BOARD DATE:	  22 January 2015

		DOCKET NUMBER:  AR20140005331 


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 reconsideration of an earlier request for consideration for promotion to major (MAJ)/pay grade O-4 by a special selection board (SSB).

2.  The applicant states:

* He was eligible for promotion consideration by an SSB under fiscal year (FY) 2010 criteria based on an ABCMR directive
* Prior to approval of the SSB, he was transferred to a retired status

3.  The applicant provides:

* Tennessee Army National Guard (TNARNG) Orders 120-809 dated 30 April 2010
* TNARNG Orders 097-852 dated 8 April 2011 (two copies)
* TNARNG Orders 261-898 dated 17 September 2008 (two copies)
* Email between Army officials attempting to implement the ABCMR's directive (two copies)
* National Guard Bureau (NGB) completed action notifications
* NGB Special Orders Number 323 AR dated 11 December 2008
* NGB Special Orders Number 100 AR dated 13 May 2010
* DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) dated 9 March 2011
* Army Board for Correction of Military Records (ABCMR) Docket Number AR20100009466 dated 5 August 2010
* 
U.S. Army Human Resources Command (HRC) Notification Letter (Undated)
* NGB Final Determination Notification Letter
* Email between Army officials pertaining to the status his case

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 AR20100009466 on 5 August 2010.

2.  His arguments are new evidence that will be considered by the Board.

3.  In ABCMR Record of Proceedings dated 5 August 2010, the Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommended that all Department of the Army records of the individual concerned be corrected by:

	a.  Changing the applicant's date of rank (DOR) to captain to 4 April 2004.

	b.  Amending NGB Special Orders Number 323 AR, dated 11 December 2008, to show he was granted Federal Recognition effective 17 September 2008 in the rank of captain with a DOR of 3 April 2004.

	c.  Changing item 12i of the applicant's DD Form 214 with a separation date of 16 April 2010 to show 2004 04 03 instead of 2001 03 20.

4.  The Board also recommended that all Department of the Army records of the individual concerned by corrected by:

	a.  Submitting his records to an SSB for promotion consideration to the grade of major under the criteria of the FY 2010 Major Department of the Army (DA) Reserve Component Selection Board.

	b.  If selected for promotion to major by the SSB, by establishing his major promotion effective date and DOR as if he had been originally selected and by providing him all back pay and allowances due as a result.

	c.  If not selected for promotion, he should be so notified.

5.  On an unknown date, the applicant was notified by the Chief, Special Actions, DA Promotions that he was eligible for promotion consideration by an SSB under the FY10 criteria based on an ABCMR directive.  He was told that prior to the approval of the SSB he was transferred to a retired status and that based on Title 10 USC, special boards for "former officer" without directive from the ABCMR cannot occur.  He was told if a former officer is selected by a special board, it is at the discretion of the Secretary of the Army via the ABCMR to determine if the discharge/retirement order should be revoked, the officer returned to an active status and promoted provided he/she meets all other promotion requirements.  The applicant was told now that he is retired he must submit a DD Form 149 to the ABCMR to request special board consideration under the FY10 criteria.

6.  During the processing of this case and advisory opinion was obtained from the NGB Chief, Personnel Policy Division who recommends approval of the applicant's request.

7.  On 1 April 2014, a copy of the advisory opinion was forwarded to the applicant for his information and/or possible rebuttal.  The advisory opinion was returned as undeliverable.

8.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) specified that promotion reconsiderations 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 is of such a nature that in the judgment of the reviewing official, it caused an individual's non-selection by a promotion board and, had such error(s) been corrected at the time the individual was considered, a reasonable change would have resulted in that individual's recommendation for promotion.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered and appear to have merit.

2.  He has provided sufficient evidence to support his contention that he was eligible for promotion consideration by an SSB under FY 2010 criteria and that he was retired prior to SSB approval.  His removal from an active status was the only reason his SSB was cancelled.

3.  In view of the foregoing, it would be equitable to correct his records by forwarding his records to an SSB for consideration for promotion to MAJ under the applicable criteria, but only as recommended below.


BOARD VOTE:

____x____  __x______  _x____  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20100009466, dated 5 August 2010.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  Submitting his records to an SSB for consideration for promotion to MAJ under the applicable criteria.

	b.  If selected for promotion by the SSB, further correct his records by voiding his removal from the Reserve Active Status List showing he met all the eligibility criteria for promotion selection effective the approved date of the promotion selection board, promoting him in due course in accordance with Army Regulation 135-155 to MAJ with the appropriate date of rank, and paying him any associated back pay and allowances.

	c.  If not selected for promotion, notifying him accordingly.




      _______ _  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)                                         AR20140005331



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ABCMR Record of Proceedings (cont)                                         AR20140005331



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