BOARD DATE:	  19 November 2013

		DOCKET NUMBER:  AR20130002086 


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 an investigation into the promotion board process for the 2012 Colonel/O-6 Army Promotion List (APL) at the Department of the Army secretariat level.  He also requests reinstatement on active duty to accept his promotion when his sequence number is selected.

2.  The applicant states:

	a.  The promotion board published their results 2 months after the prescribed timeline causing the release of the promotion list after his retirement date.

	b.  The opportunity to continue his service and to be promoted was never afforded to him due to the board not meeting their published requirements.

	c.  Per Military Personnel (MILPER) Message 12-105 United States Army Reserve (USAR) Colonel APL Board, he met all of the requirements to be considered for promotion to include the mandatory 90 days remaining in service from the convening date of 9 July 2012.

	d.  The board should have released the results prior to his retirement date of 1 November 2012, which would have given him the opportunity to request revocation of his retirement order and allowed him to continue to serve on active duty and to accept his promotion.

	e.  Sometime in September 2011, he was notified that he was receiving a permanent change of station (PCS) in May or June 2012 and he had only been stationed for 3 years at that point.

	f.  He advised his manager that the 2012 Colonel APL Board was his primary look and that he had a competitive file, he did not want to PCS his family possibly twice in less than a year, and desired to remain at his current assignment until the board’s published release date of 9 October 2012.

	g.  His manager still required him to PCS; therefore, he delayed his decision until November 2011 so that he could request a retirement date of 1 November 2012, which would have been after the release of the promotion board's results thus allowing him the ability to revoke his retirement and continue to serve.

	h.  He has a set of 7-year old twins who would have had to be placed in three different school within a year and a wife with multiple sclerosis who would have had to find new doctors to treat her condition in two different locations.

	i.  According to the MILPER Message "Officers that have an approved separation within 90 days of the convene date of the boards are not eligible for consideration by these selection boards (Title 10 United States Code (U.S.C.) 14301).  Officers affected by this policy have an approved separation date on or before 7 October 2012."

	j.  The board/process failed to complete their requirements in accordance with the required timeline and as a result, he was not afforded the opportunity to make the decision of remaining on active duty.

	k.  He is not contesting any finance or personnel regulation that says he cannot be brought back on active duty once he has retired.  He is only contesting that the board process was negligent in conducting, compiling, approving, and publishing the promotion list within the 90-day period.

	l.  All of his actions from the time he was contacted by his branch back in September 2011 were to stretch out his timeline so it would fall in line with the board results.

	m.  The promotion board members agreed that his performance and future potential was above his peers and he should have the opportunity to accept his promotion and continue his career.


3.  The applicant provides:

* Self-authored Statement, dated 19 December 2007
* MILPER Message Number 12-105, dated 3 April 2012
* U.S. Army Human Resources Command (AHRC) Orders P-12-190262, dated 12 December 2011
* AHRC Orders P-12-190262R, dated 20 December 2012
* AHRC Orders P-01-390001, dated 3 January 2013

CONSIDERATION OF EVIDENCE:

1.  With 23 years, 10 months, and 26 days of total active service, the applicant was released from active duty as a member of the Active Guard Reserve (AGR) on 31 October 2012, in the rank of lieutenant colonel (O-5).  He was placed on the Retired List on 1 November 2012.

2.  During the processing of this case an advisory opinion was obtained from the AHRC, Chief, Officer Promotions who recommends denial of the applicant's requests and states the following:

	a.  The applicant’s assertion that he met all the requirements to be considered for promotion by the Fiscal Year (FY) 2012, O-6, APL, Promotion Selection Board (PSB) to include the mandatory 90 days remaining in service from the convening date requirement, but was subsequently penalized based upon the respective board results being delayed and subsequently published 2 months after his established retirement date, is without merit.

	b.  The applicant was clearly eligible for board consideration based upon his approved voluntary retirement of 1 November 2012 being more than 90 days from the respective convene date of the board, 9 July 2012 as established by Title 10, U.S.C., section 14301.

	c.  The applicant erroneously referenced MILPER Message 12-105, FY 2012 O-6, Army National Guard (ARNG), Army Reserve AGR and Army Reserve Non-AGR) APL, Competitive Categories, PSB, as grounds for his injustice.  Yet, while the MILPER Message does address the above referenced 90-day rule, it does not explicitly state or imply that the promotion board will be released within a 90-day window.

