IN THE CASE OF:	  

		BOARD DATE:	  6 February 2014

		DOCKET NUMBER:  AR20130018210 


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 correction of his records as follows:

* correction of his resignation letter to show he resigned under duress and in effect, cancellation of his resignation letter
* service credit and pay/allowances from the time of discharge on 1 February 2011 to the date of reinstatement
* in effect, reinstatement into the Army

2.  The applicant states he erroneously claimed in his unconditional resignation request that he was resigning to further his education.  He resigned under duress caused by his frustration with the Army and believed his opportunities for success and advancement were closed off.  Throughout his post-Afghanistan time on active duty, during which time the record which he is petitioning to be corrected was created, he suffered from unrelenting stress coupled with the overarching sense that he was no longer supported by the Army, an institution for which he had risked his life and with which he had enthusiastically planned to spend his professional life, and thus had no future career in the Army.  He specifically raises the following issues:  

	a.  The Army's loss of his Medal of Honor nomination.  Given the importance of the nomination, the level of publicity, and numbers of people involved, this lapse did not align with his vision of an Army that was supportive of his efforts and desirous of supporting his career aspirations.  Additionally, there was a subsequent attempt to downgrade the Medal of Honor (MOH) to the Distinguished Service Cross.
	b.  The Army's delay, loss, and last-minute notation on his DD Form 214 (Certificate of Release or Discharge from Active Duty) the day before his separation of the award to him of the Purple Heart.  He has yet to receive the decoration or the citation.

	c.  The inability to receive confirmation that he had fulfilled all requirements for promotion to major (MAJ).  He was advised that the promotion board would meet on varying dates during the fall and winter of 2010.  Colonel B---n, the Garrison Commander, Fort Riley, KS, approved the extension of his date of resignation on four occasions in support of his efforts to pursue his chosen career.

	d.  The inadequate to no support from U.S. Army Human Resources Command (HRC) or Infantry Branch from the time of his return to the United States to his February 2011 separation.  

3.  COL B---n, the first O-6 in the applicant’s chain of command upon his return from Afghanistan, provided a statement.  COL B---n observed: 

….I first learned of the enormity of the duress [Applicant] requests acknowledgement of when the RMDB [Reserve Mobilization Deployment Brigade] chain of command notified me of a deployment returnee that demonstrated signs of Post Traumatic Stress, or at a minimum adjustment difficulty….I found myself staring at this young man who returned from war essentially alone and carrying a lot of weight – the weight of his combat action in Ganjgal, the weight of the administrative investigations in its wake and the ambiguity that process can unfortunately generate, the weight of dealing with the implicit and explicit communication to him about how his visceral response was received by commanders and staff in ISAF [International Security Assistance Force], and the uncertainty of where his award recommendation stood as a result of all of this….[A]ll of these factors were cumulatively piled on top of a career decision that, were it not aggravated by all these other factors, is often sufficient enough to make young officers question whether or not to continue their career. 

….It became clear to me in subsequent conversations with LTC B-----m at FAO [Foreign Area Officer] Branch, and with [the applicant] once he landed at Joint Base Lewis McChord, that his stability and support never came to fruition and that [the applicant’s] opportunities for promotion and advancement were at risk….


4.  The applicant provides:

* DA Forms 67-9 (Officer Evaluation Report), 16 May 2006 through 11 November 2009
* Resignation letter and request to change previously-approved resignation request
* Statement from the COL B---n, USA (Ret.)

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service (6 March 2002 to 5 September 2002), the applicant was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 6 September 2002 with concurrent call to active duty.  

2.  He completed the Infantry Officer Basic Course and the Maneuver Captains Career Course and he was promoted to captain on 1 December 2005.  He served in:

* Afghanistan, from 1 December 2003 to 1 May 2004
* Iraq, from 19 October 2005 to 1 June 2006
* Afghanistan, from 11 August 2008 to 4 February 2010

3.  During his last deployment to Afghanistan, the applicant served on a Military Transition Team (MiTT) as an embedded advisor to the Afghan National Border Police.  On 8 September 2009, more than 60 well-armed enemy fighters ambushed the applicant’s combat team as it moved on foot into the village of Ganjgal for a meeting with village elders. 

4.  On 18 December 2009, the applicant’s rater initiated the award recommendation that the applicant receive the MOH.  The MOH packet was eventually lost at some level in the chain of command.  

