IN THE CASE OF: 

		BOARD DATE:	    23 July 2014

		DOCKET NUMBER:  AR20130015898 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests:

	a.  reconsideration of the applicant's selection for promotion from major (MAJ) to lieutenant colonel (LTC) by the April 2012 Special Selection Board (SSB) using Fiscal Year 2011 (FY11) selection criteria;

	b.  restoration of the applicant to active duty effective 1 September 2012 and promotion to LTC in the normal course;

	c.  credit for time in grade for pay, promotion, and retirement purposes to the applicant from 1 September 2012 to the present; and

	d.  back pay and allowances to the applicant from 1 September 2012 to the present.

2.  Counsel states:

	a.  On 27 July 2011, the applicant was not selected for promotion to LTC for the second time.

	b.  Because the applicant had over 18 years of active duty service, the normal 7-month period until separation was waived by statute and his mandatory removal date (MRD) with 20 years of active service became 31 August 2012.

	c.  In the notice of mandatory retirement to the applicant, dated 27 July 2011, he was given the option to either retire voluntarily or mandatorily (see tab B).  This document provided that "For a mandatory retirement, due to non-selection for permanent promotion, the SPD [separation program designator] code will be SGB."  It also noted the SPD code for voluntary retirement was RBD.  The document went on to say, "Although the codes are different, the benefits, orders and certificates for voluntary and mandatory retirement are the same."

	d.  The applicant first elected to involuntarily retire as evidenced in tab C.

	e.  The fact that the applicant elected to involuntarily retire is memorialized in an email exchange between the applicant and a government employee of the U.S. Army Human Resources Command (HRC), dated 21 October 2011 (see tab D).

		(1)  The government employee was a human resources (HR) specialist representing the HRC Officer Retirements and Separations Branch.

		(2)  She advised the applicant to seek voluntary retirement and returned his involuntary retirement request at tab C to him.

		(3)  She was the subject matter expert who knew or should have known the consequences of her advice.

	f.  It is also clear from tab D that the applicant's supervisor advised him to seek voluntary retirement.

	g.  At tab E is an email exchange between the applicant and the HR specialist wherein:

		(1)  the applicant asked, "Also, do my records still get looked at for next year's [2012] O-5 board?" and

		(2)  the HR specialist responded, "Yes, you will continue to be looked at for promotion."

	h.  The applicant then forwarded a request for voluntary retirement (see tab F), dated 21 October 2011.

	i.  On 12 April 2012, the applicant was notified that an SSB would consider him for promotion to LTC using FY11 selection criteria.

	j.  The applicant voluntarily retired on 31 August 2012.

	k.  On 24 October 2012, the applicant received a notice that an SSB using FY10 selection criteria had not selected him for promotion.  The date of the SSB is unknown.

	l.  At some time after 31 August 2012, an SSB selected the applicant for promotion to LTC using FY11 selection criteria.  The reason for this SSB was that the applicant's records were incomplete due to government administrative error during the original FY11 promotion board (see Army Board for Correction of Military Records (ABCMR) Docket Number AR20120008286, dated 11 April 2013, page 4, paragraph 17).

	m.  The ABCMR analyst presumed this promotion was denied because the applicant was no longer in an active status when the SSB convened; therefore, his selection was negated.

3.  Counsel contends that the ABCMR can retroactively promote a service member who has voluntarily retired.

	a.  There is ABCMR precedent for this in ABCMR Docket Number 
AR20040003960.  Precedent must now be considered under Wilhelmus versus Geren, 796 Federal Supplement, 2nd Series, Volume 157 (District Court, District of Columbia 2011).

	b.  Title 10, U.S. Code (10 USC), section 628, and Army Regulation 600-8-29 (Officer Promotions), paragraphs 7-2 and 7-3, do not prohibit an SSB from promoting retired officers and grant discretion to the Secretaries of the several Services to impose such limitations as they see fit.  The Navy, for example, restricts SSB's to active officers under Secretary of the Navy Instruction 1401.1.  There is no such Army limitation.

	c.  Army Regulation 600-8-29, paragraph 7-3 (Cases Not Considered), does not prohibit such action.

4.  Furthermore, it is not clear how the term "active status" was used in this case. 
"Active Status" is defined in 10 USC 101(d)(4) as "the status of a member of a reserve component..."  That definition does not appear to have any application here.