	d.  Title 10, U.S.C., section 14308, and Department of Defense Instruction (DODI) 1320.4 require the President (or his designee) to approve the respective promotion list followed by Senate confirmation for all Reserve O-6 or higher promotion boards, but does not reference a 90-day approval requirement.  It is true that the average processing time from the recess of a particular board to the final approval is 90 to 120 days.  However, the failure to meet the respective average processing time does not imply that the associated promotion process should be investigated or is at fault in this case.

	e.  Finally, at any time prior to his approved retirement date but no later than, the applicant could have requested that his retirement date be either amended or revoked to await the results of the selection board if he so desired.  However, in the applicant's case he waited until approximately 6 weeks after the approved retirement date when the subsequent board results were released to request his retirement be revoked which is not permissible nor established by Army Regulation 600-8-24, paragraph 6-3(c).  Again, the applicant's lack of knowledge or due diligence does not negatively impact on the sanctity of the promotion board process or imply that the respective process is at fault.

3.  A copy of the advisory opinion was forwarded to the applicant for his information and possible rebuttal.  As a result, he obtained counsel requesting the following on his behalf:

* Void the applicant's retirement
* Reinstate the applicant on active duty
* Reinstate the applicant's promotion to O-6 with an effective date of 1 July 2013
* Grant all back pay and allowances in the grade of O-6 from the date of the applicant's retirement to the date of his reinstatement

4.  In the rebuttal to the advisory opinion, the applicant's counsel states:

	a.  But for slow processing of the promotion list by the Department of the Army agencies, the applicant would not have retired.

	b.  Slow processing caused the applicant to make a decision with blinders on with no respect to his retirement.  For that reason, the retirement should be considered involuntary.

	c.  Processing rules regarding promotion lists are more than aspirational and they bind the government.

	d.  Relief should be granted as a matter of equity.

5.  In the rebuttal to the advisory opinion, the applicant's counsel cites decisions made in previous court cases.  He provides copies of MILPER Message Number 12-105, issued 3 April 2012 and Army Regulation 15-185 (Army Board for Correction of Military Records).

6.  The Reserve Officer Personnel Management Act (ROPMA) was enacted into law by Congress and signed into law by the President on 5 October 1994.  The ROPMA became fully effective on 1 October 1996 and its primary objectives were to update and consolidate those laws governing Reserve Component (RC) officers; to achieve uniformity and compatibility with the management practices applied to active component officers; and to govern all aspects of the personnel management of RC officers. 

7.  Promotion procedures were significantly changed by ROPMA.  The procedural changes that pertain to how RC officers were promoted were codified in Title 10 U.S.C., section 14308.  This provision of the law states that upon approval by the President of a promotion board report, the report becomes a promotion list and officers are placed on the list in order of seniority.  It also indicates that the President’s approval establishes the public release date for the list and is the earliest possible effective date of promotion for officers on that list.  

DISCUSSION AND CONCLUSIONS:

1.  The contentions made by the applicant and his counsel have been noted.  Their supporting evidence has been considered.  The available evidence does not support the contentions made by him or his counsel.

2.  The available evidence shows that the applicant voluntarily submitted his retirement packet on 7 November 2011 and he was placed on the Retired List on 1 November 2012.  The contention that there was only a 90-day window by which the PSB had to publish its results is without merit.  The President’s approval establishes the public release date for the list and is the earliest possible effective date of promotion for officers on that list.  

3.  The applicant admits that he had no desire to PCS; therefore, he delayed his decision to retire until November 2011 so that he could request a retirement date of 1 November 2012.  If he desired to remain on active duty, he could have done so prior to his approved retirement date by requesting that his voluntary retirement be revoked.  He waited until the board results were released and then he determined he no longer wished to retire as scheduled.

4.  The contentions made by the applicant and his counsel that he would not have retired had the PSB results been published within a 90-day window is speculation at best as he still would have been required to PCS.  

5.  The overall merits of the case are insufficient as a basis for the Board to grant relief.

6.  The Board is not an investigative body and the burden of proving an error or injustice rests with the applicant and/or his counsel.

7.  In view of the foregoing, the applicant's and his counsel's requests should be denied.

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)                                         AR20130002086





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ABCMR Record of Proceedings (cont)                                         AR20130002086



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