IN THE CASE OF:  	  

		BOARD DATE:  2 June 2015	  

		DOCKET NUMBER:  AR20140017077 


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 to show continuance of Special Selection Board (SSB) Report RS1312-10 and reinstatement as a Reserve commissioned officer, if selected for promotion to colonel (COL)/pay grade (PG) O-6.

2.  The applicant states he was selected for promotion to COL (O-6) by the Fiscal Year 2010 (FY10) Promotion Selection Board (PSB).

   a.  After a year-long post-selection review, his name was removed from the promotion list and he was instructed that this action would be considered as a one-time non-select.  However, his mandatory retirement date (MRD) was increased to 30 years.

   b.  He was not considered for promotion by the FY12 PSB due to error.  He requested an SSB; however, the SSB process was incomplete when his MRD was returned to 28 years.  As a result, he was retired on 22 August 2014.

3.  The applicant provides a copy of a U.S. Army Human Resources Command (HRC), Fort Knox, KY, letter, dated 10 September 2014.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve commissioned officer, in the rank of second lieutenant, on 16 May 1986.  Upon completion of training he was branch detailed in the Engineer Corps.
2.  He was promoted to lieutenant colonel/PG O-5 on 30 December 2005.

3.  On 16 June 2011, the Chief, Reserve Retirements, HRC, Fort Knox, KY, notified the applicant that his eligibility for retired pay had been established upon attaining age 60 (a 20-Year letter).

4.  A review of the applicant's Official Military Personnel File (OMPF) revealed that a copy of HRC, Fort Knox, KY, memorandum, dated 23 June 2011, subject:  Promotion Review Board (PRB) Results (PRB 1103-03) with enclosures is filed in the restricted folder.  The documents show, in pertinent part:

   a.  He was selected for promotion to COL by the FY10 COL Army Promotion List (APL) Non-Active/Guard Reserve (AGR) PSB that recessed on 30 July 2010.

   b.  The promotion post-board screen identified the applicant as having unfavorable information in his file.
   
    	(1)  The file evaluation/basis for consideration was a military police (MP) report, dated 3 May 2002, that substantiated the applicant filed a false travel claim in what appeared to be fraud on the U.S. Government.

    	(2)  Headquarters, 24th Infantry Division (Mechanized), Fort Riley, KS, memorandum, dated 2 July 2003, shows the commanding general (Brigadier General D____ E. H____) issued an administrative reprimand to the applicant for filing a false travel voucher.  The basis for the reprimand was misconduct detailed in an MP report and a Commander's Inquiry directed by the applicant's brigade commander on 21 April 2003.

   c.  On 22 January 2011, the applicant submitted his response for consideration by the PRB, along with supporting documents.

   d.  The applicant's file was referred to a PRB for reconsideration of the applicant's promotion status.

   e.  On 18 March 2011, the PRB recommended the applicant be removed from the FY10 COL Army Reserve (AR) Non-AGR, Standing Promotion List.

   f.  On 21 June 2011, the Secretary of the Army directed the removal of the applicant from the FY10 COL, APL, AR Non-AGR Promotion List, under the provisions of Title 10, U.S. Code, section 14310, Executive Order 12396 (Defense Officer Personnel Management), and Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 3-18a.
   g.  On 23 June 2011, the Chief, Officer Promotions, Special Actions, HRC, notified the applicant of the Secretary of the Army's decision.  He also informed him that in accordance with Title 10, U.S. Code, section 629, an officer who is removed from the promotion list under this section continues to be eligible for consideration for promotion.  However, if such an officer is not recommended for promotion by the next regular promotion PSB, he shall be considered to have twice failed selection for promotion.

5.  The applicant was transferred to the U.S. Army Reserve (USAR) Control Group (Retired Reserve) effective 23 August 2014.

