IN THE CASE OF:	  

		BOARD DATE:  14 November 2013

		DOCKET NUMBER:  AR20130003421 


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 the following:

* Revocation of her retirement orders
* Reinstatement on the Reserve Active Status List (RASL)
* Promotion consideration to lieutenant colonel (LTC) by a Special Selection Board (SSB) 

2.  The applicant states:

   a.  In effect, she was considered and not selected for promotion to LTC as she was considered not educationally qualified (NEQ).  Her military records were corrected within two weeks of her notification of the problem.  The Army made an oversight by never advising her of the reason for her non-selection for promotion and not providing her with counseling.  Thus, she was denied the ability to correct any misconceptions earlier.  The Army compounded the error on the second board by inadvertently omitting her name off the lists, making her totally unavailable to all information and feedback.  She received her Master’s Degree in Nursing Education on 15 June 2012. 

   b.  She has had repeated conversations with career management officers over the years and they could not tell her why she was not promoted.  They advised her that her records were in complete compliance and she was educationally qualified for promotion.  She was promoted to major (MAJ) in 2002 based on her Bachelor of Science (BS) Degree in Nursing.  
   c.  An email statement from the U.S. Army Human Resources Command (HRC) stated the reason for her non-selection was an oversight on their part by leaving her name off all lists.  Her transcripts in the integrated Personnel Electronic Records Management System indicate a BS Degree in Nursing as meeting the educational requirements since the omission from the first board.  She did not receive counseling from her units in Iraq and Fort Jackson as to why she was non-selected which would have allowed correction.

3.  The applicant provides:

* three transcripts (illegible)
* Email correspondence between Headquarters, U.S. Army Reserve Command (HQUSARC) and the 81st Reserve Support Command (RSC)
* Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter)
* Request for Continued Service to the Army memorandum
* 2012 retirement orders
* Chronological Statement of Retirement Points

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel defers requests and statements to the applicant and provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed in the USAR, Army Nurse Corps, as a second lieutenant (2LT), on 2 April 1990.  She was promoted to captain (CPT) on 31 July 1995 and to MAJ on 30 April 2002.

2.  She entered active duty in support of Operation Enduring Freedom on 29 March 2009.  She was continued on active duty for the purpose of receiving medical care and treatment.

3.  She provides copies of email correspondence between HQUSARC and the 81st RSC, dated 30 March and 1 April 2010, which stated the applicant was omitted from the Selective Continuation board.  She was non-selected on civilian education.  It seemed that she had a BS degree, but somewhere along their way they were looking for proof the degree was in nursing.  They could not see what her degree was in.  They recommended she request a relook through the Army Board for Correction of Military Records (ABCMR).  They would have no choice but to discharge the applicant (unless she was retained for sanctuary).


4.  On 6 May 2010, she was issued a Twenty-Year Letter.

5.  On 17 September 2010, the HRC, Continuum Services Branch, Medical Section, approved the applicant's early release from active duty with a release date no later than 29 September 2010.

6.  She was honorably released from active duty in the rank of MAJ on 29 September 2010 and she was transferred to a Reserve unit.

7.  She was transferred to the Retired Reserve, in the rank of MAJ, on 16 November 2010.

8.  On 28 December 2010, she submitted a request for continued service in the Army.  In her request, she stated:

   a.  It was her position that the Army erroneously determined that her educational status was “not met” when the promotion board determined she did not hold a BS Degree in Nursing as required.  In doing so, the error was further complicated when she was inadvertently omitted from every list generated by the board and she was not notified of her non-promotional status until such time as when she was told she would need to retire within the month.  

   b.  At the same time the immediate retirement notification was received, she was diagnosed with a serious medical problem and was transferred to the Warrior Transition Unit (WTU) for continued treatment.  She was released from the WTU on 29 September 2010 with her medical issues stabilized and returned to a reserve status with her home unit.  She attended the Battle Assembly with the 865th Command Support Hospital for the months of October and November.  She was forcibly retired on 15 November 2010 in accordance with Title 10, U.S. Code (USC), section 14507.

   c.  She was requesting to be allowed to maintain her active status with the Army for promotion eligibility for LTC.  Her educational status had been determined as “met” by the Special Actions Branch in a letter dated, 14 May 2010, thereby supporting her case that separation action was unwarranted.  She served in Iraq and had been deployed for three out of five years.  Her service to the Army had been exemplary and she had met and/or exceeded all requirements for promotion.  She requested the honor of continuing to serve.

