IN THE CASE OF:	  

		BOARD DATE:	  11 June 2013

		DOCKET NUMBER:  AR20120020952 


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:

* adjustment/correction of his date of rank (DOR) to major (MAJ) to 17 January 2007
* reinstatement in the U.S. Army Reserve (USAR) Control Group (Reinforcement) so he may serve through his mandatory removal date (MRD) to 2016
* review by the next lieutenant colonel (LTC) boards once he reaches the time in grade (TIG) requirements as a MAJ

2.  The applicant states:

	a.  He was placed in the Retired Reserve after being twice non-selected for promotion to LTC only 4 years after being promoted to MAJ.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other Than General Officers) specifies that MAJ to LTC mandatory boards occur when an officer reaches 7 years TIG.  He was selected to MAJ by a special selection board (SSB) in 2005 but he was given an incorrect DOR after the 2005 SSB, using a promotion eligibility date (PED) from 2000.  He was not in a promotable status until 2007 when he was notified by the SSB in 2006 and the Army Board for Correction of Military Records (ABCMR) in 2007.  He then deployed to Iraq within 90 days of effective date of promotion. 

	b.  He was penalized for not being able to complete Intermediate Level Education (ILE) Phases I and II, during back-to-back deployments to Iraq and Afghanistan 2007-2009.  He was a captain (CPT) until 2007 after correction by the ABCMR and received the difference in pay from sergeant (SGT) to CPT from 2005-2006.  Federal recognition for CPT was not terminated until the Secretary of the Army approved the 2007 ABCMR results.  

	c.  After receiving his notification of selection to MAJ memorandum, dated 22 June 2006 from the Chief, Office of Promotions-Reserve Components, he filed a DD Form 149, Application for Correction of Military Records and received a favorable response on 23 January 2007.  He recently reviewed paragraph 6 of the ABCMR Record of Proceedings (page 3), which stated that the applicant has been selected for promotion to MAJ by an SSB that convened on 4 November 2005.  The effective date of the promotion would be either of the following dates: (a) 3 January 2000; or (b) the date Federal recognition was extended in the higher grade or (c) the date following the date Federal recognition was terminated in the current grade. 

	d.  ABCMR Docket Number AR20060014854, dated 17 January 2007, pertaining to his selection to MAJ by the SSB 2005SS12R7 adjourning on 4 November 2005 indicates the promotion eligibility date as 2000-01-03 placed an unreasonable time frame on his meeting military education requirements (Military Education Level 4 (MEL4)) prior to the 2007-2008 MAJ-LTC Boards.  Army Regulation 135-155 specifies that officers selected by an SSB are eligible for the same DOR they would have received by the original board in which the error occurred (on his date of eligibility, under the 1999 criteria, or the date he met all requirements for promotion with entitlement to all applicable back pay and allowances).  He was not eligible and did not meet all requirements for promotion until 2007 as he was not reinstated in the USAR Control Group (Reinforcement) until January 2007 when the decision was approved by the ABCMR.  Federal recognition as a CPT could not have been terminated prior to January 2007 (received difference in pay for CPT only during the time he was a SGT in 2005-2006). 

	e.  He was also penalized for the USAR using the earlier DOR/PED as he was immediately required to complete ILE for the 2007 MAJ-LTC board.  Also, he only received back pay for the difference in pay from SGT to CPT for 2005-2006 as he was discharged in 2000-2005 and received no-rated time for this period which should have been as a CPT due to the previous promotion board error.  If the SSB would have been held in 2000 to correct the 1999 error, the DOR of 2000 would be correct and he could have completed ILE not later than 2004.  Due to his deployments to Iraq on 14 April 2007 and Afghanistan on 23 August 2008, he was unable to compete Phases I and II of non-resident ILE until after the 2009 Department of the Amy LTC Reserve Components Selection Board (RCSB).  His request for military education waivers were denied as he was unable to complete ILE until 29 October 2010, then he was involuntarily transferred to the Retired Reserve on 24 February 2011 for non-selection for promotion. 

	f.  Due to back-to-back deployments to Iraq and Afghanistan with an interim assignment to a Drilling Individual Mobilization Augmentee (DIMA) slot in Okinawa, Japan, only 3 months after being promoted to MAJ, he was unable to complete ILE until returning from Afghanistan.  He recently returned from his second contractor tour in Afghanistan and contacted the Office of Promotions at the U.S. Army Human Resources Command (HRC) for clarification as to why he received a DOR backdated 7 years earlier and was informed that all SSB promotions to MAJ where given much earlier DORs due to over 5 years passing since the previous boards' 1999 erroneous non-selections from CPT-MAJ.  He was penalized by using the older DOR instead of the effective date of promotion to MAJ and was unable to complete ILE while deployed to Iraq and Afghanistan 2007-2009.  There are current vacant MAJ positions in various troop program units (TPU) that he is interested in transferring into and he is unable to do so while in the Retired Reserve.  He has not yet reached the age of 50 and his MRD is not until 1 May 2016.

