IN THE CASE OF:	  

		BOARD DATE:	    25 July 2013

		DOCKET NUMBER:  AR20130000081 


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 as follows:

* revoke Orders 12-228-00030, issued by Headquarters, U.S. Army Reserve Command (USARC), Fort Bragg, NC, on 15 August 2012, honorably discharging him from the USAR
* reinstate him to Reserve Active Status List
* promote him to major (MAJ) per the Fiscal Year 2012 MAJ Army promotion list that was released on 8 November 2012 

2.  The applicant states 

	a.  As a result of the delay of the MAJ Board Results stated in Military Personnel (MILPER) Message Number 12-208, issued on 5 July 2012, Subject: Administrative Delay of Release of the Fiscal Year (FY) 2012, Major (MAJ) Army Promotion List (APL), Army National Guard of the United States (ARNGUS), Army Reserve Active Guard Reserve (AR-AGR) and Army Reserve Non-Active Guard Reserve (AR NON-AGR), Competitive Categories, Promotion Selection Boards, he was prematurely discharged from the USAR.  Item number 2 of the MILPER Message announced the further delay of the results for the FY 2012 MAJ APL PSB until the early to mid-August 2012 timeframe.  

	b.  He received an honorable discharge from Headquarters, USARC on discharge Order Number 12-228-00030 effective 15 September 2012 due to mandatory requirements for a maximum time in the grade of captain (CPT)/O-3 for 20 years from his officer commission date.  Based on historical data on previous board results and MILPER Message 12-208, dated 5 July 2012, his board results should have posted no later than mid-August which would have preceded the separation order dated 15 September 2012.  On 8 November 2012, the FY12 MAJ APL AGR and Non-AGR Selection List was published.  In the Non-Active Guard Reserve and Army National Guard Competitive Categories, he was listed on the promotion list on page 9, line/item number 23.

	c.  His board packet was submitted in accordance with board specification requirements with all necessary and required documents placed in his electronic board file prior to 1 January 2012.  Upon completion of the FY12 MAJ board reconvening per MILPER Message 12-208, he was selected for promotion to the rank of MAJ.  Because of the "Further Delay" of the publishing of the board results, he was discharged prior to selection to MAJ which, in turn, resulted in his honorable discharge from the USAR.

	d.  Due to the delayed results of the FY12 MAJ APL, he was not afforded the opportunity to continue his honorable service in the USAR.  It is his desire to be rightfully reinstated to an Active Army Reserve status at his recently-promoted rank of MAJ.  He met the required criteria for selection to field-grade level; however, situations beyond his control determined his premature discharge from the USAR that he loyally served.  Revocation of his honorable discharge order effective 15 September 2012 will allow him to continue to serve affording him and his family all rights and benefits currently provided to other service members of the USAR.

3.  The applicant provides:

* MILPER Message 12-208
* Orders 12-228-00030
* Résumé
* FY12 MAJ APL AGR and Non-AGR Selection List
* Letter of recommendation
* DA Form 67-9 (Officer Evaluation Report)

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on xx November 1968. 

2.  His records show he was appointed as a Reserve commissioned officer and executed an oath of office on 3 July 1992.  He completed the Quartermaster Officer Basic Course. 

3.  He served in a variety of staff or leadership assignments and he was promoted to CPT on 20 March 2001.  He entered active duty on 1 June 2007 in support of ongoing operations and he was honorably released from active duty on 29 May 2009. 

4.  On 3 July 2007, while mobilized, the U.S. Army Human Resources Command (HRC), then in St. Louis, MO, notified him that his records were considered for promotion to MAJ by a Reserve Components Selection Board (RCSB) that convened in March 2007 but he was not selected for promotion. 

5.  It appears he was also considered by a second mandatory RCSB in 2008 but he was again not selected for promotion.  It also appears he was considered for selective continuation by the FY08 Selective Continuation (SELCON) Board and he was recommended for retention to attain 20 years of service. 

6.  He completed the Ordnance Captains Career Course on 16 December 2011.  

7.  The FY12 MAJ APL ARNGUS, AR-AGR, and AR Non-AGR Promotion Selection Board was held from 30 January to 15 February 2012 and the results should have been released in late May or early June 2012, based on the typical 90 to 120 days for administrative processing.  

8.  On 29 May 2012, by order of the Assistant Secretary of the Army (Manpower and Reserve Affairs), the FY12 MAJ APL PSB reconvened due to erroneous considerations.  As a result, the release date was delayed by an additional 30 to 45 days. 

9.  On 5 July 2012, HRC, now at Fort Knox, KY, published MILPER Message 12-208 announcing a further delay in the release of the results of the FY12 MAJ APL ARNGUS, AR-AGR, and AR Non-AGR PSB to early or middle of August 2012.  