6.  In support of his request, the applicant provides a copy of an HRC, Fort Knox, KY letter, dated 10 September 2014, that shows the Chief, Officer Promotions, Special Actions, notified the applicant that, "[y]ou were eligible for promotion consideration by SSB under the 2012 criteria due to omission by Department of the Army Reserve Components [RC] Selection Board for the cited year.  Prior to approval of your special board report (RS1312-10), you were transferred to a Retired status.  Title 10, U.S. Code prohibits special boards for 'former officers' without directive/continuance from the Army Board for Correction of Military Records (ABCMR).  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 may upon request be returned to the Active Duty List (ADL) or the Reserve Active Status List (RASL) respectively, if fully eligible and promoted provided he/she meets all other promotion requirements."  He was also provided information on the procedures for submitting an application to the ABCMR.

7.  U.S. Code, Title 10, provides in:

* section 629 (Removal from a list of officers recommended for promotion):

* subparagraph a (Removal by President), the President may remove the name of any officer from a list of officers recommended for promotion by a selection board convened under this chapter.
* subparagraph d (Administrative Removal), under regulations prescribed by the Secretary concerned, if an officer on the ADL 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.


* subparagraph e (Continued Eligibility for Promotion), an officer whose name is removed from a list under subsection a, b, or c continues to be eligible for consideration for promotion.  If he is recommended for promotion by the next selection board convened for his grade and competitive category and he is promoted, the Secretary of the military department concerned may, upon such promotion, grant him the same date of rank, the same effective date for the pay and allowances of the grade to which promoted, and the same position on the ADL as he would have had if his name had not been so removed.  If such an officer who is in a grade below the grade of COL or, in the case of the Navy, captain is not recommended for promotion by the next selection board convened for his grade and competitive category, or if his name is again removed from the list of officers recommended for promotion, or if the Senate again does not give its advice and consent to his promotion, he shall be considered for all purposes to have twice failed of selection for promotion.

* section 14310 (Removal of officers from a list of officers recommended for promotion):

* subparagraph a (Removal by President), the President may remove the name of any officer from a promotion list at any time before the date on which the officer is promoted.
* subparagraph d (Administrative Removal), under regulations prescribed by the Secretary concerned, if an officer on the RASL 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 or having been found qualified for Federal recognition in the higher grade under title 32, but before being promoted, the officer's name shall be administratively removed from the list of officers recommended for promotion by a selection board.
* subparagraph e (Continued Eligibility for Promotion), an officer whose name is removed from a list under subsection a, b, or c continues to be eligible for consideration for promotion.  If that officer is recommended for promotion by the next selection board convened for that officer's grade and competitive category and the officer is promoted, the Secretary of the military department concerned may, upon the promotion, grant the officer the same date of rank, the same effective date for the pay and allowances of the grade to which promoted, and the same position on the RASL, as the officer would have had if the officer's name had not been removed from the list.

* section 14507 (Removal from the RASL for years of service:  reserve lieutenant colonels and colonels of the Army, Air Force, and Marine Corps and reserve commanders and captains of the Navy):

* subparagraph a (Lieutenant Colonels and Commanders), unless continued on the RASL under section 14701 or 14702 of this title or retained as provided in section 12646 or 12686 of this title, each reserve officer of the Army, Navy, Air Force, or Marine Corps who holds the grade of lieutenant colonel or commander and who 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 under section 14514 of this title on the first day of the month after the month in which the officer completes 
28 years of commissioned service.
* subparagraph b (Colonels and Navy Captains), unless continued on the RASL under section 14701 or 14702 of this title or retained as provided in section 12646 or 12686 of this title, each reserve officer of the Army, Air Force, or Marine Corps who holds the grade of colonel, and each reserve officer of the Navy who holds the grade of captain, and who 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 under section 14514 of this title on the first day of the month after the month in which the officer completes 30 years of commissioned service.  This subsection does not apply to the adjutant general or assistant adjutants general of a State.

