IN THE CASE OF:	   

		BOARD DATE:	  8 October 2013

		DOCKET NUMBER:  AR20130001928 


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 revocation of his discharge and reinstatement in the U.S. Army Reserve (USAR) in the rank of major (MAJ)/pay grade O-4, retirement point credit, all pay and allowances retroactive to the date of his discharge, and consideration for promotion to the rank of lieutenant colonel (LTC)/pay grade O-5 by a special selection board (SSB).

2.  The applicant states he began working with the Army Central Clearance Facility (ACCF) to renew his security clearance in 2001.

   a.  A security clearance investigation was opened based on a personal disclosure, the matter was resolved, and the investigation closed in March 2002.

   b.  He transferred from the Individual Ready Reserve (IRR) to an Individual Mobilization Augmentee (IMA) status in 2007 to expedite renewal of his security clearance.  He occupied an IMA position for 3 years, but was unable to train.  

   c.  In November 2010, he learned that he was granted a security clearance in July 2010.  He was informed that the security clearance process was prolonged due to the increased number of deployments and also the requirement for additional supporting documentation in the security clearance process.

   d.  In his case, the process took approximately 8 years.  This affected his ability to perform temporary duty, attend unit drill and annual training, and to complete the educational requirement for promotion.

   e.  In late 2010, he contacted his professional management officer (PMO) to enroll in resident/non-resident Intermediate-Level Education (ILE).  Personnel turnover in the PMO position and a heavy workload delayed his enrollment into ILE until October 2011 (Phase I) and November 2011 (Phase II).  He completed both phases and is prepared to complete ILE (Phase III).

3.  The applicant provides the following documents:

* email messages (between applicant and PMO)
* Fort Jackson Form 350-100-10 (Diploma)
* DA Form 705 (Army Physical Fitness Test (APFT) Scorecard)
* two DA Forms 67-9 (Officer Evaluation Reports (OERs))
* discharge orders
* two letters of support

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior honorable enlisted service in the USAR from
9 February 1985 through 26 May 1988.

2.  He was appointed as a Reserve commissioned officer, in the rank of second lieutenant, on 27 May 1988.  Upon completion of training he was branch detailed in Finance.

3.  He completed the Finance Officer Advanced Course (FAOC) Phase I in 1999 and FAOC Phase II in 2001.

4.  USAR Personnel Command, St. Louis, MO, Orders C-05-212140, dated 
1 May 2002, released the applicant from the USAR Control Group (Reinforcement) and assigned him to a mobilization position at the U.S. Total Army Personnel Command, Alexandria, VA, effective 1 May 2002.  The orders show he was granted an interim Secret clearance.

5.  The applicant was promoted to MAJ (O-4) on 10 February 2005.

6.  U.S. Army Human Resources Command (HRC), St. Louis, MO, orders show the following:

   a.  Orders C-12-640092, dated 27 December 2006, released the applicant from the USAR Control Group (Reinforcement) and assigned him to the Standby Reserve (Inactive List) on 27 December 2006 because he made no military service obligation election.  The orders show "Security Clearance:  Revoked/ Denied."
   b.  Orders C-07-721980, dated 10 July 2007, released the applicant from the Standby Reserve (Inactive List) and assigned him to the USAR Control Group (Reinforcement) on 10 July 2007.  The orders show "Security Clearance:  Revoked/Denied."

   c.  Orders C-07-723318, dated 25 July 2007, released the applicant from the USAR Control Group (Reinforcement) and assigned him to a mobilization position at the U.S. Army Soldier Support Institute, Fort Jackson, SC, effective 
25 July 2007.  The orders show "Security Clearance:  Revoked/Denied."

   d.  Orders C-10-113550, dated 3 October 2011, released the applicant from a mobilization position and assigned him to the USAR Control Group (Reinforcement) effective 1 October 2011.  The orders show "Security Clearance:  Secret."

   e.  Orders C-12-118138, dated 19 December 2011, released the applicant from the USAR Control Group (Reinforcement) and assigned him to a Troop Program Unit effective 13 December 2011.  The orders show "Security Clearance:  Secret."

7.  Headquarters, 63rd Regional Support Command, Mountain View, CA, memorandum, undated, subject:  Options Upon Nonselection for Promotion After Second Consideration, shows the Chief, Reserve Personnel Service Center, informed the applicant he had been considered twice for promotion to the next higher grade by the Army Reserve Components Selection Board and he was not selected.  Thus, his transition from an active status was mandatory.  It also shows he must be separated not later than the first day of the seventh month following the President's approval of the board results.  The applicant was given a suspense date of 1 May 2012 to submit his Reserve Status Statement and Election of Options.  (A copy of the applicant's Election of Options is not in the available records.)

