 March 2012 to make an election and if his election is not timely received he would be transferred to the Retired Reserve (if eligible) or honorably discharged. 

15.  On 10 May 2012, HRC published Orders 12-131-00001 honorably discharging him from the USAR effective 1 August 2012 by reason of being a two-time non-selection for promotion to LTC.  

16.  An advisory opinion was obtained from the Office of Personnel management Division, HRC, on 4 October 2012.  An official recommended disapproval of the applicant's request.  The official stated:

	a.  Title 10, U.S. Code, section 14506 states Army Reserve officers in the grade of MAJ 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 be separated on the later of the first day of the seventh 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 of the board which considered the officer for the second time, unless the officer is retained under another provision of law.  

	b.  A review of the applicant's records show he was considered and not selected by the Fiscal Years (FY) 2008, 2009, 2010, and 2011 APL promotion boards as well as the 2009 MAJ APL SELCON.  

	c.  He was first non-selected by the FY08 LTC APL RCSB because he was not educationally qualified.  He was also not selected by the FY09 LTC APL RCSB and was not selected for selected continuation by the FY09 MAJ APL SELCON board with an indication he was not educationally qualified.  Therefore, he should have been separated no later than the first day of the seventh month following the approval of the FY09 LTC APL RCSB results, 1 July 2010.  

	d.  Within his Interactive Web Services record on the HRC Portal, there is an incorrect entry, dated 21 October 2010, which states he was selected for retention by the FY09 MAJ APL SELCON board (Board Number 2407).  However, review of the approved board results reveals he was not recommended for selective continuation.  Additionally, the HRC memorandum, dated 2 March 2011 erroneously advised him he was selected for continuation; however, he was not recommended for selective continuation by any SELCON boards after FY09. 

	e.  The applicant was commissioned on 30 January 1992 and he had no break in service.  While he spent many years in the Standby Reserve due to his civilian employment, this time is creditable service.  In accordance with Title 10, U.S. Code, section 14506, the later date of required removal is his 20 years of commissioned service – 12 January 2012.  When the error was discovered, he was discharged from the USAR effective 1 August 2012.  

	f.  While it is unfortunate an administrative error occurred and provided him with the erroneous assumption of continuation, the facts remain that he was not selected for promotion due to not meeting the military education requirements and not selected for continuation by the appropriate boards.  Furthermore, as he only has 10 qualifying years for retirement at age 60, there is no provision of law or regulation under which he can be retained in the USAR.  

17.  On 18 November 2012, he provided a rebuttal to the advisory opinion.  He stated:

* The advisory opinion did not change the arguments he made in his original submission
* HRC confirms in writing that administrative errors had occurred in advising him of his SELCON that was approved by the SA
* The erroneous notification provided him and others in the Army with the erroneous assumption that he could volunteer, deploy, and serve despite the assertions that he should have been separated
* He placed his trust in the Army and he had no reason to question an official's notification that he was selected for continuation
* He trusted the Army's word and he requests the Army reciprocate and honor its prior word that he was in fact SELCON

18.  Title 10, U.S. Code, section 14506 (Effect of Failure of Selection For Promotion: Reserve Majors of the Army, Air Force, and Marine Corps, and Reserve Lieutenant Commanders of the Navy) states unless retained as provided in section 12646, 12886, 14701, or 14702 of this Title, each reserve officer of the Army, Navy, Air Force, or Marine Corps who holds the grade of major or lieutenant commander who has failed of 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, if not earlier removed from the reserve active-status list, be removed from that list in accordance with section 14513 of this title on the later of the first day of the month after the month in which 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 of the board which considered the officer for the second time.

19.  Title 10, U.S. Code, section 14513 (Failure of Selection for Promotion: Transfer, Retirement, or Discharge) states each reserve officer of the Army, Navy, Air Force, or Marine Corps who is in an active status and whose removal from an active status or from a reserve active-status list is required by section 14504, 14505, or 14506 of this title shall (unless the officer’s separation is deferred or the officer is continued in an active status under another provision of law) not later than the date specified in those sections:

* be transferred to an inactive status if the Secretary concerned determines that the officer has skills which may be required to meet the mobilization needs of the officer’s armed force
* be transferred to the Retired Reserve if the officer is qualified for such transfer and does not request (in accordance with regulations prescribed by the Secretary concerned) not to be transferred to the Retired Reserve; or
* if the officer is not transferred to an inactive status or to the Retired Reserve, be discharged from the officer’s reserve appointment

