IN THE CASE OF:	   

		BOARD DATE:	  11 March 2014

		DOCKET NUMBER:  AR20130009554 


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, in effect, promotion to major (MAJ)/O-4 and reinstatement in the Army National Guard (ARNG).

2.  The applicant states:

	a.  She was discharged as a two-time non-select for promotion but discovered after her discharge that she appeared on a U.S. Army Human Resources Command (HRC) MAJ selection board list.

	b.  The first time she was not selected was due to her lack of military education.  The reason for her second non-selection is unknown.  Her request for a special selection board (SSB) was not granted because she needed additional information to establish the grounds for her request.

	c.  She believes an "educational form" in her file was very judgmental and affected her promotion to MAJ.  She requested that the form be hidden in her file, but her request was made after the submission deadline and was not granted.  Although she had all outstanding officer evaluation reports, this form terminated her career.

	d.  She requests reassignment in the ARNG and promotion to the rank of MAJ.  She has exhausted all administrative remedies.  She worked with both recruiting and the G-1 to put together a waiver to for signature by The Adjutant General and forwarding to the National Guard Bureau (NGB).

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 April 2012
* District of Columbia ARNG (DCARNG) Orders 023-014, dated 2 May 2012
* NGB Special Orders Number 169 AR, dated 10 May 2012
* letter from the Chief, Case Management Division, Army Review Boards Agency, dated 14 February 2013
* DCARNG memorandum, dated 4 April 2013, subject:  Notification of Promotion Status
* DCARNG e-mail, dated 1 May 2013

CONSIDERATION OF EVIDENCE:

1.  On 27 June 1990, the applicant enlisted in the ARNG.  On 26 July 1996, she accepted an appointment as a Reserve commissioned officer of the Army.

2.  Effective 1 December 2003, she was promoted to captain (CPT)/O-3 in the DCARNG.

3.  A DA Form 1059 (Service School Academic Evaluation Report), dated 21 November 2006, shows she failed to achieve course standards for Public Affairs Officer Qualification Course 010-07.  Item 14 (Comments) shows she demonstrated moral and character deficiencies unbecoming of an Army officer by violating the school's plagiarism policy.  Her rater recommended barring her from entering any military school.

4.  The DA Form 1059 was referred to her and she elected to make comments.  She responded, in part, that she accepted responsibility for her actions and understood the resulting punishment.  She disagreed with the statement that she demonstrated moral and character deficiencies.  She also disagreed with the recommendation barring her from entry in any military school.  She stated she did not believe her military career should be jeopardized due to a requirement she did not understand.

5.  The DA Form 1059 and her comments are filed in the performance folder of her Army Military Human Resource Record.

6.  On 2 November 2011, an official from Promotions, Special Actions Branch, HRC, sent her an e-mail with an attached copy of her Fiscal Year (FY) 2011 promotion board file.  The official asked her to review the file and provide information to substantiate her request to be reconsidered for promotion by an SSB.  The official informed her that statutory requirements prevent disclosure of board proceedings to anyone who is not a member of the board.  The official stated there was no way that HRC could tell her why she wasn't selected for promotion.  The official further informed her that she did not have a basis for reconsideration by an SSB at that time unless she could find something in her board file that should not have been there or something missing that should have been seen.

7.  On 4 November 2011, she responded to the e-mail.  She stated she was requesting an SSB because she believed she had successfully met all of the requirements for promotion to MAJ and she listed several documents as references.  She also stated she didn't believe the documentation for the Public Affairs Officer Qualification Course should be included in her promotion board file.

8.  On 7 November 2011, the HRC official sent another e-mail in response to a conversation he had had with the applicant.  He informed her of the basis for approval of a request for promotion reconsideration by an SSB.  He informed her that her request did not meet the requirements and had been denied.

9.  An NGB Form 22 (Report of Separation and Record of Service) shows she was honorably discharged from the ARNG in the rank of CPT on 30 April 2012.

10.  NGB Orders 131-10, dated 10 May 2012, show she was honorably discharged from the ARNG of the United States in the rank of CPT effective 20 April 2012 under the provisions of National Guard Regulation 635-100 (Personnel Separations – Termination of Appointment and Withdrawal of Federal Recognition), paragraph 5a.

11.  NGB Special Orders Number 169 AR, dated 10 May 2012, as amended by NGB Special Orders Number 199 AR, dated 30 May 2012, show the applicant's Federal recognition was withdrawn and she was transferred to the Retired Reserve.

12.  On 13 June 2012, the DCARNG issued a memorandum to her, subject:  Notification of Eligibility for Retired Pay for Non-Regular Service (20 Years), verifying she had completed the required years of service to be eligible for retired pay upon application at age 60.

13.  She provided several documents in support of her request.

	a.  DCARNG Orders 023-014, dated 2 May 2012, separated her from the ARNG and as a Reserve of the Army effective 30 April 2012.

	b.  Her DD Form 214 shows she was honorably released from active duty on 30 April 2012.

	c.  A memorandum, from the DCARNG Chief of Staff for Personnel/G-1, dated 4 April 2013, subject:  Notification of Promotion Status, informed her that she was selected for promotion by the Department of the Army (DA) Reserve Component Selection Board that convened on 30 May 2012 and became effective 8 November 2012.  The memorandum further informed her that her name would be removed from the list of officers recommended for promotion by the selection board due to her transfer to a retired status on 14 May 2012 before being promoted.

	d.  An e-mail from the DCARNG Deputy Chief of Staff for Personnel/G-1, dated 1 May 2013, responded to a voicemail from the applicant.  The e-mail confirmed an unspecified command position on her situation and referred her to this Board.

