BOARD DATE: 17 July 2014 DOCKET NUMBER: AR20130014503 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: a. his date of rank (DOR) to lieutenant colonel (LTC) be adjusted from 13 April 2005 to 15 June 2008 to correspond with the U.S. Army Human Resources Command (HRC) adjusted Cohort Year Group 1993; b. his four Promotion Board pass-over's be zeroed out; c. the corrected record be considered by a Special Selection Board (SSB) related to Promotions, Command Senior Service College (SSC), and Professor of Military Science (PMS); and d. his name be deleted from the August 2013 Selective Early Retirement Board (SERB). 2. He states: a. He has endured catastrophic and irreversible detriment to his military career over the last 7 years of service. The initial error occurred when HRC incorrectly adjusted his Regular Army (RA) DOR to 17 June 2004, effective 6 November 2006. b. He has continuously been passed over for promotion, command, SSC, and PMS boards despite multiple exceptional recommendations from his raters and senior raters. He has had an exceptional career including a mix of "Above Center of Mass" (ACOM) and "Center of Mass" (COM) Officer Evaluation Reports (OERs) and awards. c. The U.S. Forces Korea (USFK) Headquarters and Headquarters Battalion (HHB) S-1 and the USFK J-1 Office reviewed his records on or about 3 May 2012 and discovered his DOR had never been correctly adjusted upon his return to the RA under the Reserve call to active duty order with an indefinite status. d. The erroneous action by HRC has also caused severe repercussions on his RA career. He was prematurely slated for the O-6 Promotion Board during his first year on active duty. He only had two Reserve OERs in the interactive Personnel Electronic Records Management System (iPERMS). The first OER shows he was a U.S. Army Reserve (USAR) major (MAJ) on 2 weeks of annual training and the second OER shows he was a USAR LTC activated to serve with the 18th Airborne Corps for 1-year. e. He was not competitive with his RA peers on his below the zone (BZ) look for O-6 and he was not competitive with his RA peers on the follow-on SSC, PMS, and command boards, specifically the 2007-2008 boards. f. He prematurely went before an entire gambit of boards during his second year on active duty in his primary zone (PZ) with one active duty OER. This OER was signed by him and his rater on 17 April 2007 and then signed by his senior rater on 13 December 2007. He claims that all RA LTCs are given three or four years from their DOR to build their records before they are BZ and PZ for any board; however, he was not afforded that opportunity. g. He contacted his Armor Branch Managers concerning his active duty DOR (ADOR) and he personally visited HRC at Fort Knox to correct the situation. After he returned to Korea, he received a message that Promotions Branch had reviewed his records and determined his ADOR was correct. h. He was notified by the USFK J-1 (Joint Personnel Office) on 8 April 2013 that per Military Personnel (MILPER) Message Number 13-089, he had been identified by Armor Branch as being eligible for the upcoming SERB which convened on 13 August 2013. i. He contacted the Deputy USFK J-1 about his ADOR issue and its effect on his eligibility for the SERB. The Deputy USFK J-1 reviewed his records and found that his ADOR was incorrect and should have been adjusted properly in 2006. After over approximately 2 months of communication traffic between the USFK J-1's office and HRC-Fort Knox, it was confirmed that his ADOR was obviously incorrect. HRC-Fort Knox posted orders that adjusted his RA DOR to 13 April 2005, which was over six years late. However, this still doesn't take into account that he didn't return to active duty until 12 April 2006 and this does not afford him the 3 or 4 years granted to all LTC RA peers' DOR before their BZ look. j. This situation was briefed to a colonel (COL) who reported the issue to a general officer prior to his SERB counseling. During the SERB counseling, he briefed the general officer on the historical background and message communication between USFK staff personnel and HRC. He was advised to file an Inspector General (IG) complaint. Therefore, he immediately filed a complaint. k. He travelled to HRC-Fort Knox and met with a civilian staff member and two military officers. He claims it was discovered that HRC was systematically