IN THE CASE OF:	  

		BOARD DATE:	    18 July 2013

		DOCKET NUMBER:  AR20120022129 


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 correction of his records to show he was reinstated on the sergeant first class (SFC) promotion list with his original sequence number.

2.  The applicant states that he applied for retirement in December 2011 and his retirement was approved for 30 November 2012.  Shortly after his retirement was approved, he was selected for promotion to SFC (E-7).

   a.  On 31 July 2012, while attending out-processing briefings, he discovered he had a service obligation that he was previously unaware of and brought it to the attention of the local Retirement Services Officer (RSO).

   b.  The RSO contacted the U.S. Army Human Resources Command (HRC), Retirement Services, and it was acknowledged that his application for retirement should not have been approved.

   c.  He filed complaints with both the U.S. Army Special Operations Command and HRC Inspector General's (IG) Offices and he received a final response from the HRC IG advising him of his right to apply to the Army Board for Correction of Military Records (ABCMR).

3.  The applicant provides copies of his:

* retirement application and orders
* request for withdrawal of retirement
* removal from promotion selection list
* post-9/11 GI Bill transfer of benefit approval
* request for retirement and promotion determination
* HRC IG finding

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve on 18 September 1992 and he further enlisted in the Regular Army (RA) on 13 November 1992.

   a.  He was promoted to staff sergeant (SSG)/pay grade E-6 on 1 November 2001.

   b.  He is currently serving on active duty in the RA.

2.  In support of his application the applicant provides the following documents:

   a.  DA Form 4187 (Personnel Action), dated 5 December 2011, that shows the applicant requested retirement from active duty effective 30 November  2012.

   b.  Installation Management Command (IMCOM), Headquarters (HQ), U.S. Army Garrison (USAG), Fort Carson, CO, Orders 038-0016, dated 7 February 2012, that directed the release of the applicant from active duty effective 
30 November 2012, in the grade of rank of SSG, to be placed on the retirement list on 1 December 2012.  The orders show he was credited with completing 
20 years and 18 days of service for voluntary retirement.

   c.  HQ, USAG, Transition Center, Fort Carson, CO, memorandum, dated 
15 May 2012, that shows the Chief, Transitions/Retirement Services, requested withdrawal of the applicant's retirement based on his selection for promotion to SFC.

   d.  HRC, Fort Knox, KY, memorandum, dated 4 June 2012, that shows the Chief, Enlisted Retirements and Separations, disapproved the applicant's request for withdrawal of his approved retirement.  The official confirmed the applicant was in a non-promotable status due to his approved retirement and that his original retirement date of 1 December 2012 remained in effect.

   e.  HRC, Fort Knox, KY, memorandum, dated 19 June 2012, that shows the Chief, Enlisted Promotions, Promotions Branch, notified the applicant that he was considered and selected for promotion by the Fiscal Year 12 SFC Promotion Selection Board; however, his name was administratively removed from the SFC Promotion Selection List due to his approved retirement.
   f.  Department of Defense (DOD), Manpower Data Center (MDC), Seaside, CA, memorandum, dated 31 July 2012, that shows the applicant's request to transfer his unused Post-9/11 GI Bill benefits to a member of his family was submitted by the applicant on 14 October 2009 and approved on 14 October 2009.  It also shows the end date for his military obligation is 14 October 2013.

   g.  HQ, USAG, Transition Center, Fort Carson, CO, memorandum, dated
1 August 2012, that shows the Chief, Transitions/Retirement Services, requested a determination on the status of the applicant's retirement and his promotion to SFC based on his service obligation of 14 October 2013.

   h.  IMCOM, HQ, USAG, Fort Carson, CO, Orders 268-0005, dated
24 September 2012, revoked Orders 038-0016, dated 7 February 2012, pertaining to the applicant's retirement.

   i.  HRC, Fort Knox, KY, memorandum, dated 18 November 2012, shows the Detailed IG provided the applicant a final response to his IG Action Request, dated 10 August 2012, concerning not being promoted after receiving erroneous retirement orders.

    	(1)  An inquiry into the matter revealed that HRC personnel did not act improperly.  The action to remove the applicant from the promotion list after the list was released and the determination not to reinstate him on the promotion list if the retirement is withdrawn was based on regulatory guidance.  

    	(2)  The Detailed IG agreed that the applicant should not have been granted voluntary retirement because he still had an obligation to meet and that a case could be made for the retirement approval being considered erroneous.

    	(3)  The applicant was advised of his option to appeal the HRC decision to the ABCMR.

3.  Public Law 110-252 (Supplemental Appropriations Act, 2008) provides the authority for members of the Armed Forces serving on active duty or as a member of the Selected Reserve on or after 1 August 2009 to transfer unused educational benefits to eligible family members.  The Public Law amended
Title 10 (Armed Forces), U.S. Code, chapter 1606, section 16132a, to show that subject to regulation prescribed by the Secretary of Defense, the Secretary concerned may permit a member who is entitled to basic educational assistance under this chapter to elect to transfer entitlement to unused educational benefits to one or more of the specified family members.