9.  She reached age 60 and was placed on the retired list, in the rank of MAJ, on 24 July 2012.

10.  Her Chronological Statement of Retirement Points, dated 27 March 2013, shows she was credited with 20 years, 7 months, and 14 days of qualifying service for retirement.

11.  In an advisory opinion, dated 29 April 2013, the Chief, Officer Promotions, HRC, stated:

   a.  The applicant’s assertion that her retirement orders should be voided, she be reinstated on the RASL, and placed before an SSB for promotion to LTC has merit.

   b.  The applicant was considered and was not selected by the Fiscal Year 2009 LTC Army Medical Selection Board because she was erroneously considered NEQ.  However, if she had been educationally qualified there is no guarantee that she would have been selected for promotion to LTC.

   c.  The decision to recommend an officer for promotion is based upon the criteria established by the Secretary of the Army and collective judgment of the respective board members as to the relative merit of an officer’s overall record when compared to the records of other officers being considered.  A further review of the applicant’s file concluded that she received five officer evaluation reports (OER) that were "Satisfactory Performance, Promote" and "Fully Qualified" covering the rated periods from 2 April 1998 through 1 April 1999; 2 April 1999 through 1 April 2000; 2 April 2004 through 1 April 2005; 2 April 2005 through 2 April 2006; and 12 June 2006 through 11 June 2007.  It is important to note that the foregoing referenced OERs may have impacted her promotion standing, since the board was a "Best Qualified" promotion board.  Officers deemed "Fully Qualified" are normally ranked in an order of merit based upon their board scores and recommended for promotion up to the respective selection objective (i.e., total number authorized for promotion).

   d.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioner officers.  Paragraph 2-9 of the regulation states all Army Nurse commissioned officers initially appointed on or after 1 October 1986 must possess as a minimum a baccalaureate degree in nursing from an accredited institution recognized by the U.S. Secretary of Education.  The eligibility requirement for that board was that the civilian education requirements entailed Army Nurse Officers appointed before 1 October 1986 and promoted to CPT before 1 October 1995 met the civilian education requirement.  Since the applicant was appointed as a 2LT, Army Nurse, on 2 April 1990, and she was promoted to CPT as of 31 July 1995, she had the required civilian education and should have met the education requirements.
   e.  The applicant should be scheduled for the next available SSB.  However, a legal opinion from HQ, Department of the Army (DA), Deputy Chief of Staff    G-1, to HRC, Officer Promotions, via email states, "The Deputy Assistant Secretary of the Army (Manpower and Reserve Affairs) directed that the practice of granting special boards for "former officers" without directive from the ABCMR be stopped," it further states not to grant special boards for “former officers" who no longer have current military status unless the Secretary of the Army directs via the ABCMR and should the ABCMR direct SSBs for these officers at a later date, they will have to be seen by new SSBs.

12.  On 7 May 2013, the advisory opinion was provided to the applicant for acknowledgment or rebuttal.  In her response, dated 15 May 2013, the applicant stated:

   a.  Her original request was to void her retirement orders, be reinstated, and be given promotion consideration to LTC by an SSB with her records clearly stating her education level as having earned a BS Degree in Nursing as required for progression to LTC (she has in fact earned an MS Degree in Nursing Education).

   b.  Her records were updated within two weeks from notification of the problem in May 2010.  She had hoped to be granted an SSB quickly and avoid retirement; however, even with six months delay in retirement an SSB was not scheduled and she was forced to retire in November 2010.  Sadly, it is now several years later and reinstatement does not seem feasible as she is past mandatory retirement age and has transitioned to civilian life.  As the DA findings state in the opinion, "it would not have been guaranteed she would have been promoted as she may not have been the "Best Qualified" at the time for the total number authorized for promotion."  They will never know.

   c.  What they do know was that she was "educationally qualified" and "erroneously considered NEQ."  That ended her career and the tour of duty she was doing at the time as well as the one she was scheduled to continue to do after that.  Mostly, it was the pain in having to explain to her family why she was not promoted and that she had to leave the Army, which was the most difficult.  She still struggles with the idea that it was a simple problem that may have been easily fixed and avoided.

   d.  She would like to be considered for retirement as an LTC with or without the increase in retirement benefits.  She waived all past payments as this was never about money.  It was about her pride in her career in the Army.


