BOARD DATE:	  13 August 2013

		DOCKET NUMBER:  AR20120020466 


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:

	a.  a promotion to colonel; 

	b.  his date of rank (DOR) be adjusted; and

	c.  placement in the Individual Ready Reserve (IRR). 

2.  The applicant states:

	a.  a Special Selection Board (SSB) recommended that he be promoted to colonel.  Based upon the SSB decision and notification of promotion consideration from the Department of the Army (DA), U.S. Total Army Personnel Command he should be promoted to colonel and his DOR adjusted;

	b.  it has been a long and tedious process.  He submitted a letter to the Reserve Component (RC) Army Promotion List (APL) Colonel Board for reconsideration due to the discovery of three different administrative errors in his military records.  He attempted to delay his retirement until the APL Board made a decision, but he was retired from active duty on 31 March 2002;  

	c.  in September 2002, he was notified an SSB recommended him for promotion;

	d.  in May 2003, an attempt was made to correct his records, but the application was returned because his records could not be located; and

	e.  in July 2005, he received a phone call from an Army Board for Correction of Military Records (ABCMR) employee who explained to him that his only option was to withdraw his 2005 application and wait until he attained the age of 59 1/2 and then request promotion upon reaching age 60 and placement into the IRR, which brings him to this request.    

3.  The applicant provides:

   a.  a report of proceedings for the RC SSBs, dated 25 September 2002 and 19 February 2003; and
   
   b.  letters of promotion from the DA, U.S. Total Army Personnel Command, dated 9 April 2003.

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.  The applicant was born on 6 February 1953.  Having prior enlisted service in the Regular Army and commissioned service in the U.S. Army Reserve, he was appointed as a captain in the Army National Guard (ARNG) on 6 May 1984.  He was ordered to active duty on 15 February 1990 in an Active Guard Reserve status.  He was promoted to lieutenant colonel on 24 September 1995.  

3.  In 1999, he was considered but not selected for promotion.



4.  Orders 320-2, dated 16 November 2001, show he was retired from active duty effective 31 March 2002.

5.  He was also separated from the ARNG on 31 March 2002 and placed on the retired list on 1 April 2002.

6.  On 25 September 2002, he was selected for promotion to colonel by an SSB under the 1999 criteria.  The board was approved on 29 January 2003.

7.  He provides a memorandum, dated 9 April 2003, from the Chief, Officer of Promotions RC, U.S. Total Army Personnel Command, St. Louis, MO which states:

	a.  the DA Standby Advisory Board convened on 25 September 2002 and considered him for promotion under the 1999 criteria;

	b.  he was recommended for promotion to colonel; and

	c.  upon final processing, a promotion letter will be forwarded with a DOR of 30 March 2000. 

8.  In the processing of this case, an advisory opinion was obtained from the Acting Chief, Officer Promotions Special Actions, U.S. Army Human Resources Command (HRC), Fort Knox, KY.  The advisory official recommends partial relief be granted.  The advisory official points out:

	a.  the applicant retired from the ARNG with retired pay prior to approval of his previous SSB results, Senate Confirmation, or promotion to colonel;

	b.  a legal opinion from Headquarters DA, Deputy Chief of Staff, G-1 to HRC Officer Promotions via email states "The Deputy ASA (M&RA) directed that the practice of granting special boards for "former officers" without directive from the ABCMR be stopped."  It further states not to grant special boards for "former officers" who no longer have current military status unless the Secretary of the Army directs via ABCMR and should the ABCMR direct SSBs for these officers at a later date, they will have to be seen by new SSBs.  Additionally, the applicant must have been in an active Reserve status or active duty status (as applicable) and proven to be fully eligible prior to being promoted to the rank of colonel; 



	c.  previous documents also note that the National Guard Bureau along with the applicant were informed that an approval for promotion would also be 
contingent upon revoking his retirement orders and transferring him to the IRR, it also required that the applicant reimburse the government for all the retirement pay he received since 31 March 2002; and 

	d.  in addition, an Army Grade Determination Board cannot waive statutory time in grade (TIG) requirements for retirement.  The TIG requirement for colonel is 3 years under the provisions of Title 10, U.S. Code, section 1370, in order to receive any additional benefits or monies associated in the rank of colonel except as otherwise specifically authorized by law.  

9.  On 27 February 2013, the advisory opinion was furnished to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

10.  Title 10, U.S. Code, section 1370(d)(3)(A), states that, in order to be credited with satisfactory service (for retirement) in an officer grade above major, a Reserve officer must have served satisfactorily in that grade in an active status for not less than 3 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered and appear to have merit.

2.  The evidence shows he retired from the ARNG, from active duty, in the rank of lieutenant colonel on 31 March 2002.  Subsequently, in September 2002, he was selected for promotion to colonel by an SSB under the 1999 criteria with a DOR of 30 March 2000.  

3.  Had he been selected for promotion in a timely manner it is presumed the applicant would have desired and been allowed to stay on active duty until he completed the statutory 3 years time in grade, i.e., 30 March 2003.  Therefore, it would be equitable to show he would have retired as a colonel on 31 March 2003 and transferred to the Retired Reserve on 1 April 2003.

4.  The above correction may require an offset of any retired pay/other pay he received against the additional active duty pay he would have received.

5.  Transfer to the IRR would not be appropriate, as he would lose about 11 years' worth of retired pay.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x__  ___x_____  ____x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was 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:

     a.  showing he met all the eligibility criteria for promotion (e.g., being assigned to a colonel's position) effective 30 March 2000, promoting him to colonel with a DOR and effective date of 30 March 2000;

     b.  voiding his retirement of 31 March 2002 and showing he remained on active duty until 31 March 2003 when he was released from active duty for the purpose of sufficient service for retirement;

     c.  paying to him all due back active duty pay and allowances as a result of the above correction with appropriate offsets for any civilian pay and/or military retired pay he may have received; and

     d.  showing he was placed on the Retired List on 1 April 2003 in the rank of colonel, with all due back retired pay to include any cost of living adjustments.

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 the application that pertains to transferring the applicant to the Individual Ready Reserve.



      _______ _   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)                                         AR20120020466



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ABCMR Record of Proceedings (cont)                                         AR20120020466



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