IN THE CASE OF:	  

		BOARD DATE:	  20 August 2015

		DOCKET NUMBER:  AR20140020508 


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 military records by showing he was promoted to colonel (COL), pay grade O-6 and retired as such.

2.  The applicant states he was a Department of the Army select lieutenant colonel (LTC), pay grade O-5 serving in the Active Guard Reserve (AGR) program.  Due to grade control requirements and limited availability of positions, he could not be promoted to COL.  On 15 February 2013, he resigned from the AGR program and became a traditional (M-Day) Soldier.  He immediately deployed.  He could not be promoted because he was serving in an LTC position.  Because the California Army National Guard (CAARNG) was over-strength in COL positions the ARNG could not promote him.  Upon returning from mobilization, he was transferred to directly to the US Army Reserve (USAR) Control Group Retired Reserve.  He was not promoted as part of his separation processing.

3.  The applicant provides copies of:

* A Memorandum, CAARNG, subject: Department of the Army (DA) Mandatory Selection Board, dated 4 December 2012
* Orders 039-325, State of California, dated 8 February 2013
* Orders 46-1500, CAARNG, dated 15 February 2013
* Orders HO-072-0042, Fort Hood, Texas, dated 13 March 2013
* A Memorandum, CAARNG, subject: Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty, dated 30 July 2013
* A Memorandum from the applicant to the CAARNG, subject: Delay of Promotion as a Reserve of the Army and ARNG, dated 31 July 2013
* Orders HO-072-0042(A1), Fort Hood, Texas, dated 19 September 2013
* Orders 8-1012, CAARNG, dated 8 January 2014
* Orders 21-1460, CAARNG, dated 21 January 2014
* E-Mail communications between Fort Hood, Texas and the National Guard Bureau, dated 3 to 29 January 2014
* DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 28 February 2014

CONSIDERATION OF EVIDENCE:

1.  On 1 May 2007, the applicant was promoted to LTC.

2.  In a memorandum dated 4 December 2012, as provided by the applicant, he was informed by the G-1 (Personnel Officer), Army Division, CAARNG, that he had been selected for consideration for promotion to COL by the DA Mandatory Promotion Board based on his date of rank for LTC earlier than 30 September 2007.

3.  Orders 039-325, State of California, dated 8 February 2013, mobilized the applicant.  He was directed to report to Fort Hood, Texas on 19 February 2013 for duty in support of Operation Enduring Freedom.  The length of his active duty was not to exceed 400 days.

4.  Orders 46-1500, CAARNG, dated 15 February 2013, immediately released the applicant from active duty and assigned him to the 1106th Aviation Theater Sustainment Maintenance Group.  The orders state the reason for this action was “involuntary.”

5.  Orders HO-072-0042, Fort Hood, Texas, dated 13 March 2013, directed the applicant to proceed on deployment with his unit to Arifjan, Kuwait on 22 March 2013.

6.  A memorandum from the CAARNG, dated 30 July 2013, informed the applicant of his selection for promotion to COL by the DA Mandatory Selection Board.  He was told that he had to remain in an active status and to meet the promotion eligibility criteria set forth in Army Regulation 135-155 (Officer Promotions).  Failure to do so may result in his removal from the selection list.  His was also advised that he must be assigned to a position authorized a grade equal to or higher than the grade in which he was selected to be promoted.  If no position was available, he had to choose one of the following options and return his decision no later than 1 September 2013.
	a.  He could choose to accept the promotion in the Individual Ready Reserve (IRR).  This option required him to submit a letter of resignation wherein he would request transfer to the IRR.

	b.  He could choose to remain assigned to the CAARNG and delay his promotion by signing a memorandum that was attached.

	c.  He could choose to decline the promotion.  This would result in his removal from the promotion list and he would be considered a non-select by the board.

7.  In a memorandum, dated 31 July 2013, the applicant stated he wanted to delay his promotion to COL to a date no later than 15 July 2014.  He indicated his understanding that by delaying his promotion, his name would be retained on the promotion list until 15 July 2014.  He also understood that he could request annually one-year extensions of his promotion delay, not to exceed 15 July 2016.  He also acknowledged that during the period of delay, or at the end of the approved period of delay, he had to choose one of the following options; otherwise, he would be removed from the promotion list and he would not be eligible for promotion.

	a.  He could accept promotion into a higher graded position, if available.

	b.  He could transfer to the IRR and be promoted.

	c.  He could decline promotion and have his name removed from the promotion list.

8.  Orders 8-1012, CAARNG, dated 8 January 2014, announced the applicant’s separation from the CAARNG effective 28 February 2014.  He was transferred to the USAR Control Group (Retired Reserve).

9.  Orders 21-1460, CAARNG, dated 21 January 2014, announced the applicant’s placement on the Retired List, effective 1 March 2014, in the rank of LTC, pay grade O-5.  The orders indicate his voluntary retirement based on 
21 years, 2 months, and 28 days, and over 27 years for basic pay.

