BOARD DATE:	  10 June 2014

		DOCKET NUMBER:  AR20130017511 


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 promotion to lieutenant colonel (LTC) in the U.S. Army Reserve (USAR). 

2.  The applicant states:

* she served on active duty as well as the Army National Guard (ARNG) and the USAR; she was denied promotion to LTC
* her promotion packet was pulled due to the erroneous belief that she did not have enough retirement points/qualifying years for promotion
* she was slotted in an Individual Mobilization Augmentee (IMA) slot and worked for Army Broadcasting from 1 July 1995 to 1 March 2003
* the U.S. Army Human Resources Command (HRC) erroneously listed her in the Individual Ready Reserve (IRR)
* she tried to correct her retirement points but the corrections were rejected because she was believed to be in the IRR
* she continued to perform her duties (drilling) despite the error and despite the fact that her points were not accepted 
* she was discharged from the USAR in 1999 and again in 2003 due to rejection of her retirement point correction
* she ultimately contacted the individual who should have signed her drilling points and he happily signed the forms
* the retirement points were corrected and she ultimately received credit for 22 qualifying years of service 


3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 14 May 1983
* Retired Reserve orders, dated 14 January 2013
* Notification of Eligibility for Retirement Pay
* Copy of military identification card

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show she was born on XX August 1955.  She was appointed as a Reserve commissioned officer and executed an oath of office on 21 July 1977.  She completed the Adjutant General Officer Basic Course. 

2.  She entered active duty on 9 March 1979 and she served in Germany from May 1979 to May 1983.  She was honorably released from active duty on 14 May 1983 and she was transferred to the USAR Control Group (Reinforcement). 

3.  She was appointed as a Reserve commissioned officer of the NYARNG on 29 August 1983.  She was honorably separated from the ARNG on 1 October 1984 in the rank of captain (CPT) and she was assigned to the USAR Control Group (Reinforcement).

4.  She was appointed in the NYARNG on 19 June 1986 in the rank of CPT.  She was honorably released from the NYARNG on 30 September 1989 and she was transferred to the 1154th USAR School, Fort Totten, NY.  Her ARNG Federal recognition was withdrawn.

5.  On 8 March 1991, she was notified of her promotion to MAJ in the USAR with a date of rank (DOR) as 8 March 1991.  She received credit for completing the Command and General Staff Officer Course on 23 July 1992. 

6.  Between January 1992 and January 1995, she was assigned to a troop program unit (TPU) of the USAR, the 340th Public Affairs Detachment, Fort Totten, NY.  However, on 14 January 1995, she was reassigned from her USAR TPU, 340th Public Affairs Detachment, Fort Totten, NY, to the USAR Control Group (Reinforcement). 

7.  On 18 June 1998, by letter, HRC notified her that her records were considered by the 1998 Department of the Army (DA) Reserve Components Mandatory Selection Board for promotion to LTC but she was not selected for promotion. 

8.  On 1 September 1999, HRC published Orders D-09-962748 ordering her honorable discharge from the USAR effective 1 September 1999.  These orders were revoked at a later date. 

9.  On 20 July 2000, she contacted HRC inquiring about a two-time non-select letter she received in the mail.  She indicated she had not gone before two promotion boards and stated that she was still drilling with her unit, had completed 20 qualifying years of service, and is still working to have her erroneous discharge removed.  

10.  On 11 August 2000, HRC presumably removed the two-time non-select letter and corrected her discharge orders.  An entry in the HRC's Interactive Web Service (IWS) shows that on 11 August 2000 her branch removed the 2-time passover code from her records and her discharge orders were revoked. 

11.  On 15 September 2000, HRC published Orders C-11-746286R revoking Orders C-11-746286, issued on 7 November 1997.  In doing so, it appears her branch revoked her transfer orders and corrected her current organization from TPU to IMA.

12.  On 4 February 2003, by letter, HRC notified her that her records were considered by the September 2002 DA Reserve Components Mandatory Selection Board for promotion to LTC but she was not selected for promotion. 

13.  On 20 February 2003, HRC published Orders D-02-307258 ordering her honorable discharge from the USAR effective 1 March 2003, as a two-time 
non-select for promotion to LTC. 

14.  Between 2004 and 2008, she submitted multiple requests to correct her retirement points but all were rejected by HRC since the forms she submitted were neither completed correctly nor were they signed by any officials. 

15.  On 24 August 2009, by letter to her Member of Congress, an HRC official stated in order to be awarded retirement point credit for the contested periods the applicant must correct the forms or have an official sign them. 

16.  In September/October 2012, HRC performed a series of actions: 

	a.  On 13 September 2012, HRC published Orders D-09-962748R revoking Orders D-09-962748, dated 1 September 1999, pertaining to her discharge from the USAR on 1 September 1999.

	b.  On 18 September 2012, HRC corrected her Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points) to show 21 years, 7 months, and 6 days of qualifying service toward non-regular retirement. 

	c.  On 18 October 2012, HRC issued her a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  

17.  On 9 January 2013, HRC published Orders D-02-307258R revoking Orders D-02-307258, dated 20 February 2003, pertaining to her discharge from the USAR. 

18.  On 14 January 2013, HRC published Orders C-01-300618 transferring her to the Retired Reserve effective 1 March 2003, by reason of being twice not selected for promotion. 