8.  Headquarters, USAR Command (USARC), Fort Bragg, NC, 
Orders 12-178-00014, dated 26 June 2012, honorably discharged the applicant from the USAR in accordance with Army Regulation 135-175 (Separation of Officers) effective 1 August 2012.

9.  In support of his request, the applicant provides the following documents:

	a.  email messages between the applicant and his PMO that show on:

* 14 September 2010, the PMO advised the applicant that records did not show the applicant was educationally qualified for the upcoming promotion board and that an officer who is non-educationally qualified for promotion has no chance of being selected for promotion
* 22 December 2010, the applicant provided information about his security clearance
* 27 December 2010, the PMO provided a list of duty positions
* 30 January 2011, the applicant requested enrollment in ILE
* 17 August 2011, the applicant requested ILE information
* 23 August 2011, the applicant requested attendance at ILE (Phase I)
in October 2011
* 23 August 2011, the PMO apologized for any delay and assured the applicant the documentation for ILE would be completed upon receipt

   b.  U.S. Army Soldier Support Institute, Fort Jackson, SC, Diploma, that shows the applicant completed the Staff and Faculty Development Training Course (Instructor - Developer) on 22 September 2011.

   c.  APFT Scorecard that shows, on 28 September 2011, the applicant passed the APFT and met Army Weight Control Program standards.

   d.  An OER for the period 1 April 2011 through 1 October 2011 that shows the applicant's principal duty was Senior Instructor/Writer.  The rater rated his performance and potential as "Outstanding Performance, Must Promote."  The senior rater rated his potential for promotion as "Best Qualified" with a "Center of Mass" rating compared to that of other USAR MAJs rated by the senior rater.

   e.  An OER for the period 13 December 2011 through 31 July 2012 that shows the applicant's principal duty was Chief, Operations and Maintenance Army Reserve.  The rater rated his performance and potential as "Outstanding Performance, Must Promote."  The senior rater rated his potential for promotion as "Best Qualified" with a "Center of Mass" rating compared to that of other USAR MAJs rated by the senior rater.

   f.  A letter from Ms. Yvette C--- D---, Director of Licensing and Compliance, dated 20 January 2012, that shows the applicant was employed as a Loan Originator with Southwest Funding, Limited Partnership (LP), Dallas, TX, from January 2007 to May 2010 and that he was a valuable and loyal employee.

   g.  A letter from Mr. Bob S---, Branch Manager, dated 4 September 2012, that shows the applicant was employed as a Sales Consultant with Guttermaxx, LP, Houston, TX, for approximately 18 months.  The branch manager recommends the applicant's reinstatement and consideration for promotion.

10.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Management Division, USARC, Fort Bragg, NC.

   a.  The advisory official offered that the request should be redirected to the Office of Reserve Component Promotions for a determination on the applicant's request for consideration by an SSB.  Until such time that the applicant is considered and recommended for promotion, USARC had no authority to revoke his separation order since his removal was dictated by Title 10, U.S. Code, section 14506 (10 USC 14506).

   b.  In the absence of such, the advisory official recommends disapproval of the applicant's request for reinstatement in the rank of MAJ.

   c.  He added that the applicant was a non-select for promotion by both the Fiscal Year 2010 (FY10) and FY11 LTC Army Promotion List (APL) Reserve Component (RC) Promotion Selection Boards (PSBs) Non-Active Guard Reserve.  The reason for his non-selection was failure to meet military education requirements for promotion consideration to LTC.

   d.  The applicant was not selected for Selective Continuation.  In addition, he had only completed four (4) qualifying years for retired pay, which made him ineligible for Reserve Sanctuary.  Since there were no other provisions of law to authorize his retention, the applicant was discharged in accordance with 
10 USC 14506 and Army Regulation 135-175, paragraph 4-4a(5)(b), based on removal from an active status due to non-selection for promotion after second consideration.

   e.  The advisory official offered that the applicant may consider to continue military service by applying for reappointment.  If accepted and approved, his years of commissioned service will continue from the point of separation.  Once he completes 12 months on the reserve active-status list, he will be competing for promotion.  Should he not be selected for promotion by two promotion boards, he will be subject to separation action again.