10.  The email communications provided by the applicant relate the following discussions between 3 and 29 January 2014 concerning his promotion and retirement status.

	a.  On 3 January 2014, a captain at Fort Hood, Texas, informed a civilian at the NGB that the applicant was currently assigned at Fort Hood and had orders for retirement on 1 March 2014.  The question was asked whether they could promote the applicant to COL once he was placed in the USAR Control Group.  The contention was made that it would not affect his retirement pay or take up a position.

	b.  On 8 January 2014, the civilian at NGB answered to Fort Hood, Texas, that the applicant would first be transferred to the USAR Control Group and then be promoted based on the DA Selection notification.

	c.  On 28 January 2014, the civilian at NGB sent an email to a sergeant first class at NGB, referring to an earlier discussion about the applicant being transferred to the IRR and that he had been selected for promotion to COL, pay grade O-6.  He asked the sergeant to explain the process.

	d.  On 29 January 2014, the sergeant at NGB informed the civilian at NGB that as long as the applicant had not exceeded his delay period he would be promoted the day after transferring to the IRR.

11.  A DD Form 214 shows the applicant was retired on 28 February 2014 due to length of service, in the rank of LTC, pay grade O-5.

12.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB, who recommended disapproval of his request.  The advisory opinion further states:

	a.  The applicant was selected for non-retention in the AGR program by the calendar year 2012 Officer Active Service Management Board.  This action prohibits his return to the AGR program.

	b.  The applicant retired with a Regular active service retirement under Title 10, U.S. Code, section 3911 on 28 February 2014, and was transferred to the Retired Reserve the following day.  As a retiree receiving retired pay, he is ineligible for further promotion.

	c.  Title 10 U.S. Code, section 1370 states the retired grade of a commissioned officer who is retired under any provision of law other than disability or non-regular (Reserve) retirement will be in the highest grade in which he served satisfactorily on active duty.  The applicant’s highest grade satisfactorily served on active duty was LTC, pay grade O-5.

	d.  The CAARNG concurred with the advisory opinion.

13.  The applicant made the following rebuttal comments in a letter dated 24 July 2015:

	a.  He requested that the advisory opinion be rejected because the NGB failed to support his argument and request for retroactive promotion to COL, pay grade O-6.

	b.  He noted that the NGB incorrectly referred to his orders from the CAARNG by citing the wrong order number.  This particular order indicated he was involuntarily released from the AGR.

	c.  He argues that he was an M-Day Soldier who had volunteered for mobilization.  He was not afforded the opportunity to be promoted in the CAARNG due to over grade issues.  He contends that he should have been released from the CAARNG to the USAR Control Group and then promoted.  He states the transfer occurred but the promotion did not.

	d.  He cites Title 10, U.S. Code 1370 (a) (3): “A reserve or temporary officer who is notified that he will be released from active duty without his consent and thereafter requests retirement under section 3911 of this title and is retired pursuant to that request is considered for purposes of this section, to have been retired involuntarily.”  As such, he contends he was involuntarily separated from active duty based on non-retention in the AGR program in 2012.  Although he voluntarily requested an active duty retirement, this provision mandates that it be classified as involuntary.

	e.  He states he was entitled to promotion due to his involuntary separation from the AGR program and again from mobilization.  He was a DA select for promotion and unable to be promoted due to no fault of his own.  The process existed to promote him but was not correctly followed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction of his military records by showing he was promoted to COL, pay grade O-6 and retired as such.

2.  The evidence shows the applicant was selected in calendar year 2012 for non-retention in the AGR program.  He was subsequently released from active duty.  He was mobilized and ordered to active duty in support of OEF with a will proceed date of 22 March 2013.

3.  The applicant was notified in a 30 July 2013 memorandum that he had been selected for promotion to COL, pay grade O-6.  He was given the option of transferring to the IRR and being promoted; delaying his promotion; or declining his promotion.  He chose to delay it until July 2014.  However, it appears he later decided to request a Regular Army retirement in conjunction with his return from deployment.  He was accordingly so retired in the rank of LTC, pay grade O-5.

4.  There is no evidence showing that the applicant was denied the opportunity prior to retiring of transferring to the IRR and being promoted.  However, there was no guarantee he would have been subsequently returned to active duty as a COL.

5.  The law is quite clear concerning retired rank and pay grades for Regular active service retirements.  The officer’s highest grade in which he served satisfactorily on active duty will be the officer’s retired grade.  The applicant’s highest grade served on active duty was LTC, pay grade O-5.  Accordingly, there is no error or injustice in this case.

6.  In view of the above, there is no apparent error or injustice in the applicant's case.  Therefore, his request should be denied.

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)                                         AR20130001466



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ABCMR Record of Proceedings (cont)                                         AR201420508



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