BOARD DATE:	 9 September 2014 

		DOCKET NUMBER:  AR20130019686 


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 he be reinstated in the Active Guard Reserve (AGR) as a lieutenant colonel (LTC), pay grade O-5.

2.  The applicant states, in effect, that he was discharged on 1 August 2012 based on being twice nonselected for promotion; however, subsequent to his discharge the U.S. Army Human Resources Command (HRC) announced the results of the AGR Board and published orders promoting him to LTC, effective 28 August 2012.

3.  The applicant provides:

* his DA Form 67-9 (Officer Evaluation Report) for the period 25 July 2011 through 24 July 2012
* Orders C-05-290378, dated 16 May 2012
* Orders B-09-205624, dated 17 September 2012
* DD Form 214 (Certificate of Release or Discharge from Active Duty), effective 1 August 2012

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving on active duty as a mobilized U.S. Army Reserve (USAR) Troop Program Unit (TPU) Soldier.

2.  He was promoted to major (MAJ) on 2 June 2004 while serving as an AGR officer.
3.  He was considered and not selected for promotion to LTC by the 2010 and 2011 Reserve Components Selection Boards (RCSB).

4.  A memorandum from HRC, subject: Selective Continuation (SELCON) on the Reserve Active Status List (RASL), dated 30 January 2012, shows the applicant was notified that he was not selected by the Army Reserve Components Promotion Selection Board (PSB) for the second time.  The memorandum continued that the SELCON Board recommended him for continuation in his present grade and the Secretary of the Army approved the recommendation.  The memorandum further stated as an AGR officer, he had to be released from active duty (REFRAD) and from the AGR Program no later than the first day of the seventh month after the board had been approved.  Unless he specifically declined continuation, he would be continued on the RASL.

5.  A second memorandum from HRC, dated 30 January 2012, requested the applicant complete and return the attached Acknowledgement and Options Statement.  The statement listed the following acknowledgements:

	a.  He was presented the memorandum of notification releasing him from active duty due to failure of selection for permanent Reserve promotion.

	b.  He understood his REFRAD and from the AGR Program would be on the first day of the seventh month after the board had been approved.

	c.  He understood his release from an active Reserve status would be in accordance with Title 10, U.S. Code, section 14701 (Selection of Officers for Continuation on the RASL).

	d.  He was presented the memorandum stating he had been recommended to be selectively continued and could remain on the RASL in the Ready Reserve until he completed 24 years of commissioned service.

6.  On 10 February 2012, the applicant accepted SELCON on the RASL in the Ready Reserve.

7.  Orders C-05-207089, issued by HRC, dated 16 May 2012, and his DD Form 214 show the applicant was REFRAD effective 1 August 2012.

8.  The Fiscal Year 2012 (FY12) LTC APL, Army National Guard of the U.S. (ARNG), AGR, and Army Reserve Non-Active Guard Reserve (AR NON-AGR), Army Competitive Categories, Promotion Selection Board convened on 30 May 2012.  The board results were released on 28 August 2012 selecting him for promotion to LTC in the AGR competitive category.  On 17 September 2012, HRC published orders promoting him to LTC, effective 28 August 2012 (per phone conversation with HRC, Promotions Branch).

9.  During the processing of this case, on 20 March 2014, an advisory opinion was obtained from the Chief, Officer Accessions Branch, HRC.  The advisory official stated that the USAR AGR Program does not reinstate officers; they must re-apply and meet the current needs of the AGR Program.  Presently, the AGR Program did not need LTCs in the Logistics Branch.  The applicant was in the process of being removed from the AGR program for lack of promotion over two promotion boards (two time non-select).  The promotion board, in which the officer was selected, was held one month before his discharge was official.  His selection for promotion in which he states shows that he should be retained was already after the decision for discharge was made.  The applicant's desire to serve was noted but he was too senior for the needs of the USAR AGR Program.

10.  In the applicant's rebuttal, dated 15 April 2014, he stated that his selection by the LTC Army Active Guard and Reserve Promotion Board in 2012 indicates that he has great potential for continued service to the Army and the AGR program.  Whether or not it was a mistake in the advisory official's opinion, the facts are that he was selected.  The suggestion that he reapply to the AGR and that they do not have a need for LTCs is not the point.  He has been deployed multiple times whenever identified as required.  He has been harmed by this action.

11.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) provides policy and procedures for the selection and promotion of commissioned officers of the Army National Guard of the United States ARNGUS and the USAR.  Paragraph 4-34 states an officer twice non-selected 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 Secretary of the Army may direct a SELCON board to consider officers for continuation when required by the needs of the Reserve of the Army.  A SELCON Board must recommend the officers for continuation and the Secretary of the Army must approve the recommendation before officers may be continued.  Selectively continued officers, if otherwise eligible, will continue to be considered for promotion until separation.

12.  Army Regulation 135-18 (The Active Guard Reserve (AGR) Program), Table 2-6 states a Soldier is ineligible for subsequent duty in the AGR Program if the Soldier is being processed for involuntary release from AD because of non-selection for promotion by a mandatory officer promotion board convened by HQDA, unless subsequently selected.
13.  Title 10, U.S. Code, section 14506 (effect of failure of selection for promotion) states unless retained as provided in section 14701 (SELCON) 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 RASL, 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 20 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be reinstated in the AGR Program at the rank and pay grade of LTC/O-5.

2.  The evidence of record shows the applicant was serving as a MAJ in the AGR Program at the time he was twice non-selected for promotion to LTC.  After being notified of his required REFRAD and removal from the AGR Program he accepted SELCON on the RASL in the Ready Reserve on10 February 2012.

3.  His record was considered for promotion by the FY12 LTC APL Promotion Selection Board which convened on 30 May 2012.  He was REFRAD on 
1 August 2012.  On 28 August 2012, HRC released the promotion selection list, which included his name.  As a result, he was promoted to LTC in an AGR category with an effective date of 28 August 2012.

4.  The fact that he was considered and selected for promotion to LTC in an AGR category is not in dispute; however, he had already been released from the AGR program by time the board results were released.  Regulatory guidance states that a Soldier is ineligible for subsequent duty in the AGR Program if the Soldier is being processed for involuntary release from AD because of non-selection for promotion by a mandatory officer promotion board convened by HQDA, unless subsequently selected.  His selection to LTC came after his REFRAD, and more importantly after his removal from the AGR Program.  An AGR position is not an entitlement.  AGR positions are filled as needed to meet mission requirements.  In this case, his REFRAD and from the AGR were conducted in accordance with applicable regulations and statutes.  

5.  AGR positions are continuously advertised based on needs.  The applicant has the option to reapply for an AGR position. 

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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 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)                                         AR20130019686





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