3.  The applicant provides:

* Retired Reserve orders
* Transfer to the USAR Control Group (Reinforcement) orders
* DA Form 1059 (Service School Academic Evaluation Report)
* Orders and certificate for award of the Joint Service Commendation Medal
* Recommendation for award of the Joint Service Commendation Medal
* Officer Evaluation Reports (OER) 20080712 - 20090522, 20080216 - 20080711, and 20070305 -20080215
* Reassignment in the Reserve orders
* Certificate for award of the Army Commendation Medal
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* ABCMR Docket Number AR20060014854, dated 23 January 2007
* SSB promotion memorandum

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on XX April 1963. 

2.  Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer in the Kansas Army National Guard (KSARNG) and executed an oath of office at 24 years of age on 27 October 1987.  He served in a variety of assignments and he was promoted to CPT on 11 September 1992. 
3.  He was considered for promotion to MAJ by the Fiscal Year 1999 (FY99) and FY00 boards, but he was not selected by either board.  As such, he was honorably discharged from the USAR on 25 September 2000.

4.  On 17 December 2004, he enlisted in the KSARNG in the rank of SGT.  It appears he was eligible for an SSB for promotion consideration to MAJ under the 2000 criteria as the original promotion board memorandum of instruction for this board included a civilian education requirement (baccalaureate degree) but did not provide for an exception to policy.   

5.  As such, an SSB (2005SS12R7) convened under Title 10, U.S. Code, section 14502 and adjourned on 4 November 2005.  The SSB selected him for promotion to MAJ.  Accordingly, on 18 April 2006, by memorandum, HRC officials notified him that his PED would be used to compute his TIG for Reserve promotion and that the effective date would be either of the following:

* 3 January 2000
* Date Federal recognition extended in the higher grade
* Date following the date Federal recognition was terminated in current Reserve grade

6.  This memorandum further advised him that "If officer accepts promotion and Federal recognition is not extended in the next higher grade, he/she would be transferred to the USAR on the date following the date of termination of Federal recognition.  Earliest possible DOR the officer can have is the approval date of the criteria year 1999 recommended under." 

7.  On 17 January 2007, in response to his petition to the ABCMR to void his enlistment contract, reinstate him into the USAR, promote him to MAJ, and authorize him back pay and allowances, the Board granted him relief as follows:

* voiding his 25 September 2000 discharge from the USAR with reinstatement to the USAR Control Group
* voiding his 17 December 2004 enlistment in the KSARNG
* promoting him to MAJ under the 1999 year criteria, or the date he met all requirements for promotion, with entitlement to all applicable back pay and allowances
* inserting an adequate explanation in his records to show that the gap in his officer evaluation reports, from the date of his now-voided discharge, to the date of his return to the USAR in a Reserve officer commissioned status, was not caused by him and to ensure that he is not prejudiced thereby in the consideration of any future personnel actions
* expunging from his records all documents related to his now-voided non-selection for promotion by the 1999 RCSB, his discharge of 25 September 2000, and his enlistment contract of 17 December 2004
* offsetting the pay received by the applicant in his previous status and payment of any difference that he may be due

8.  On 17 January 2007, the KSARNG published official orders discharging him from his enlisted status in the ARNG and assigning him to the USAR Control Group (Reinforcement). 

9.  On 7 February 2007, HRC published Orders B-02-701055 promoting him to MAJ with an effective date of 17 January 2007 and a DOR as 3 January 2000.  

10.  On 14 April 2007, he voluntarily entered active duty as a Reserve commissioned officer and subsequently served in Kuwait/Iraq from 15 April 2007 to 3 February 2008.  He was honorably released from active duty on 17 February 2008.  