20.  Army Regulation 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. 

	a.   Table 2-1 states for promotion consideration from MAJ to LTC, the minimum years of service in the lower grade is 4 years and the maximum years of service in the lower grade is 7 years. 

	b.  Table 2-2 states the military education requirements for promotion from MAJ to LTC is fifty percent of the Command and General Staff Officer Course.  

	c.  Paragraph 4-34a (SELCON) states an officer twice non-selected for promotion by a mandatory Reserve of the Army selection board must be removed within the prescribed time limits.  However, subject to the needs of the Army, officers pending separation because of having twice failed to be selected for promotion to MAJ or LTC, may be selectively continued on the RASL in their present grade.  The SA may direct a selective continuation board to consider officers for continuation when required by the needs of the Reserve of the Army. A selective continuation board must recommend the officers for continuation and the SA must approve the recommendation before officers may be continued.  Selectively continued officers, if otherwise eligible, will continue to be considered for promotion until separation.  Continuation for CPT and MAJ will normally be for 3 years from the approval date of the selective continuation board by which the officer is recommended for continuation.  However, continuation may not extend beyond the date on which the officer completes 20 years of commissioned service (CPT) or 24 years of commissioned service (MAJ). The SA may adjust the period of selective continuation.

	d.  Paragraph 4-34b states an officer described in paragraph 4-34a above who has not been selected for continuation will be discharged, or, if eligible and the officer requests, transferred to the Retired Reserve on the expiration of the continuation period established under paragraph c, above, unless on or before that date one of the following has occurred:

* The officer has been promoted or is on a list of officers recommended for promotion to the next higher grade
* The officer has been selected again for continuation by a later selective continuation board
* The officer is within 2 years of being eligible to retire under Title 10, U.S. Code, section 3911 or 12732
* The officer has retired
* The officer was retained under some other provision of law or regulation
* The officer was involuntarily transferred to an inactive status because the SA determined that the officer had skills that were required to meet mobilization needs

21.  Army Regulation 140-10 (Army Reserve - Assignments, Attachments, Details, and Transfers) prescribes policy and procedures for assigning, attaching, removing, and transferring USAR Soldiers.  Paragraph 7-4 (Non-selection for promotion) applies only to officers who have fulfilled their statutory military service obligation.  It stipulates the removal of officers who are twice not selected for promotion to captain, major, and lieutenant colonel.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was considered for promotion to LTC by the FY08, FY09, FY10, and FY11 but he was not selected for promotion.  He was also considered by the FY09 SELCON board but he was not selected.  

2.  For unknown reasons, a memorandum was generated in March 2011 informing him that despite having been non-selected for promotion, a SELCON board has selected him for continuation of service in the USAR in his current grade and that he could serve until completion of 24 years.  As a result of this administrative error, he believed his MRD would be January 2016.

3.  However, by law and regulation, Army Reserve MAJs 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 are required to be separated on the later of the first day of the seventh 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 of the board which considered the officer for the second time, unless the officer is retained under another provision of law.  

4.  The applicant was first non-selected by the FY08 LTC RCSB because he was not educationally qualified.  He was also not selected by the FY09 LTC RCSB and was not selected for selected continuation by the FY09 MAJ SELCON board with an indication he was not educationally qualified.  Therefore, he should have been separated no later than the first day of the seventh month following the approval of the FY09 LTC RCSB results, 1 July 2010.  For unknown reasons, this did not happen.

5.  Since he was appointed on 30 January 1992 and he had no break in service, he completed 20 years of service on 12 January 2012.  In accordance with Title 10, U.S. Code, section 14506, the later date of required removal is his 20 years of commissioned service – 12 January 2012.  When the error was discovered, he was discharged from the USAR effective 1 August 2012.  There is no reason to revoke his discharge orders or change his MRD.

6.  The applicant's civilian employment, dedication, and commitment to the Army and the nation are not in question.  However, the fact that an administrative error had occurred and provided him with the erroneous assumption of continuation, does not negate the fact that he was not selected for promotion due to not meeting the military education requirements and not selected for continuation by the appropriate boards.

7.  Implicit in the Army's personnel system is the universally accepted and frequently discussed principle that officers have a responsibility for their own careers.  The applicant – a senior MAJ - knew or should have known of the education requirements for promotion to the next higher grade and the option to write to the President of the promotion selection board.  His failure to exercise due diligence in managing his career does not establish an error by the Army. 

8.  Based on the foregoing evidence, regretfully, 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 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)                                         AR20120013134





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ABCMR Record of Proceedings (cont)                                         AR20120013134



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