5.  If the ABCMR analyst meant the applicant was voluntarily retired and therefore ineligible for an SSB promotion, we point out the following:

	a.  See our prior discussion.

	b.  The applicant sought to retire involuntarily as is evidenced in tab C.

	c.  It was government officials with subject matter expertise who convinced him to seek voluntary retirement.

	d.  The advice given by those officials was wrong in that they did not disclose the consequences of an involuntary retirement to include the possibility that a voluntary retirement could make judicial review in a Federal court nonjusticiable.

	e.  When a service member relies upon even an innocent misrepresentation from a government subject matter expert, the voluntariness of a retirement is voided and becomes involuntary.  Nickerson versus United States, 35 Federal Claim 581, 586 (Federal Claim 1996).

	f.  Separation due to a double passover is clearly involuntary.  The applicant made a decision to involuntarily retire. He was dissuaded from doing so by misrepresentation from subject matter experts upon whom he relied.

6.  This retirement was not voluntary and relief should be granted.

7.  Counsel provides:

* Tab A – ABCMR Docket Number AR20120008286, dated 11 April 2013
* Tab B – mandatory retirement date due to non-selection for promotion notification
* Tab C – acknowledgement of mandatory retirement date and election to be involuntarily retired
* Tab D – email exchange regarding differences between voluntary and involuntary retirement
* Tab E – email exchange regarding continued consideration for promotion to LTC
* Tab F – revised acknowledgement of mandatory retirement date and change for election to be voluntarily retired
* Tab G – results of SSB consideration under FY10 criteria


CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120008286 on 11 April 2013.

2.  Counsel contends that the applicant was incorrectly advised to change his election for retirement from involuntary to voluntary which had an adverse impact on his promotion eligibility.  He also asserts that the term "active status" was improperly applied in the applicant's previous ABCMR case.  These contentions are considered new arguments which warrant consideration by the Board.

3.  The applicant's records show that upon successful completion of the Officer Candidate School, he was appointed a Reserve commissioned officer of the Army and executed an oath of office on 14 April 1994.  He entered active duty on the same date and completed the Signal Officer Basic Course.

4.  He served in a variety of staff or leadership positions of increasing responsibility, both within and outside the continental United States.  He was promoted to captain on 1 May 1998 and to MAJ on 1 October 2004.

5.  He was considered for promotion to LTC by the FY10 LTC Maneuver, Fires and Effects (MFE); Operations Support (OS); and Force Sustainment (FS) Promotion Selection Board, but he was not among those selected for promotion by the board.

6.  On 27 July 2011, he was notified that he was considered for promotion to LTC by the FY11 LTC MFE, OS, and FS Promotion Selection Board, but he was not among those selected for promotion by the board.  The notification letter further stated:

	a.  In its comparative judgment of future potential, the board considered such factors as performance reflected by officer evaluation reports, assignments, military and civilian training, and education.  His non-selection reflected the unavoidable fact that not all of the Army's highly-professional officer corps can be promoted through each successive grade.

	b.  By law, he would normally separate from the Army no later than the first day of the seventh month from the board approval date.  However, because he had completed 18 years of active Federal service, he would be allowed to continue on active duty until 31 August 2012, his revised MRD.

7.  The applicant acknowledged receipt of the mandatory retirement date due to non-selection for promotion notification and elected to be involuntarily retired on 31 August 2012, his mandatory retirement date.  He further acknowledged his understanding that he would not be eligible for separation pay as he would be retirement eligible.

8.  On 3 August 2011, the applicant exchanged email correspondence with an HR Specialist in the Retirements and Separations branch at HRC wherein he asked her for guidance on the appeal process for nonselection and also asked if his records would continue to be considered for promotion the following year.  The HR Specialist told the applicant, "Yes, you will continue to be looked at for promotion."  She referred him to the Promotions Branch for advice about the appeal process.

9.  On 21 October 2011, the applicant exchanged email correspondence with an HR specialist in the HRC Retirements and Separations Branch wherein he noted his supervisor had advised him that there was a difference between voluntary and involuntary retirements and his election would have an impact on his retirement orders.  The HR specialist indicated she recalled having a conversation with the applicant during which she acknowledged receipt of his memorandum electing involuntary retirement and they discussed the differences between voluntary and involuntary retirement.  Based upon their conversation, the HR specialist returned his previously-signed request to be involuntarily retired and provided him with another form in which he could make a re-election.