11.  He was considered for promotion to LTC by the FY07 RCSB but he was not selected for promotion. 

12.  On 23 August 2008, he again voluntarily entered active duty as a Reserve commissioned officer and subsequently served in Afghanistan from 25 September 2008 to 29 June 2009.  He was honorably released from active duty on 29 August 2009. 

13.  He was considered for promotion to LTC by the FY08 RCSB that convened around September 2008 but he was not selected for promotion.

14.  On 14 May 2009, HRC issued him a Notification of Eligibility for Retired Pay at Age 60 (20-year letter). 

15.  He was considered for promotion to LTC by the FY09 RCSB that convened around September 2009 but he was not selected for promotion

16.  On 4 November 2010, he was issued a DA Form 1059 showing completion of ILE (U.S. Army Command and General Staff Officer Course) between 21 December 2007 and 29 October 2010.

17.  On 24 February 2011, HRC published Orders C-02-102956 transferring him to the Retired Reserve effective 24 February 2011 by reason of non-selection for promotion. 

18.  An advisory opinion was obtained from the Office of Promotions at HRC on 28 February 2013 in the processing of this case.  An advisory official recommended denial of the applicant's request.  The official stated the assertion that the applicant was disadvantaged for promotion based upon his established DOR to MAJ and inability to complete Military Education (MILED) required based upon a reduced window for promotional consideration to LTC, is totally without merit.  

	a.  The applicant received an SSB in 2005 for promotion to MAJ and also received additional ABCMR relief to have his DOR adjusted to 3 January 2000.  As such, the officer was immediately eligible for consideration by the FY07 LTC Army Promotion List (APL), Promotion Selection Board (PSB) since consideration for promotion is based on established DOR and MRD, if not within 90 days of removal from the Reserve Active Status List (RASL), as mandated by Title 10, USC, section 14301.

	b.  The applicant was indeed non-selected for promotion to LTC by the FY07,
FY08, and FY09 LTC APL PSBs for failing to meet the required MILED requirement ILE as established by Army Regulation 135-155, paragraph 2-8 and Table 2-2 respectively.  However, both his deployments in 2007 and 2008 timeframe were voluntary and partial unit based mobilizations where the officer voluntarily failed to seek the respective MILED requirement via either resident attendance or distance learning.  If the applicant had completed, at a minimum, Phases I and II of the ILE prior to the FY09 board, he could have requested a MILED waiver and potentially been successfully considered by the boards as being educationally qualified.

	c.  He was granted Selective Continuation (SELCON) by the FY08 LTC APL PSB and his MRD was subsequently adjusted to 24 February 2011 as established by Title 10, USC, section 14701, where a reserve officer who holds the grade of MAJ may be extended until the last day of the month in which the officer completes 24 years of commissioned service.  Thus the officer was afforded even more time to meet the respective MILED required, but only completed the requirement on 29 January 2010.  Based upon being within 90 days of his established MRD, the officer was not considered by the FY10 LTC APL PSB but would have been finally MILED qualified.

	d.  A further review of the applicant's file concluded that he received two OERs that were "Satisfactory Performance; Promote" covering the rated period 23 May 2009 through 5 March 2010 and 5 March 2007 through 15 February 2008.  It is important to note that the above referenced OERs would have severely impacted his promotion standing.  Since all the boards were "Best Qualified," the officers deemed "Fully Qualified" are ranked in an order of merit based upon their board scores and recommended for promotion up to the respective selection objective (i.e., total number authorized for promotion).  It can only be concluded that even if he was considered MILED qualified, the previous promotion boards would have likely determined that his overall record, when compared with the records of his contemporaries in the zone of consideration, did not reflect as high a potential as those selected for promotion.

19.  The applicant was provided with a copy of this advisory opinion to give him the opportunity to respond and submit a rebuttal but he did not respond.  

20.  Army Regulation 135-155 prescribes policy and procedures used in the selection and promotion of commissioned officers of the ARNG and commissioned and warrant officers of the USAR.  

	a.  Table 2-1 (Time in Grade Requirements for Commissioned Officers, Other Than Commissioned Warrant Officers) of this regulation outlines the service requirements for promotion and indicates that for promotion to LTC the maximum years in the lower grade is 7 years.

	b.  Paragraph 2-8 (Military Education Requirements) states to qualify for selection, commissioned officers (other than commissioned warrant officers) must complete the military educational requirements in table 2-2 not later than the day before the selection board convene date.

	c.  Table 2-2 states the military education requirements for promotion from MAJ to LTC is 50 percent of the Command and General Staff Officer Course.   

	d.  Chapter 4 (Processing Selection Board Recommendations), section III (Dates of Promotion), provides the procedures for computing promotion effective dates of all RC Soldiers.  It states the DOR is the date the officer meets the eligibility criteria for promotion to the next higher grade and that an officer’s PED will become their DOR upon promotion and this date will be used to establish the relative seniority for officers holding the same rank.  