5.  Following redeployment from Afghanistan on or about 4 February 2010, he returned to Fort Riley, KS.  He was assigned to the 1st Battalion, 16th Infantry, 1st Heavy Combat Brigade, 1st Infantry Division.  The applicant did not redeploy with a unit, but rather returned alone for reintegration processing.  After his reintegration, he was assigned to Joint Base Lewis McChord.

6.  On 12 February 2010, he submitted a request for unqualified resignation to be effective 15 August 2010.  He later changed the date of his separation to 
15 September 2010, and then 13 November 2010.  He indicated that he desired to further his education.  
7.  On 15 April 2010, Headquarters, 1st Infantry Division, Fort Riley, KS, published Orders 105-8 ordering his honorable discharge effective 29 April 2010.

8.  On 22 September 2010, he requested a voluntary change of his effective date of separation from 13 November 2010 to 1 February 2011 for the possibility of remaining in the Army.  The Fort Riley Garrison Commander recommended approval and stated the applicant was not given appropriate time at Reset and Integration following his redeployment from Afghanistan as a Military Transition Team Member. 

9.  On 30 September 2010, Headquarters, 1st Infantry Division, Fort Riley, KS published Orders 273-0012 amending his discharge date to 1 February 2011. 

10.  On 17 November 2010, the FY11 Operational Support (OS) Promotion Selection Board which considered the applicant and others for promotion recessed.  

11.  The applicant was honorably discharged on 1 February 2011.  The DD Form 214 he was issued shows he completed 8 years, 4 months, and 26 days of active service.  

12.  On 16 March 2011, the Army released the results of the FY11 MAJ board which showed the applicant’s selection for promotion.  

13.  On 26 May 2011, after having been referred to the Senate Armed Services Committee, the Fiscal Year 2011 MAJ Promotion Selection Board was confirmed by the Senate. 

14.  On 10 October 2013, the Secretary of Defense appointed the applicant in the rank of MAJ as a Reserve commissioned officer of the Army in accordance with Title 10, U.S. Code, section 12203.  No oath of office has yet been executed. 

15.  On 15 October 2013, the President presented the applicant the MOH for his acts of gallantry and intrepidity during the battle discussed earlier.  During the ceremony, both the Secretary of Defense and the Secretary of the Army acknowledged errors that resulted in the delay of the applicant’s award.  The Secretary of Defense stated:  

I want to also note something that was said here today, mentioned by the Chief [Chief of Staff of the Army], mentioned by the Secretary [of the Army].  Yes, [the applicant] proved his valor on the battlefield.  It is well documented.  It should be well documented.  But he also did something else that represented tremendous courage and integrity.  And I’ve always thought the two indispensable elements of anyone’s life are courage and character.  And if we’re without those in some measure, it’s a pretty hollow existence.

He questioned – he dared to question the institution that he was faithful and loyal to.  Mistakes were made in his case.  Now that’s courage and that’s integrity and that’s character.  As the institution itself reflected on that same courage and integrity institutionally, the institution, the United States Army, corrected the mistake.  They went back and acknowledged a mistake was made and they fixed it.

The Secretary of the Army likewise acknowledged mistakes were made in the processing of the MOH.  In his remarks, the Secretary announced changes to the processing of MOH nominations to ensure immediate visibility at Army Headquarters.  Each nomination and each subsequent review must now be forwarded to the Awards and Decorations branch at HRC.  

16.  An advisory opinion was obtained on 27 November 2013 from HRC in the processing of this case.  The HRC official recommended approval of the applicant's request.  He stated: 

	a.  He has reviewed the applicant's application and supporting documents for relief from the Board and has determined that full administrative relief, without action by the Board, is not possible.  He supports his reinstatement in the Army.  

	b.  He has reviewed the applicant's unqualified resignation dated 12 February 2010.  He also personally met with him and discussed the events that led to his resignation.  In his meeting with him, it was clearly evident that the primary factors in his resignation submission were his loss of faith in the Army due to the loss of his MOH recommendation and his perceived lack of potential for advancement in grade and responsibilities due to his career path.

	c.  The loss of the applicant's MOH recommendation was an administrative error on the part of the Army that is well documented by a command-level Army Regulation (AR) 15-6 investigation and a Department of Defense Inspector General investigation.  Furthermore, both the Secretary of Defense and Secretary of the Army specifically addressed this administrative error in their remarks at the Pentagon Hall of Heroes induction ceremony on 16 October 2013. On that very day, the Secretary of the Army signed Army Directive 2013-23, establishing procedures that will ensure future recommendations for the MOH are not lost. 