10.  On 21 October 2011, the applicant completed another document wherein he acknowledged receipt of the mandatory retirement date due to non-selection for promotion notification, but this time he elected to be voluntarily retired on 31 August 2012, his mandatory retirement date.  He further acknowledged his understanding that he would not be eligible for separation pay as he would be retirement eligible.

11.  On 17 April 2012, the applicant was notified that his promotion file would be considered by an SSB under the FY11 criteria.  He acknowledged his receipt and understanding of the notification by authenticating the document with his signature on 20 April 2012.  This notification contains the following statement:

I understand that it is my responsibility to contact my Commander, Personnel Administrative Center, Officer Eliminations/Separations and/or Officer Special Actions, to inform them of my ongoing case and request that I not be separated from active duty/status prior to the results of my SSB.  I further understand that this notification of an approval for an SSB does not constitute an automatic extension on the Active Duty List (ADL) or the Reserve Active Status List (RASL); nor does it supersede any law or doctrine as it relates to Eliminations, Mandatory Retirement Dates, Voluntary Retirement Dates or Separation in general.

I understand that the entire process may take up to 12 months (or more due to unforeseen circumstances) and that my signature below affirms that I have read the contents of this notification in full.

12.  The applicant's records are void of any evidence and neither he nor counsel has provided any evidence that shows the applicant exercised due diligence in informing the appropriate authorities that he had an ongoing SSB action and requesting to be extended on the ADL pending the results of the SSB.

13.  On 31 August 2012, the applicant was honorably retired from active duty and he was placed on the Retired List effective 1 September 2012.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in:

	a.  item 25 (Separation Authority), was separated under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 
6-13c(1);

	b.  item 26 (Separation Code), the SPD code for his separation was "RBD," indicating voluntary retirement upon completion of 20-30 years of service; and

	c.  item 28 (Narrative Reason for Retirement), the entry "SUFFICIENT SERVICE FOR RETIREMENT."

14.  On 24 October 2012, the Chief, Officer Promotions Special Actions, HRC, notified the applicant that he was considered for promotion to LTC by an SSB under the FY10 selection criteria, but not selected.

15.  An SSB subsequently convened under the FY11 selection criteria and selected him for promotion to LTC.  A staffing summary sheet shows the SSB determined he was fully qualified or among the best qualified for promotion to LTC and an SSB was warranted based on his administrative office or the interactive Personnel Management System inability/delay to upload his academic transcripts prior to the convening date of the FY11 promotion board.  Senior Army leaders, including the Secretary of the Army, recommended approval of the SSB and the Under Secretary of Defense (Personnel and Readiness) approved the recommendation on 15 October 2012.  The promotion was confirmed by the Senate by voice vote on 3 December 2012.

16.  Counsel contends the ABCMR can promote retroactively a service member who has voluntarily retired and cites precedent for this in ABCMR Docket Number AR20040003960.  A review of that case shows the ABCMR merely recommended the applicant's consideration by an SSB.  The applicant was considered and subsequently not selected for promotion.

17.  Army Regulation 600-8-29 prescribes the officer promotion function of the military personnel system.

	a.  Paragraph 1-11 provides that promotion boards make recommendations to the President of the United States.  The President has delegated authority to the Secretary of Defense to approve or disapprove promotion board reports.  Promotions to the grade of MAJ and above must be confirmed by the Senate in accordance with the statutory requirements of 10 USC 624[c].

	b.  Chapter 7 provides that SSB's are governed by the same instructions provided to the boards that considered or should have considered an officer for promotion.  The SSB's may be convened under 10 USC 628 to consider or reconsider commissioned or warrant officers for promotion when Headquarters, Department of the Army, discovers one or more of the following:

		(1)  An officer was not considered from in or above the promotion zone by a regularly-scheduled board because of administrative error.  This would include officers who missed a regularly-scheduled board while on the Temporary Disability Retired List and who have since been placed on the ADL (10 USC 628(a)(1) (SSB required)).

		(2)  The board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary).

		(3)  The board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary).

