IN THE CASE OF:	

		BOARD DATE:	  31 October 2013

		DOCKET NUMBER:  AR20120022351 


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:

* reinstatement in the Active Guard Reserve (AGR) Program at the rank of lieutenant colonel (LTC) with a date of rank (DOR) of 28 August 2012
* recovery of all retirement points
* back pay as of 1 August 2012 with no financial penalties
* orders to attend the Army War College
* permanent change of station (PCS) orders to his post of choice

2.  The applicant states he was not retained in the AGR Program even though he was selected for selective continuation (SELCON) and selected for promotion to LTC by the Fiscal Year (FY) 2011 LTC Army Promotion List (APL) Promotion Selection Board.

3.  The applicant states he was given no choice but to be separated from active service.  He states he was selected for promotion to LTC in June 2012 and he was released from active duty (REFRAD) on 1 August 2012.  The results of the LTC promotion board where not published until 28 August 2012.

4.  The applicant states in accordance with the Office of the Deputy Chief of Staff (DCS), G-1, Officer Selection Board Policy Branch Standing Operating Procedures (SOP), dated October 2009, he should have been retained on active duty as a major (MAJ) until his 24-year active commissioned service date.


5.  The applicant provides:

* two memoranda for SELCON on the Reserve Active Status List (RASL), dated 30 January 2012
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 1 August 2012
* FY 12 LTC APL RC Selection List (AGR Competitive Category), release date 13 September 2012
* pages 68 and 69 of the U.S. Army G-1 Officer Selection Board Policy Branch SOP - October 2009
* Orders B-10-206064, issued by the U.S. Army Human Resources Command (HRC), Fort Knox, KY, dated 2 October 2012

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior enlisted service in the Montana Army National Guard (MTARNG).  He was appointed as a second lieutenant on 9 June 1989.

2.  A National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending 1 April 1997 shows the applicant was discharged from the MTARNG and transferred to the USAR.

3.  On 31 July 2004, he was promoted to MAJ.  On 22 January 2007, he was ordered to full-time duty in the U.S. Army Reserve (USAR) AGR Program.

4.  A memorandum from HRC, subject: SELCON on the RASL, dated 30 January 2012, shows the applicant was notified that he was not selected by the Army Reserve Components Promotion Selection Board (PSB) for the second time.  The memorandum continued that the SELCON Board recommended him for continuation in his present grade and the Secretary of the Army approved the recommendation.  The memorandum further stated as an AGR officer, he had to be REFRAD from the AGR Program no later than the first day of the seventh month after the board had been approved.  Unless he specifically declined continuation, he would be continued on the RASL.

5.  A second memorandum from HRC, dated 30 January 2012, requested the applicant complete and return an attached Acknowledgement and Options Statement.  The statement listed the following acknowledgements:

	a.  He was presented the memorandum of notification releasing him from active duty due to failure of selection for permanent Reserve promotion.

	b.  He understood his release from active duty and the AGR Program would be on the first day of the seventh month after the board had been approved.

	c.  He understood his release from active Reserve status would be in accordance with Title 10, U.S. Code, section 14701 (Selection of Officers for Continuation on the RASL).

	d.  He was presented the memorandum stating he had been recommended to be selectively continued and could remain on the RASL in the Ready Reserve until he completed 24 years of commissioned service.

6.  On 9 February 2012, the applicant accepted SELCON on the RASL.

7.  Orders C-06-290472, issued by HRC, dated 21 June 2012, show the applicant was REFRAD effective 1 August 2012 and assigned to the USAR Control Group (Reinforcement).

8.  The applicant's DD Form 214 shows he was REFRAD on 1 August 2012.

9.  Orders C-08-212036, issued by HRC, dated 17 August 2012, show the applicant was voluntarily released from the USAR Control Group (Reinforcement) and assigned to the U.S. Army Civil Affairs and Psychological Operations Command (USACAPOC) (Airborne), Fort Bragg, NC, effective 14 August 2012.

10.  Orders B-10-206064, issued by HRC, dated 2 October 2012, show the applicant was promoted to LTC, effective 28 August 2012.

11.  During the processing of this case, on 12 February 2013, an advisory opinion was obtained from the Chief, Leader Development Division, HRC.  The advisory official recommended that no administrative action be taken at this time. 

12.  The official stated on 30 January 2012, HRC notified the applicant of his second non-selection for LTC and his status of SELCON on the RASL.  The applicant responded on 9 February 2012 with his election to remain on the RASL and continue his service.  He received his REFRAD orders on 21 June 2012 with a release date of 1 August 2012.  The FY 2012 LTC, APL RC Selection Board was held during this time and selected the applicant for promotion.  The results of the board were not approved until 28 August 2012, 27 days after he had already been removed from the AGR Program.  Although the applicant was selected for promotion prior to his REFRAD from the AGR Program, the board was not approved until after his REFRAD, resulting in the applicant being a promotable LTC on the RASL.
13.  On 11 March 2013, the applicant provided a rebuttal to the HRC advisory opinion.  The applicant states he was promoted on the FY 2012 LTC, APL RC Selection Board in an AGR competitive category with sequence number 1.  While it is true that the board results were not approved until 28 August 2012, it is also true that the board selection process was completed on 14 June 2012 and that his name was on the AGR promotion list.  The applicant states he should have been allowed to remain on AGR orders until after the FY 2012 board was published and released.  The applicant asserts in the event he was not on the promotion list, the REFRAD process was to continue; but in the event he was on the promotion list, he would remain in the AGR status.  The decision to promote him was made well in advance of the REFRAD date.  It was only the delay in publishing and releasing the promotion list that caused his REFRAD.