14.  On 17 July 2013, the Chief, Personnel Policy Division, NGB, provided an advisory opinion recommending disapproval of the applicant's request for reinstatement in the ARNG and promotion to MAJ.  The advisory official stated:

	a.  After further research conducted by the DCARNG, NGB determined the applicant was erroneously selected for promotion during the FY12 DA board.  Due to an administrative oversight, the DCARNG did not remove the applicant from the board list and she was selected for promotion.  At the time the list was approved, the applicant had already been discharged.

	b.  According to the NGB DA Board Section, the applicant's discharge was in compliance with Title 10, U.S. Code, section 14310(d), which states, "Under regulations prescribed by the Secretary concerned, if an officer on the reserve active-status list (RASL) is discharged or dropped from the rolls or transferred to a retired status after having been recommended for promotion to a higher grade under this chapter or having been found qualified for Federal recognition in the higher grade under title 32, but before being promoted, the officer's name shall be administratively removed from the list of officers recommended for promotion by a selection board."

	c.  As explained by the DCARNG and the NGB DA Board Section, the applicant was a two-time non-select for promotion as of the FY11 MAJ board that was released on 4 October 2011.  The applicant was not selected for selective continuation.  Therefore, the NGB Personnel Policy Division and Officer Policy Branch do not recommend granting administrative relief to the applicant.

	d.  The DCARNG concurred with the recommendation.

15.  The applicant was provided a copy of the advisory opinion for comment and rebuttal.  She did not respond.

16.  National Guard Regulation 635-100 prescribes the policies, criteria and procedures governing the separation of commissioned officers of the ARNG.  Paragraph 5a(10) provides for the termination of a State appointment upon failure of a first lieutenant, CPT, or MAJ to be selected for promotion to the next higher grade after a second consideration under Army Regulation 135-155 (ARNG and Army Reserve – Promotion of Commissioned Officers and Warrant Officers Other Than General Officers).  Removal from an active status must be accomplished within 90 days after the selection board submits its report to the convening authority.  Removal may be delayed, if necessary, until final determination is made with respect to a valid request for reconsideration under the standby board provisions of Army Regulation 135-155.

17.  Army Regulation 135-155 prescribes policy and procedures for selecting and promoting commissioned officers (other than commissioned warrant officers) of the ARNG of the United States and commissioned and warrant officers of the U.S. Army Reserve.

	a.  A CPT on the RASL who has failed of selection for promotion to MAJ for the second time, whose name is not on a list of officers recommended for promotion to MAJ, and who has not been selected for continuation on the RASL under Title 10, U.S. Code, section 14701, will be separated unless the officer has a remaining service obligation or can be credited with 18 or more but less than 20 years of qualifying service for retired pay.  Separation will be not later than the first day of the seventh month after the month in which the final approval authority approves the report of the board that considered the officer for the second time.

	b.  Promotion selection boards will keep confidential their reasons for recommending or not recommending any officer considered.

	c.  SSB's are convened to correct/prevent an injustice to an officer or former officer who was eligible for promotion but whose records through error, were not submitted to a mandatory promotion selection board for consideration or whose records contained a material error when reviewed by the mandatory selection board.

18.  Army Regulation 623-3 (Evaluation Reporting System (ERS)) prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army's ERS, including the academic evaluation report (AER).  It also provides for the Evaluation Report Redress Program.

	a.  An evaluation report accepted for inclusion in the official record of a rated Soldier's AMHRR is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.

	b.  The rated Soldier or other interested parties who know the circumstances of a rating may appeal any report that they believe is incorrect, inaccurate, or in violation of the intent of this regulation.

	c.  Substantive appeals will be submitted within 3 years of an AER "thru" date.  Failure to submit an appeal within this time will require the appellant to submit his or her appeal to the ABCMR.

	d.  The burden of proof rests with the rated Soldier.  Accordingly, to justify deletion or amendment of a report, the rated Soldier must produce evidence that clearly and convincingly establishes that the presumption of regularity should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of an administrative error or factual inaccuracy.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request for promotion to MAJ/O-4 and reinstatement in the ARNG.

2.  A review of the available records shows no basis for referring her to an SSB to be reconsidered for promotion to MAJ.  She stated she believes an "educational form" in her file affected her promotion to MAJ.  She also stated she requested that the form be hidden in her record, but her request was denied because she did not submit it in a timely manner.  Her records do include a DA Form 1059 showing she failed to achieve course standards for the Public Affairs Officer Qualification Course in 2006 due to plagiarism.  Removal of the DA Form 1059 might be a basis for referring her to an SSB; however, she has not provided clear and convincing evidence establishing that the presumption of regularity should not be applied to this document.

3.  Although she was selected for promotion by a DA board after she was discharged, she was properly removed from the promotion list under the applicable provisions of Title 10, U.S. Code, because she had already been discharged as a two-time nonselect prior to the convening of that board.  There was no error in this action.

4.  Absent a promotion to MAJ, there is no basis for considering her request for reinstatement in the ARNG.

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 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)                                         AR20130009554



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130009554



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1