discriminating against USAR officers being called to active duty. Also, Promotions Branch was complicit in this discrimination, was aware of the discrimination, and took no action to correct the discrimination. He informed the individuals that he was aware of three USFK peers who are all USAR officers, none being promoted, selected for command and SSC, and having the same issues with incorrect RA DORs, which destroyed their potential competiveness with their peers. He states the individuals at Promotions Branch understood his frustration with his treatment at HRC and the U.S. Army. Their defense was that Army regulations would need to be adjusted because they were following regulations and policies written at the Army Staff level and that their hands were tied by having to enforce those regulations at the HRC level. He was advised to appeal to this Board. l. He and the USFK staff have tried to work within the Army's administrative channels since the initial error was discovered on 3 May 2012. He's appealing to this Board as a last resort to salvage his military career. m. His senior rater gave him a rating of "COM" and he was not selected as a candidate for the Special Troops Battalion based on his DOR. Although he explained his issue, it was assumed he had been passed over for incompetence or poor performance and senior raters are not inclined to give ratings of "ACOM" to officers with multiple passover's for promotion. 3. He provides: * AHRC-PDV-PAO Form 100 (Computation of DOR) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * ARPC Form 249-E (Chronological Statement of Retirement Points) * Promotion Order Number 310-002 * Amendment Order Number 121-001 * Board History Report * Email correspondence * DA Form 2496 (Disposition Form) * Memorandum for Promotion as a Reserve Commissioned Officer * Assignment instructions * Screen Shot * Six DA Forms 67-9 (Officer Evaluation Report (OER)) * Reserve Point Information * Active duty orders * Nine DA Forms 4037 (Officer Record Brief) * Service Computation for Retirement * DA Form 1059 (Service School Academic Evaluation Report) * DA Form 1506 (Statement of Service - for Computation of Length of Service for Pay Purposes) * Four Leave and Earnings Statements CONSIDERATION OF EVIDENCE: 1. At the time the applicant submitted his application, he was serving in the Regular Army in the rank of LTC. 2. The applicant enlisted in the Army National Guard on 10 March 1979. He was discharged from the Army National Guard and the USAR on 8 May 1981 for the purpose of accepting a commission in the U.S. Armed Forces. 3. On 9 May 1981, he was appointed as a Reserve second lieutenant in the Army National Guard. On 26 September 1983, he was discharged from the Army National Guard and was transferred to the USAR Control Group (Reinforcement). 4. On 27 September 1983, he was ordered to active duty. 5. On 21 May 1986, he requested early release from active duty (REFRAD), effective 5 September 1986 and he was subsequently honorably REFRAD on 5 September 1986. On the following date, he was transferred to a Reserve unit. The DD Form 214 issued for this period shows he completed 2 years, 11 months, and 9 days net active military service; 3 months and 10 days total prior active service; and 4 years, 3 months, and 2 days total prior inactive service. 6. On 14 May 1989, he was ordered to active duty for training (ADT) and was released from ADT on 11 August 1989 after completion of 2 months and 28 days of active military service. 7. He was promoted to MAJ on 6 May 1995. 8. He provided a DA Form 2496, dated 18 May 1995, which shows he assumed command of the 5062nd Area Support Group (Reserve Training Unit (RTU)), effective 18 May 1995. 9. He was issued a Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter) on 2 January 2002. 10. On 15 November 2002, he was ordered to active duty in support of Operation Noble Eagle and subsequently served in Afghanistan from 15 December 2002 to 15 May 2003. He was REFRAD on 31 July 2003. On the following day, he was transferred to the USAR Control Group (Individual Ready Reserve). The DD Form 214 issued for this period shows he completed 8 months and 16 days net active military service; 5 years, 9 months, and 12 days total prior active service; and 17 years, 10 months, and 23 days total prior inactive service. 11. He was promoted to LTC, effective 17 June 2004 while in the Reserve Component. 