14.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) provides policy and procedures for the selection and promotion of commissioned officers of the Army National Guard of the United States ARNGUS and the USAR.

	a.  Paragraph 4-21 states except as provided elsewhere in this regulation, the effective date of promotion may not precede the date of the promotion memorandum.  An officer is promoted after selection if all qualifications for promotion are met.  When an officer does not meet the qualifications for promotion, the effective date of promotion will not be earlier than the later date all qualifications are met.  In no case will the DOR or effective date of promotion be earlier than the date the board is approved, or, if required, the date of Senate confirmation.

	b.  Paragraph 4-21d states AGR officers selected by a mandatory board will be promoted provided they are assigned/attached to a position in the higher grade.  An AGR officer who is selected for promotion by a mandatory promotion board, but who is not assigned/attached to a position in the higher grade will be promoted on the date of assignment/attachment to a higher graded position or the day after release from AGR status.

	c.  Paragraph 4-34 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 Secretary of the Army may direct a SELCON board to consider officers for continuation when required by the needs of the Reserve of the Army.  A 
SELCON Board must recommend the officers for continuation and the Secretary of the Army 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 captain (CPT) and MAJ will normally be for 3 years from the approval date of the SELCON 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).

15.  Army Regulation 135-18 (The Active Guard Reserve (AGR) Program), Table 2-6 states a Soldier is ineligible for subsequent duty in the AGR Program if the Soldier is being processed for involuntary release from AD for separation because of non-selection for promotion by a mandatory officer promotion board convened by HQDA, unless subsequently selected.

16.  Title 10, U.S. Code, sections 14506 (effect of failure of selection for promotion) states unless retained as provided in section 14701 (SELCON) 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 RASL, 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.

17.  DCS, G-1, Officer Selection Board Policy Branch SOP, dated October 2009, states in paragraph 8-2 the SA is the convening and approval authority for centralized selection boards conducted to recommend officers for SELCON on the active duty list (ADL) or the RASL and warrant officers on the ADL.  The decision to implement SELCON is based on the needs of the Army. 

18.  Paragraph 8-3 of the SOP discusses Active Component SELCON.  It states an ADL officer may be continued on active duty if selected for SELCON.  Paragraph 8-3d states, except as otherwise provided, an ADL officer who holds the regular grade of MAJ in the Army, and who is subject to discharge or retirement in accordance with Title 10, U.S. Code, section 632 may not be continued on active duty under Title 10, U.S. Code, section 637(a)(3) for a period which extends beyond the last day of the month in that he or she completes 24 years of active commissioned service unless he or she is promoted to the regular grade of LTC. 

19.  Paragraph 8-4 of the SOP discusses Reserve Component SELCON.  None of the subparagraphs available (8-4a – 8-4h) with the provided document mention retention on active duty.

20.  U.S. Army War College (USAWC) Academic Policies and Procedures states military students are selected to attend the USAWC by their respective Services. Selected students are considered to hold considerable potential for promotion and future service in positions of increasing responsibility.  Officers are eligible for attendance after being promoted to LTC, through their 25th year of service. Applicants must have completed the Command and General Staff College, or equivalent, and should possess a baccalaureate degree. Students are centrally selected by their component, thus USAWC receives its list of students by component, rather than receiving and processing individual applications.  Within the USAR, the Chief, Army Reserve convenes a board annually that selects and ranks by competitive category qualified officers.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be reinstated in the AGR Program at the rank of LTC with a DOR of 28 August 2012.  Evidence of record shows the applicant was serving as a MAJ on the AGR Program.  He was twice non-selected for promotion to LTC, and in accordance with Army Regulation 135-18 and Title 10, U.S. Code, section 14506 he was separated from the AGR Program

2.  The applicant argues that in accordance with the DCS, G-1, Officer Selection Board Policy Branch SOP, dated October 2009, he should have been retained on active duty as a MAJ until his 24-year active commissioned service date.  This 
particular policy applies to active component officers on the ADL.  He was not on the ADL; he was on the RASL.  Therefore it is not applicable to the applicant.

3.  Evidence of record shows that on 30 January 2012 the applicant was notified by memorandum that the Secretary of the Army approved the SELCON Board recommendation for him to continue in his present grade in the USAR on the RASL.  On 9 February 2012, he accepted SELCON on the RASL.  On 1 August 2012, he was REFRAD and assigned to the USAR Control Group (Reinforcement).  After his REFRAD, the list for promotion to LTC that included his name was approved.  Consequently, he was promoted to LTC on the RASL with an effective date of 30 August 2012.

4.  In accordance with the governing regulation in no case will the DOR or effective date of promotion be earlier than the date the board is approved.  The 

applicant was REFRAD by operation of law on 1 August 2012; the board was not approved until 28 August 2012.

5.  The applicant further requests:

* recovery of all retirement points
* back pay as of 1 August 2012 with no financial penalties
* PCS orders to post of choice
* orders to attend the resident Army War College

6.  The applicant was REFRAD from the AGR Program after being twice non-select for promotion as provided for by the governing regulation.  He was selected for continuation on the RASL.  There is no evidence that shows his REFRAD from the AGR Program was not proper and equitable.  Therefore, there is no basis for awarding him retirement points and back pay as of 1 August 2012 for AGR service he did not perform.

7.  Based on the fact it appears he was properly REFRAD from the AGR Program, there appears to be no basis on which to give him PSC orders.

8.  U.S. Army War College students are centrally selected by their component.  The Chief, Army Reserve convenes a board annually that selects and ranks by competitive category qualified officers.  The applicant should check with his USAR representative on the procedures on selection for the U.S. Army War College.

9.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20120022351



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ABCMR Record of Proceedings (cont)                                         AR20120022351



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