11.  An advisory opinion was also obtained from the Chief, Officer Promotions - Special Actions, HRC, Fort, Knox, KY.

   a.  The advisory official states that, based on review, the applicant's request for reconsideration of promotion does not have merit.

   b.  He states the applicant was released from the USAR due to being a two-time non-selectee for promotion (in part) based on not being educationally qualified during promotion consideration.  He added there is no record the applicant met the education requirements or requested an education waiver.

12.  On 25 April 2013, the applicant was provided copies of both advisory opinions to allow him the opportunity to submit comments or a rebuttal.  To date, the applicant has not provided a response.

13.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), Chapter 2 (Promotion Eligibility and Qualification Requirements), Table 2-2 (Military Education Requirements  Commissioned Officers, Other Than Commissioned Warrant Officers), shows the requirement for promotion from MAJ to LTC is 50 percent of the Command and General Staff Officers Course (CGSOC).

14.  Army Regulation 350-1 (Army Training and Leader Development) provides policy and guidance for Army training and leader development, and supports a full-spectrum, force protection, expeditionary Army.  Chapter 3 (The Army Institutional Training and Education System), paragraph 3-34, shows that ILE replaced CGSOC.  The ILE consists of a common core curriculum that includes Joint Professional Military Education, Phase 1, requirements and the required Branch and/or Functional Area specialized education or qualification course.

15.  Army Regulation 600-8-29 (Officer Promotions) prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the Active Duty List.

   a.  Chapter 3, paragraph 3-7 (Cases not considered), provides that it is the officer's responsibility to review his or her Officer Record Brief (ORB) and Army Military Human Resource Record (AMHRR) before the board convenes and to notify the board, in writing, of possible administrative deficiencies in them; and

   b.  Chapter 7, paragraph 7-11 (Rules for processing requests for SSB promotion reconsideration), provides that officers who discover that material error existed in their file at the time they were nonselected for promotion may request reconsideration.

16.  United State Code, Title 10, section 14505, provides that unless retained as provided in section 12646, 12686, 14701, or 14702 of this title, a major on the reserve active-status list of the Army, Air Force, or Marine Corps or a lieutenant commander 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, shall be separated in accordance with section 14513 of this title not later than the first day of the month after the month in which the officer completes
20 years 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.  Army Regulation 15-185 (Army Board for Correction of Military Records [ABCMR]) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be revoked and he should be reinstated in the USAR in the rank of MAJ (O-4) with retirement point credit, all pay and allowances retroactive to the date of his discharge, and consideration for promotion to the rank of LTC (O-5) by an SSB.

2.  The evidence of record shows the applicant was promoted to MAJ (O-4) in February 2005.  Subsequent to this, for reasons that are not clear, his security clearance was revoked.

   a.  In 2010, an ACCF official informed him that the security clearance process (in general) was prolonged during this period due to additional administrative requirements that were imposed and the increased number of deployments.  
Thus, it is reasonable to conclude that all Soldiers were affected by prolonged security clearance processing times.

   b.  The applicant's security clearance was granted in July 2010.  He initially contacted HRC officials for enrollment in ILE in January 2011 and he completed ILE (Phases I and II) in November 2011.
   
   c.  Therefore, given the facts of this case, there does not appear to be error or injustice in this instance.

3.  The applicant was a non-select for promotion by both the FY10 and FY11 LTC APL RC PSBs due to (in part) failure to meet military education requirements for promotion consideration to LTC and he was discharged.


4.  The evidence of record shows the applicant's discharge from the USAR on
1 August 2012 under the provisions of Army Regulation 135-175, 
paragraph 4-4a(5)(b) and 10 USC 14506, for non-selection for promotion after a second consideration was proper.  In the absence of evidence to the contrary, it is concluded that all requirements of law and regulations were met throughout the separation process.  Therefore, he is not entitled to revocation of his discharge or reinstatement in the USAR in the rank of MAJ (O-4).

5.  The governing regulation provides that an officer will not be reconsidered for promotion by an SSB when an administrative error was immaterial, or the officer, in exercising reasonable diligence (emphasis added), could have discovered and/or corrected the error.

   a.  There is no evidence the applicant met the education requirement for promotion to LTC or that he requested an education waiver.

   b.  Thus, there is no evidence that supports the applicant's reconsideration for promotion by an SSB.

6.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.  The applicant fails to provide such evidence.  As a result, considering all the facts of the case, the applicant's discharge from the U.S. Army is presumed proper and equitable.

7.  In view of the foregoing, there is no 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)                                         AR20130001928



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ABCMR Record of Proceedings (cont)                                         AR20130001928



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