17.  The applicant was provided with a copy of this advisory opinion.  On 6 January 2014, his counsel concurred. 

18.  Title 10, U.S Code, section 629(d) provides, under regulations prescribed by the Secretary concerned, if an officer on the active-duty list 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, but before being promoted, the officer’s name shall be administratively removed from the list of officers recommended for promotion by a selection board. 

19.  Army Regulation 600-8-29 (Officer Promotions), paragraph 1-12d states an officer who is on a promotion list and is removed from the active duty list (ADL) prior to the effective date of promotion shall not be promoted from the ADL promotion list.  A subsequent return to the ADL does not warrant a return to promotion list status held prior to release from active duty.

20.  Title 10, U.S. Code, Section 628(a) provides if the Secretary of the military department concerned determines that because of administrative error a person who should have been considered for selection for promotion from in or above the promotion zone by a promotion board was not so considered, or the name of a person that should have been placed on an all-fully-qualified-officers list under section 624(a)(3) of this title was not so placed, the Secretary shall convene a special selection board under this subsection to determine whether that person (whether or not then on active duty) should be recommended for promotion. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s separation from the Army was not in error.  He submitted an unqualified resignation from the Army and it was processed in accordance with established procedures.  The loss of his MOH recommendation did not render his unqualified resignation invalid.

2.  However, partial relief is appropriate as a matter of equity.  Although no error occurred with the resignation, the loss of the MOH recommendation was a critical factor in the applicant’s decision to resign from the Army.  Given his career achievements and his service to the Army, his contention that he wanted to make the Army a career and would have stayed in the Army had his MOH recommendation been processed in a timely and transparent manner is accepted.  

3.  The applicant returned from Afghanistan with many valid concerns about his career progression.  His service on a MiTT deprived him of some annual OERs and Key Development opportunities that could have affected his promotion and chance for career progression.  The applicant tried to obtain information from his Branch and HRC concerning his career but felt under-supported and uninformed. His sense that the Army was not supporting him no doubt was exacerbated by the fact that he returned from Afghanistan following the battle at Ganjgal alone.  His belief that the MOH was lost was later confirmed by an Army 15-6 investigation and in comments from the Secretary of Defense and Secretary of the Army.  

4.  Accordingly, it would be appropriate to correct the record to show that the applicant did not resign from the Army on 1 February 2011 but rather continued with his career.  

5.  This correction renders the applicant’s request to correct the reason stated for his resignation moot and that part of the applicant’s request for relief should be denied.

6.  This correction, however, does not allow for his promotion as a result of his selection by the FY11 Operational Support Promotion Board.  By law, his name should have been removed from the list upon his separation.  Through an administrative oversight, it was not.  Though his name remained on the list forwarded to the Senate, his confirmation was void and no effect because he was no longer in the Army.  Since he was considered and selected by the FY11 Board, there are no provisions of law that would now allow for a Special Selection Board (SSB) using the FY11 Promotion Board criteria.

7.  His retroactive reinstatement to active duty does render him eligible for promotion consideration by an SSB using the FY12 criteria.  His records should be submitted to an SSB using the FY12 criteria for promotion consideration.

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:

* showing he never requested resignation, dated 12 February 2010
* voiding his 2010 discharge orders and the resulting DD Form 214
* crediting him with full pay and allowances (with any applicable offsets) from 1 February 2011 to the date of reinstatement
* providing his records to an SSB for promotion consideration using the FY12 Operational Support criteria
* inserting a statement of nonrated time to explain the absence of OERs from 1 February 2011 until the date of reinstatement
* removing all documents related to his resignation and subsequent discharge from his Army Military Human Resource Record

2.  This grant of partial relief is conditioned upon the applicant accepting reinstatement by reporting for duty at a place and location determined by the Army and/or HRC.  If the applicant does not fulfill this condition by reporting as so instructed by the Army or HRC, this grant of relief will have no effect and the applicant’s request for relief will be denied without further action by the ABCMR. 

3.  The Board further determined that the evidence presented is 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 change the stated reason for his resignation on his 12 February 2010 resignation request.




      ___________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)                                         AR20130018210



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ABCMR Record of Proceedings (cont)                                         AR20130018210



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