21.  On 31 August 2006, the Department of the Army (DA), Office of the Deputy Chief of Staff, G-1, issued a memorandum, Subject: Reserve Component Promotion Board Military Education Waiver Guidance.  It states, in pertinent part, that the military education requirement for LTC RCSBs is 50 percent completion of legacy Command and General Staff Officer Course (CGSOC) or 100 percent completion of ILE-CC or equivalent.  In order to be eligible for a military education waiver, an officer must complete, at a minimum, Phases 1 and 2 of the non-resident ILE-CC.
22.  Army Regulation 135-155 states 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, 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 military schooling.

23.  Title 10, USC, 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 24 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.

24.  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
* if the officer is not transferred to an inactive status or to the Retired Reserve, be discharged from the officer’s reserve appointment

DISCUSSION AND CONCLUSIONS:

1.  The applicant was twice considered but not selected for promotion from CPT to MAJ in 1999 and 2000.  As a result of this non-selection, he was honorably discharged from the ARNG on 25 September 2000.  Years later, in December 2004, he enlisted in the USAR.  

2.  While in an enlisted status, he was considered by an SSB in November 2005. The SSB selected him for promotion to MAJ.  Accordingly, on 18 April 2006, by memorandum, HRC officials notified him that his PED would be used to compute his TIG for Reserve promotion and that the date of promotion would be either of the following:

* 3 January 2000
* Date Federal recognition extended in the higher grade
* Date following the date Federal recognition was terminated in current Reserve grade

3.  He petitioned the ABCMR and received full relief in that the Board recommended voiding his September 2000 discharge from the USAR and December 2004 enlistment; promoting him to MAJ with a DOR of 3 January 2000, and other administrative remedies.  

4.  Based on his DOR of 3 January 2000, he was eligible for and considered by the FY07 LTC APL PSB since consideration for promotion is based on established DOR and MRD, if not within 90 days of removal from the RASL, as mandated by law (Title 10, USC, section 14301).  He was not selected for promotion to LTC by the FY07, FY08, and FY09 LTC APL PSBs for failing to meet the required MILED requirement ILE as established by Army Regulation 135-155.  His deployments in 2007 and 2008 timeframe were voluntary actions.  

5.  He was granted SELCON by the FY08 LTC APL PSB and his MRD was subsequently adjusted to 24 February 2011 as established by Title 10, USC, section 14701, where a reserve officer who holds the grade of MAJ may be extended until the last day of the month in which the officer completes 24 years of commissioned service.  In other words, he was afforded even more time to meet the respective MILED required, but he did not do so until 29 January 2010. Because he was within 90 days of the convening date of the FY10 LTC APL PSB, he was not considered by the FY10 LTC APL PSB.  

6.  Implicit in the Army's promotion system is the universally accepted and frequently discussed principle that officers have a responsibility for their own careers.  The general requirements and workings of the system are widely known and specific details such as RCSB dates and promotion zones, military and civilian education requirements, are widely published in official, quasi-official and unofficial publications, and in official communications.  Given that he specifically requested an adjustment of his DOR to MAJ to the earliest date possible and that he had to be considered by an RCSB so that, if selected, he could be promoted by the time he had served 7 years in the lower grade, the applicant knew, or should have known, that he would be considered for promotion to LTC as early as 2007 and that he needed to insure, well in advance, that his record would represent his career and qualifications to that board in the best possible light.

7.  In view of the circumstances in this case, the applicant is not entitled to any of the requested relief.  He was fairly considered three times for promotion to LTC and not selected.  He was not MILED qualified; he has not submitted sufficient evidence showing that he was prevented from completing the required military education for promotion to LTC; he did not request a military education waiver; and his OERs appear to have severely impacted his promotion standing.  He has not shown error, injustice, or inequity for the relief he now requests.

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)                                         AR20120020952





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ABCMR Record of Proceedings (cont)                                         AR20120020952



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