13.  Army Regulation 135-155, paragraph 4-34 (Selective Continuation) states:

   a.  An officer twice nonselected 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 SA may direct a selective continuation board to consider officers for continuation when required by the needs of the Reserve of the Army.  A selective continuation board must recommend the officers for continuation and the SA must approve the recommendation before officers may be continued.

	b.  Selectively continued officers, if otherwise eligible, will continue to be considered for promotion until separation.  Continuation for CPT and MAJ will normally be for 3 years from the approval date of the selective continuation 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).

	c.  An officer described in a above who has not been selected for continuation will be discharged, or, if eligible and the officer requests, transferred to the Retired Reserve on the expiration of the continuation period established.

14.  Title 10, USC, section 14507, states officers in the rank of MAJ, unless continued on the RASL under section 14701 or 14702 of this title or retained as provided in section 12646 or 12686 of this title, each reserve officer of the Army, Navy, Air Force, or Marine Corps who holds the grade of MAJ and who 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 under section 14514 of this title on the first day of the month after the month in which the officer completes 24 years of commissioned service.

15.  Title 10, U.S. Code, section 1370(d)(3)(A), states unless entitled to a higher grade under some other provisions of law, a commissioned officer of the Army who is entitled to retired pay under chapter 1223 of this title (i.e., nonregular retirement) shall be retired in the highest grade in which he served on active duty satisfactorily as determined by the Secretary of the Army.  In order to be credited with satisfactory service in an officer grade above major, the officer must have served satisfactorily in that grade for not less than 3 years.  Section 1370(5)(A) states the Department Secretary may reduce the period to a period of not less than 2 years.
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was considered and not selected for promotion to LTC by the FY 2009 board.  She was considered NEQ.  On 6 May 2010, she was issued a Twenty-Year Letter and transferred to the Retired Reserve, in the rank of MAJ, 16 November 2010.  She reached age 60 and was placed on the retired list in the rank of MAJ on 24 July 2012.

2.  The Officer Promotions Branch, HRC, opined that they subsequently determined she was erroneously considered NEQ; however, while she was educationally qualified there was not any guarantee she would have been selected.  

3.  In view of the applicant’s erroneous NEQ determination and missed opportunity for promotion consideration to LTC she should considered by an SSB for promotion consideration to LTC.  If selected, her records should be corrected to show she was continued in the Reserve until she completed 2 years of service to be eligible to retire in the rank of LTC.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

BOARD VOTE:

____X___  ____X___  ___X__ _  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing she was educationally qualified for promotion to lieutenant colonel.

2.  That, following administrative implementation of the foregoing, her records be submitted to a duly-constituted SSB for promotion consideration to lieutenant colonel under the 2009 year criteria.

3.  If selected for promotion by the SSB, further correct her records by voiding her removal from the RASL, showing she met all the eligibility criteria for promotion selection effective the approved date of the promotion selection board, promoting her in due course in accordance with Army Regulation 135-155 to lieutenant colonel with the appropriate date of rank, and paying to her any associated back pay and allowances.

4.  Further correcting her records to show she remained in an active status for 2 years following her promotion (and earned 15 membership and 35 inactive duty training points per retirement year, if less than what she is already credited with), was then granted a 1-year waiver to transfer to the Retired Reserve in the rank of lieutenant colonel, and further showing she was transferred to the Retired Reserve at that time and placed on the Retired List in the rank of lieutenant colonel and paid back retired pay as an O-5.

5.  Expunging all documents related to her now-voided non-selection for promotion.

6.  If not selected, the applicant should be so notified.



      _______ _   _______   ___
               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)                                         AR20130003421





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ABCMR Record of Proceedings (cont)                                         AR20130003421



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