4.  Deputy Chief of Staff (DCS), G-1, Post-9/11 Bill Implementation Policy, paragraph 17 (Transferability of Unused Benefits to Dependents), subparagraph a (Eligibility), provides that any Soldier of the Armed Forces who fulfills Post-9/11 eligibility requirements and who, at the time of the approval of the Soldier's request to transfer entitlement of educational assistance does not have an adverse action flag, is eligible for the Post-9/11 GI Bill.

   a.  It shows the Soldier must be or will become retirement eligible during the period from 1 August 2009 through 1 August 2013 and must agree to serve the additional period, if any specified.

   b.  It also shows that Soldiers who attain 20 years of service on or after
2 August 2011, and before 2 August 2012, 3 years of additional service from the date of request are required.

   c.  It does not specify any further additional service obligations.

   d.  The provisions governing the additional service obligation expire on 
2 August 2013.

5.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 12 (Retirement for Length of Service), provides in:

   a.  paragraph 12-8 (Service obligations), subparagraph d, that Soldiers who have an approved retirement are in a non-promotable status.  They will not be promoted unless a request for withdrawal of their retirement application has been approved;

   b.  paragraph 12-11 (Waivers), that exceptions to service obligations may be granted when the best interest of the Service is involved or when substantial hardship exists or would result if the Soldier is not retired.  Substantial hardship is a situation or circumstance that imposes undue suffering on the Soldier or the immediate family.  Requests for exception to service obligation must be submitted by the Soldier and the request must be fully defined and documented; and

   c.  paragraph 12-15 (Request for withdrawal of application or change in retirement date), that in cases not involving Soldier requests based on hardship or those not involving court-martial, administrative discharge, or physical disability, an approved retirement may be revoked, or the effective date delayed, based on the best interest of the Army.  In such situations, requests for revocation or delay may be submitted on a case-by-case basis through Commander, HRC to the DCS, G–1.  Requests must be fully justified.
6.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  Chapter 4 (Centralized Promotions - Sergeant First Class, Master Sergeant, and Sergeant Major), section V (Processing removal from a centralized promotion list), paragraph 4-15, provides that commanders will promptly forward documentation to the Commander, HRC, pertaining to Soldiers on a Headquarters, Department of the Army, recommended list who has an approved retirement.  HRC will delete, without further board action, the name of any Soldier from the recommended list who has an approved retirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was reinstated on the SFC (E-7) promotion list with his original sequence number because he was unaware that he had a service remaining obligation at the time he applied for retirement and his retirement should not have been approved.

2.  The evidence of record shows the applicant submitted his request to transfer his unused Post-9/11 GI Bill benefits to a member of his family on 14 October 2009, it was approved on that date, and he was notified that the end date for his service obligation was 14 October 2013.

3.  The applicant entered active duty on 13 November 1992.  On 5 November 2011, he applied for voluntary retirement effective 30 November 2012.  HRC approved his retirement and he was issued orders on 7 February 2012.

4.  The evidence of record shows the information in the DOD MDC pertaining to the applicant's service obligation may have been in error because he completed 20 years of active Federal service on 13 November 2012 and the DCS, G-1 policy guidance governing the transfer of Post-9/11 GI Bill benefits does not specify a service obligation for Soldiers who attain(ed) 20 years of service after 
2 August 2012.

5.  The evidence of record also shows that a waiver or exception to a service obligation may be granted by HRC.  In the absence of an approved waiver of a service obligation, it is reasonable to conclude the applicant did not actually have a service obligation.  On the other hand, if one chooses to operate under the assumption that the applicant did have a service obligation, HRC's approval of his voluntary retirement constitutes a defacto approval of such a waiver because there is no evidence of record that shows the transfer of the applicant's Post-9/11 GI Bill benefits to his family member was denied or revoked based on the approved retirement date.  In any event, the issue of a service obligation is not the overriding issue in this case.
6.  The evidence of record shows the applicant had an approved voluntary retirement when he was selected for promotion to SFC (E-7).  His request for withdrawal of his retirement was disapproved.  Based on the governing Army regulation, his name was properly deleted from the SFC recommended promotion list.

7.  Three months after his name was administratively removed from the SFC promotion list, the applicant's retirement orders were revoked.  The basis for this action is not clear.  In any event, the evidence of record shows the determination by HRC not to reinstate the applicant on the SFC promotion list was based on regulatory guidance.

8.  Therefore, in view of all of the foregoing, there is an insufficient evidentiary basis for granting 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)                                         AR20120022129



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ABCMR Record of Proceedings (cont)                                         AR20120022129



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