10.  On 15 August 2012, Headquarters, USARC, Fort Bragg, NC, published Orders 12-228-00030 honorably discharging him from the USAR effective 15 September 2012. 

11.  On 8 November 2012, the FY12 MAJ APL ARNGUS, AR-AGR, and AR Non-AGR PSB was officially released.  The applicant's name was one of those selected for promotion. 

12.  An advisory opinion was received on 8 March 2013 from the Office of Personnel Management Division, USARC, in the processing of this case.  An advisory official recommended disapproval of the applicant's request for the following reasons:
	a.  In accordance with Title 10, U.S. Code, Section 14505, Army Reserve officers in the grade of CPT who are twice non-selected for promotion to the next higher grade shall be removed on the first day of the seventh month after the month in which the President approved the board unless the officer is retained under another provision of law.  Under Title 10, U.S Code, Section 14701, a Reserve officer who holds the grade of CPT in the Army and who is subject to separation under section 14513 of this title may be continued on the Reserve Active-Status List until the officer completes 20 years of commissioned service. 

	b.  The applicant was twice non-selected for promotion by the FY07 and FY08 promotion boards.  He was selected for SELCON by the FY08 CPT APL SELCON board which allowed his retention until he completed 20 years of commissioned service.  He was commissioned on 3 July 1992 and completed 20 years of commissioned service on 31 July 2012, at which time he should have been removed from the Army Reserve.  Due to an administrative error, he was not removed in a timely manner.  Upon discovery of the oversight he was discharged effective 15 September 2012.

	c.  The FY12 Reserve Component MAJ Promotion Selection Board convened on 13 August 2012 and the results were approved on 19 October 2012.  However, due to the statute that required his removal, the applicant was not eligible for promotion consideration to MAJ.  His separation was dictated by law and there is no statutory provision which allows retention/reinstatement.  

	d.  If and when he completes his required educational requirements, he may desire to reapply for a commission.  He has been furnished a reappointment checklist by the USARC G-1 to assist in this process.  Another option available to him to continue his service would be to apply for enlistment.  Either option would depend upon him meeting all legal, moral, and medical standards along with the needs of the service.

13.  The applicant was provided with a copy of this advisory opinion but he did not respond.

14.  Title 10, U.S. Code, Section 14505 states unless retained as provided in section 12646 or 12686 of this title, a captain on the reserve active-status list of the Army, Air Force, or Marine Corps or a lieutenant on the reserve active-status list of the Navy who has failed of selection for promotion 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 and who has not been selected for continuation on the reserve active-status list under section 14701 of this title, shall be separated in accordance with section 14513 of this title not later than 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.   

15.  Title 10, U.S. Code, section 14701, states a reserve officer of the Army, Navy, Air Force, or Marine Corps who is required to be removed from the reserve active-status list under section 14505, 14506, or 14507 of this title may, subject to the needs of the service and to section 14509 of this title, be considered for continuation on the reserve active-status list under regulations prescribed by the Secretary of Defense.  A reserve officer who holds the grade of captain in the Army, Air Force, or Marine Corps or the grade of lieutenant in the Navy and who is subject to separation under section 14513 of this title may not be continued on the reserve active-status list under this subsection for a period which extends beyond the last day of the month in which the officer completes 20 years of commissioned service

DISCUSSION AND CONCLUSIONS:

1.  The applicant was appointed as a commissioned officer on 3 July 1992.  He was promoted to CPT on 20 March 2001.  When he attained the required years of service in grade he was considered for promotion to MAJ by a mandatory promotion board in 2007 as well as in 2008 but he was not selected by either board.  As such, his removal from active status was required by law. 

2.  However, the FY08 SELCON board selected him for retention until completion of 20 years of commissioned service.  Given his rank of CPT and his commissioning date of July 1992, his separation date was established as July 2012.  For unknown reasons, he was not removed from the USAR until 15 September 2012. 

3.  When the FY12 MAJ Promotion Selection Board convened, the applicant was ineligible for promotion consideration.  However, despite his erroneous consideration for promotion, the board that selected him for promotion was approved in October 2012 and released in November 2012.  He was no longer on the Reserve Active Status List by then due to the statutory requirement to remove him.  

4.  On the surface, the applicant appears to have suffered an injustice related to the "timing" of the promotion board and its release.  However, the fact of the matter is that his discharge was dictated by law and there is no statutory provision which allows retention/reinstatement.  Regretfully, he is not entitled to any of 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)                                         AR20130000081





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ABCMR Record of Proceedings (cont)                                         AR20130000081



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