IN THE CASE OF:	  

		BOARD DATE:	  11 September 2014

		DOCKET NUMBER:  AR20130019807 


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 reinstatement from the Retired Reserve to the Individual Ready Reserve (IRR) and promotion to lieutenant colonel (LTC).  

2.  The applicant states:

	a.  This issue falls under the category of injustice.  He was a Reserve officer serving in the Michigan Army National Guard (MIARNG).  An administrative delay prevented him from promotion to LTC and forced him into retirement.  In 2010, a Selective Retention board decided to change his mandatory removal date (MRD) from its original date in 2017 to 31 August 2013.  That order further stated that if he was selected for promotion by the Department of the Army (DA) Reserve Components (RC) LTC Army Promotion List (APL) prior to the newly established MRD then he could elect to transfer to the IRR and continue to serve until 31 Aug 2017. 

	b.  In January 2013, the DA RC LTC APL met and considered him for promotion.  Results of that board were scheduled to be approved and published on 24 June 2013.  The scheduled approval date would have been prior to the 31 August 2013 MRD.  In June 2013, the results were administratively delayed until 25 September 2013.  This action is the key to the injustice.  In September 2013, due to the delayed promotion board results, the MIARNG chief of personnel delayed the order which would separate him from service.  The purpose of this was to see if the approval date would be before or after 31 August 2013.  The official release date was established as 3 October 2013.  He was selected for promotion to LTC. 
	c.  He was contacted by the personnel officer at Joint Force Headquarters, MIARNG, told that since the results of the board were approved and published after 31 August 2013 then he would not be promoted and must retire effective 31 August 2013.  The Personnel Chief contacted the National Guard Bureau (NGB) who concurred that the newly-created MRD takes precedence.  After years of waiting to be selected for promotion by the DA board an administrative delay prevented him from promotion and forced him into retirement.

	d.  The administrative delay and its repercussions are no fault of his own.  The personnel officer and others involved with this agree that this qualifies as an injustice.  The desired outcome of this would be that he be allowed to transfer to the IRR, pursue his promotion with U.S. Army Human Resources Command, and establish his new/original MRD as 31 August 2017.  

3.  The applicant provides: 

* Printouts from the Army Times regarding an administrative delay for Reserve promotion lists
* Separation election memorandum
* Notification of promotion status memorandum
* Military Personnel Message Number 13-271, Subject: Release of the Fiscal Year 2013 (FY13) LTC APL Army Reserve Active Guard Reserve (AR-AGR), Army Reserve Non-Active Reserve (AR Non-AGR), and ARNG Competitive Categories, Promotion Selection Boards
* DA Form 705 (Army Physical Fitness Test Scorecard)
* FY13 LTC APL RC Selection List, released 3 October 2013

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born in March 1963. 

2.  Having had prior enlisted service, he was appointed as a Reserve commissioned officer of the Arizona ARNG and executed an oath of office on 19 August 1989. 

3.  He resigned his ARNG commission and he was honorably released from the ARNG and transferred to the USAR Control Group (Reinforcement or IRR) on 17 August 2001. 

4.  On 19 October 2006, the U.S. Army Human Resources Command issued him a Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter). 

5.  He was promoted to major (MAJ) in the USAR and he was subsequently appointed in the MIARNG in the rank of MAJ and executed an oath of office 7 February 2008. 

6.  On 19 January 2012, by memorandum, MIARNG notified him that he was considered for promotion to LTC by the FY10 LTC APL but he was not selected.  However, a Selective Continuation Board recommended his continuation on the Reserve Active Status List (RASL) for a period of 2 years from the approval date of this Selective Continuation Board, not to exceed the maximum years of service allowed by law. 

7.  On 5 February 2012, by memorandum, MIARNG notified him that he was considered for promotion to LTC by the FY11 LTC APL but he was not selected.  However, he was previously selected by a Selective Continuation Board for continuation on the RASL and would be eligible to serve until 31 August 2013, which is the last day of the month he would attain 24 years of commissioned service. 

8.  On 9 September 2012, by memorandum, MIARNG notified him that he was considered for promotion to LTC by the FY12 LTC APL but he was not selected.  However, he was previously selected by a Selective Continuation (SELCON) board for continuation on the RASL and would be eligible to serve until 31 August 2013, which is the last day of the month he would attain 24 years of commissioned service. 