19.  An advisory opinion was received from HRC on 26 November 2013 in the processing of this case.  The HRC official stated the applicant's assertion that she was disadvantaged by being removed from promotion consideration based upon insufficient years/points has been reviewed.  

	a.  She was considered and subsequently not selected for promotion by both the Fiscal Year (FY) 1997 and 1998 LTC Army Promotion List (APL), Promotion Selection Board (PSB).  

	b.  She was directed to separate based on her two-time non-selection, on 1 September 1999.  However, the notes in the HRC Interactive Web Services (IWS) state that her discharge as a two-time non-select was revoked in the legacy system by the Proponent on 8 September 2000.  The actual separation orders were not revoked until 13 September 2012 (Orders D-09-962748).  

	c.  Based upon separation orders in her official records, she was not boarded for the FY99, FY00, FY01, and FY02 LTC APL PSBs.  However, she was considered for promotion by the FY03 LTC APL PSB but she was not selected.  On 20 February 2003, she was again discharged from the USAR based on not having sufficient points/good years to qualify for Retired Reserve.  

	d.  After her ARPC Form 249-E was readjusted on 18 September 2012 and it was determined she had sufficient retirement points, her second discharge was revoked by Orders D-02-307258R with an effective date of 9 January 2013.  She was transitioned to the Retired Reserve effective 1 March 2013 by orders issued on 14 January 2013.  

	e.  This office (Officer Promotions) will defer to the respective separation authority if the officer was legally retained from 1 September 1999 until 1 March 2003 based on the 20-year rule and previous two-time non-select status.  If legally retained, she should be eligible for a special selection board (SSB) consideration for the FY99-FY02 LTC APL PSBs based on erroneous omissions. 

20.  The applicant responded to the advisory opinion on 18 December 2013.  She stated: 

* she did not make LTC because the Army had her points wrong through no fault of hers; her unit at the time lacked expertise in inputting the points
* she could have made LTC years ago had the Army corrected her points; it was never about the money
* she worked diligently and for many years in an effort to correct her points and despite the years and geographical distance, she even sought the original individual to get the forms signed 

21.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) prescribes policy and procedures used in the selection and promotion of commissioned officers of the ARNG and commissioned and warrant officers of the USAR.  

22.  Army Regulation 135-155 states promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error, which existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual’s non-selection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  Boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required military schooling.

23.  Title 10, U.S. Code, section 14506 (Effect of Failure of Selection For Promotion: Reserve Majors of the Army, Air Force, and Marine Corps, and Reserve Lieutenant Commanders of the Navy) states unless retained as provided in section 12646, 12886, 14701, or 14702 of this Title, each reserve officer of the Army, Navy, Air Force, or Marine Corps who holds the grade of major or lieutenant commander who has failed of selection 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, if not earlier removed from the reserve active-status list, be removed from that list in accordance with section 14513 of this title on the later of the first day of the month after the month in which the officer completes 24 years of 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.

24.  Title 10, U.S. Code, section 14513 (Failure of Selection for Promotion: Transfer, Retirement, or Discharge) states each reserve officer of the Army, Navy, Air Force, or Marine Corps who is in an active status and whose removal from an active status or from a reserve active-status list is required by section 14504, 14505, or 14506 of this title shall (unless the officer’s separation is deferred or the officer is continued in an active status under another provision of law) not later than the date specified in those sections:

* be transferred to an inactive status if the Secretary concerned determines that the officer has skills which may be required to meet the mobilization needs of the officer’s armed force
* be transferred to the Retired Reserve if the officer is qualified for such transfer and does not request (in accordance with regulations prescribed by the Secretary concerned) not to be transferred to the Retired Reserve
* if the officer is not transferred to an inactive status or to the Retired Reserve, be discharged from the officer’s reserve appointment

DISCUSSION AND CONCLUSIONS:

1.  The applicant was promoted to MAJ on 8 March 1991.  She was considered for promotion to LTC by the FY98 RCSB but she was not selected for promotion. There is no record that she was considered or not selected for promotion to LTC by the FY99 RCSB.  For unknown reasons, on 1 September 1999 HRC published orders ordering her honorable discharge from the USAR effective 
1 September 1999.  An IWS entry shows her branch removed the non-selection but there is no documentary evidence this action was accomplished. 

2.  Also for unknown reasons, despite having been discharged from the USAR in 1999, she was again considered for promotion to LTC by the FY03 LTC APL PSB but she was not selected.  HRC again published orders ordering her honorable discharge from the USAR effective 1 March 2003.  

3.  The available evidence clearly shows she exercised due diligence.  Over the years, she tried tirelessly to update her retirement points to no avail.  She even tracked down her unit official in an effort to get him to sign her forms in order to receive proper retirement point credit.  

4.  HRC officials ultimately realized the extensive errors committed and the impact they have had on her military career, and, in September 2012, took corrective action by revoking both of her discharge orders (1999 and 2003), updating her retirement points, issuing her a 20-year letter, and transferring her to the Retired Reserve.  

5.  It is clear errors were committed.  It is further clear none of the errors were her own.  In view of the circumstances in this case, she should be entitled to consideration for promotion by an SSB based on the FY99, FY00, FY01, and FY02.  She has clearly shown error, injustice, and inequity.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  ___X_____  _X___  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 partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by submitting the applicant’s records to a duly-constituted SSB for consideration for promotion to LTC under the appropriate LTC APL PSB year criteria (FY99, FY00, FY01, and FY02).

	a.  If the applicant is selected for promotion, her records be further corrected by promoting her to LTC based on her assigned promotion sequence number with the appropriate date of rank, and with all due back pay and allowances, and if applicable, showing she was transferred to the Retired Reserve in the higher grade. 

	b.  If the applicant is not selected, the applicant be so notified.







2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to promoting her to LTC without SSB consideration.  



      _______ _  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)                                         AR20130017511



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130017511



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1