18.  Army Regulation 600-8-24 prescribes policies and procedures governing the transfer and discharge of Army officer personnel.

     a. Paragraph 5-9 (Rules for processing separation of commissioned officers and chief warrant officers who are twice nonselected for active duty list (ADL) promotion by a Headquarters, Department of the Army (HQDA) centralized board), subparagraph 5-9h, states when an officer’s case is referred to an SSB for promotion reconsideration, the officer will continue to be processed for separation as scheduled.  However, when reconsideration is not completed by the scheduled separation date, HRC will temporarily suspend the separation date, pending completion.  When the board’s decision is unfavorable, the officer will be separated not later than 30 calendar days after their receipt of notification.

	b.  Paragraph 6-13c(1) provides that a Regular Army commissioned officer with 20 years of active Federal service (of which 10 years is active commissioned service) may, upon their request and approval of Secretary of the Army, be retired (10 USC 3911).

	c.  Paragraph 6-23 provides that a mandatory retirement is required by law and is initiated by HQDA.  An officer must be retired on the date established by the applicable statute unless specifically provided by law (10 USC 640).  An officer may request retirement and be retired voluntarily on his or her mandatory retirement date.

19.  10 USC 628 (SSB's), paragraph (d)(2), provides that a person who is appointed to the next higher grade as the result of the recommendation of an SSB convened under this section shall, upon that appointment, have the same date of rank, the same effective date for the pay and allowances of that grade, and the same position on the ADL as he or she would have had if he or she had been recommended for promotion to that grade by the board which should have considered or which did consider him or her.  In the case of a person who is not on the ADL when appointed to the next higher grade, placement of that person on the ADL pursuant to the preceding sentence shall be only for purposes of determination of eligibility of that person for consideration for promotion by any subsequent SSB under this section.

20.  10 USC 628, paragraph (j), states the Secretary of each military department shall prescribe regulations to carry out this section.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows:

	a.  On 27 July 2011, the applicant was not selected for promotion to LTC for the second time.

	b.  Because the applicant had over 18 years of active duty service, the normal 7-month period until separation was waived by statute and his MRD was established as 31 August 2012 based upon completion of 20 years of active service.

	c.  In the notice of mandatory retirement to the applicant, dated 27 July 2011, he was given the option to either retire voluntarily or mandatorily (see tab B).  This document provided:

	d.  The applicant first elected to involuntarily retire.

	e.  The applicant had conversations with both his supervisor and an HR specialist representing the HRC Officer Retirements and Separations Branch regarding the differences between voluntary and involuntary retirement.  Contrary to counsel's assertions, the details of these conversations are unknown.  Neither the applicant nor his counsel provided evidence showing he was advised or coerced to change his election.  Therefore, it is presumed that based upon the information discussed, the applicant made an informed decision to withdraw his previous election and it was returned without action.

	f.  On 21 October 2011, the applicant voluntarily submitted an election to be voluntarily retired on 31 August 2012.

	g.  On 12 April 2012, the applicant was notified that an SSB would consider him for promotion to LTC using FY11 selection criteria.  The notification clearly advised him that it was his personal responsibility to contact his commander, personnel administrative center, officer eliminations/separations and/or officer special actions sections, to inform them of his ongoing case and request not to be separated from active duty/status prior to the results of his SSB.  He could have requested extension at that time, but he provides no evidence to show that he did so.

	h.  The applicant voluntarily retired on 31 August 2012.  As a result, he was removed from the ADL and placed on the Retired List effective 1 September 2012.

	i.  Although the applicant was selected and recommended for promotion by an SSB, the recommendation was not approved and ultimately confirmed by the Senate until 3 December 2012, 3 months after he had been removed from the ADL.

2.  Contrary to counsel's contentions, the ABCMR cannot retroactively promote a service member who has voluntarily retired.  10 USC 628(d)(2) clearly states that once a service member has been removed from the ADL, at best, the service member could potentially be reinstated on active duty and promotion would be dependent on favorable consideration by a subsequent SSB.  Therefore, the applicant's removal from the ADL at the time of his voluntary retirement effectively negated his promotable status.
3.  Regardless of whether the applicant was pending a voluntary or involuntary retirement, once he received notification that he would be considered for promotion by an SSB, he had the right and the personal responsibility to notify the appropriate authorities to preclude his separation prior to receiving the results of the SSB.  Again, however, there is no evidence to show that he did so.  Therefore, counsel's contention that changing his election from involuntary to voluntary retirement has no bearing on this case.

4.  The applicant's records are void of any evidence and neither he nor counsel provided any evidence that shows the applicant exercised due diligence in informing the appropriate authorities that he had an ongoing SSB action and requesting to be extended on the ADL pending the results of the SSB.

5.  Therefore, there is no basis for granting the applicant's request.

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 to amend the decision of the ABCMR set forth in Docket Number AR20120008286, dated 11 April 2013.



      ___________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)                                         AR20130015898



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130015898



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1