8.  Executive Order 12396, dated 9 December 1982, shows that by the authority vested in the President of the United States of America by Section 301 of Title 3 of the United States Code, and in order to delegate certain functions concerning the appointment, promotion, and retirement of commissioned officers of the Armed Forces, it was ordered in:

* Section 1:  The Secretary of Defense is designated to perform, without approval, ratification, or other action by the President, the following functions vested in the President:  The authority vested in the President by Section 629(a) of Title 10 of the U.S. Code, to remove the name of any officer from a promotion list to any grade below commodore or brigadier general.
* Section 3:  The authority delegated to the Secretary of Defense by this Order may be redelegated to the Deputy Secretary of Defense, any of the Assistant Secretaries of Defense, and to any of the Secretaries of the military departments who may further subdelegate such authority to subordinates who are appointed to their office by the President with the advice and consent of the Senate.

9.  Army Regulation 135-155, Chapter 3 (Board Schedules and Procedures) provides in:

* paragraph 3-18 that commanders and the Commander, HRC, Office of Promotions (RC), will continuously review promotion lists to ensure that no officer is promoted who has become mentally, physically, morally, or professionally disqualified after being selected.  It also provides commanders and the Commander, HRC, Chief, Office of Promotions (RC), may recommend officers for removal for, in pertinent part, a memorandum of reprimand or any adverse documentation being placed in the OMPF.
* paragraph 3-19 that officers and warrant officers who have either failed of selection for promotion, or who were erroneously not considered for promotion through administrative error may be reconsidered for promotion by either a promotion advisory board or an SSB, as appropriate.  These boards are convened to correct/prevent an injustice to an officer or former officer who was eligible for promotion, but whose records through error, were not submitted to a mandatory promotion selection board for consideration.  It also shows records of officers or former officers will be referred for SSB action when the Officer of Promotions (RC) determines, in pertinent part, that the ABCMR requests such a referral.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show  the continuance of SSB Report RS1312-10 and his reinstatement as a Reserve commissioned officer, if selected for promotion to COL (O-6).

2.  The evidence of record shows the applicant was selected for promotion by the FY10 COL APL AR Non-AGR PSB.

   a.  As a result of the promotion post-board screen process, he was identified as having unfavorable information in his file.  His file was referred to a PRB for reconsideration of the applicant's promotion status.  The PRB recommended his removal from the FY10 COL (AR) Non-AGR, Standing Promotion List.

   b.  On 21 June 2011, the Secretary of the Army directed the removal of the applicant from the FY10 COL, APL, AR Non-AGR Promotion List.  He was also informed that he would continue to be eligible for consideration for promotion to COL as a one-time non-select for promotion.
3.  Based on the available evidence of record, it appears the applicant was not considered by the FY11 COL APL AR Non-AGR PSB because he had been selected for promotion by the FY10 COL APL AR Non-AGR PSB.  It is not clear why the applicant was not considered by the FY12 COL APL AR Non-AGR PSB.

4.  Serving in the grade of lieutenant colonel and having attained 28 years of commissioned service, the applicant was transferred to the USAR Control Group (Retired Reserve) effective 23 August 2014.

5.  The evidence of record shows the applicant was eligible for promotion consideration by SSB under the FY12 criteria due to omission by Department of the Army RC Selection Board.  However, prior to approval of the SSB report, the applicant was transferred to a retired status.

6.  Therefore, in view of the foregoing and as a matter of justice, it would be appropriate in this case to direct continuance of the special board for a former officer and correcting the applicant's records as recommended below, as is applicable.

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 a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by directing continuance of the special selection board for consideration of a former officer for promotion to colonel under the applicable fiscal year 2012 criteria.


   a.  If selected as a result of continuance of the special board and, subject to the promotion post-board screen process and with the understanding that, if selected, promotion is contingent upon Senate confirmation, further correct his records by voiding his removal from the Reserve Active Service 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 colonel with the appropriate date of rank, and paying to him any associated back pay and allowances.

   b.  If not selected for promotion, notify him accordingly and affirm no change in his U.S. Army Reserve Control Group (Retired Reserve) status.



      __________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)                                         AR20140017077



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ABCMR Record of Proceedings (cont)                                         AR20140017077



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