9.  On 4 September 2013, by memorandum, MIARNG notified the applicant that he was selected by the FY10 SELCON board to serve until 31 August 2013.  During that period, he remained eligible for promotion consideration to LTC.  

	a.  The FY13 DA RC LTC Mandatory Selection Board convened on 13 January 2013; however, the board results had not yet been received.  Results were expected this month.  

	b.  If he were selected, he could potentially be promoted to LTC and his MRD would change to allow him to serve until 28 years of commissioned service, establishing his MRD as 31 August 2017.  

	c.  If not selected, he must transfer to the Retired Reserve or be separated effective 31 August 2013.  If he desired to transfer to the Retired Reserve, he must execute an election statement. 


10.  On 21 October 2013, by memorandum, MIARNG notified the applicant that the FY13 LTC APL promotion board selected him for promotion to LTC but the approval occurred after his MRD had passed.  The FY13 LTC APL was approved on 20 September 2013 and was officially released on 3 October 2013.  

	a.  As his MRD was established based on the FY10 SELCON board and by law, he must separate no later than 31 August 2013, which is the last day of the month in which he completed 24 years of commissioned service. 

	b.  His separation processing was delayed as the MIARNG was awaiting the results of the FY13 promotion board and his request to transfer to the Retired Reserve.  

11.  On 28 October 2013, MIARNG published Orders 301-109 honorably separating him from the ARNG and transferring him to the Retired Reserve effective 31 August 2013. 

12.  An advisory opinion was received from the NGB on 22 August 2014 in the processing of this case.  An advisory official recommended disapproval of the applicant's request.  The official stated: 

	a.  A SELCON board in 2010 changed the applicant's MRD to 31 August 2013 which is the last day of the month in which he completed 24 years of commissioned service.  He was not selected for promotion to LTC by the FY11 and the FY12 DA promotion selection boards. 

	b.  Due to SELCON, he continued to serve until his MRD and during this time, he remained eligible for promotion selection.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers), paragraph 4-34b, states "Selectively continued officers, if otherwise eligible, will continue to be considered for promotion until separation."  Therefore, the applicant was eligible for promotion consideration by the FY13 DA promotion selection board. 

	c.  The applicant was considered and selected for promotion to LTC by the FY13 selection board.  However, the board results were released on 3 October 2013, after his MRD of 31 August 2013.  Therefore, he was retired effective 31 August 2013.  In accordance with Army Regulation 135-155, paragraph 4-34c, continuation for MAJs cannot be extended beyond 24 years.  Paragraph 4-34d(1) 



provides an exception and would allow a MAJ to serve beyond their MRD, if promoted or selected for promotion prior to reaching the MRD. 

	d.  He contends that a delay in the release of the board results caused his promotion selection to be after his MRD.  However, an administrative delay in the publishing date of DA board results causing it to be later than originally planned does not constitute an injustice.  The applicant cannot be retroactively promoted effective a date prior to the release of the board; in accordance with Army Regulation 135-155, paragraph 4-21a, ''The effective date and date of promotion, to include officers recommended on a second or subsequent mandatory board, will be no earlier than the approval date of the board." 

	e.  The MIARNG concurs with this recommendation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant held the rank of MAJ.  A SELCON board selected him for continuation on the RASL.  The period of continuation in the grade of MAJ was for 2 years from the approval date of the SELCON board, not to exceed the maximum years of service allowed by law.  

2.  The maximum years of service allowed by law for a MAJ is 24 years.  As such, his MRD was established as 31 August 2013.  Although he was selected for promotion to LTC by the FY13 DA promotion selection board, he could not be promoted to LTC prior to the approval date of this board.  It was approved on 20 September 2013 and released on 3 October 2012.  

3.  At the time of its approval and release, the applicant was past his MRD and was no longer on the RASL.  As such, he could not be promoted.  The administrative delay he raises does not constitute an injustice or an error.  Therefore, he is not entitled to the 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)                                         AR20130019807



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ABCMR Record of Proceedings (cont)                                         AR20130019807



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