12. On 23 January 2005, he was ordered to active duty in support of Operation Iraqi Freedom. He was REFRAD on 22 January 2006 in the rank of LTC with an effective date of pay grade of 17 June 2004. On the following day, he was transferred to the USAR Control Group (Individual Mobilization Augmentee (IMA)). The DD Form 214 issued for this period shows he completed 1 year net active military service this period; 4 years, 5 months, and 4 days total prior active service; and 21 years, 5 months, and 9 days total prior inactive service. 13. He provided the following documents: a. ARPC Form 249-E, dated 14 April 2005, shows he was credited with 26 years of qualifying service for retired pay at age 60. b. Print-out of his Reserve points, dated 19 January 2006, shows a handwritten entry indicating he had 1,288 total Reserve points. c. HRC Assignment Instructions, dated 5 April 2006, shows he was reassigned to the Eighth Army in Korea on 1 June 2006. 14. Orders A-04-69290, dated 11 April 2006, show he was called to active duty in a voluntary indefinite status on 1 June 2006 in order to fulfill an Active Army requirement. He was assigned to the U.S. Army Contracting Command in Korea. 15. He also provided the following documents: a. HRC, Order Number 310-002, dated 6 November 2006, which shows his LTC ADOR was determined to be 17 June 2004. b. OERs which show: Period Covered Rank/Duty Title Performance and Potential Evaluation (Rater) Senior Rater Rating 20020728-20030515 (10 months) MAJ/Chief, Joint Visitors Bureau Outstanding Performance, Must Promote Best Qualified/COM 20040503-20040514 (1 month) MAJ/Corps Liaison Officer Outstanding Performance, Must Promote Best Qualified/COM 20050123-20060122 (12 months) LTC/Director, G3 Plans and Exercises Outstanding Performance, Must Promote Best Qualified/COM 20060916-20070420 (8 months) LTC/Senior Theater Watch Officer Outstanding Performance, Must Promote Best Qualified/COM 20070421-20080420 (12 months) LTC/ATEC T&E Cell Evaluation Coordinator Officer/Evaluation Officer Outstanding Performance, Must Promote Best Qualified/ACOM 20080420-20081027 (6 months) LTC/ATEC T&E Cell Evaluation Coordinator Officer/Evaluation Officer Outstanding Performance, Must Promote Best Qualified/ACOM 20081028-20100417 (12 months) LTC/Red Team Chief Outstanding Performance, Must Promote Best Qualified/COM 20100418-20110301 (11 months) LTC/Red Team Chief Outstanding Performance, Must Promote Best Qualified/COM Period Covered Rank/Duty Title Performance and Potential Evaluation (Rater) Senior Rater Rating 20110301-20120229 (12 months) LTC/Ground/Combined Joint Plans Officer Planner Outstanding Performance, Must Promote Best Qualified/COM 20120301-20130228 (12 months) LTC/Chief, Ground Forces Branch Outstanding Performance, Must Promote Best Qualified/COM c. Several copies of his ORB, with various dates, which reflect his Cohort Year Group both as 1981 and 1993. d. ARPC Form 249-E (page 1), dated 14 April 2010, which shows he was credited with 27 years of qualifying service for retired pay at age 60 and a Board History Report which indicates he was considered by the following boards: Fiscal Year (FY) Board Title 2007, 2008, 2009, 2010, 2011, 2012, and 2013 COL Maneuver, Fires and Effects (MFE) Promotion Board 2009 PMS Board 2011 COL MFE Board 2011 and 2012 SSC MFE Board 2012, 2013, and 2014 LTC MFE Command Selection Boards 2013 COL MFE Command Selection Board 2013 PMS CSB - Active Component (AC) 16. He was considered, but not selected by the FY10, FY11, FY12, and FY13 COL Promotion Selection Boards (PSB). 17. He provided an AHRC-PDV-PAO Form 100, dated 1 May 2013, which lists his periods of creditable service as 17 June 2004 to 22 January 2005 (0 days) and 23 January 2005 to 22 January 2006 (365 days). This form indicates his DOR to LTC was adjusted from 17 June 2004 to 13 April 2005. 18. Order Number 121-001, dated 1 May 2013, amended Order Number 310-002, dated 6 November 2006, by changing his DOR to LTC from 17 June 2004 to 13 April 2005. 19. HRC published Order Number 121-001, dated 1 May 2013, which amended Order Number 310-002, dated 6 November 2006, to show his DOR to LTC was adjusted from 17 June 2004 to 13 April 2005. 20. In June 2013, the IG recommended the applicant apply to the ABCMR to appeal his DOR for promotion to LTC. 21. On 22 November 2013, an advisory opinion was obtained from the Chief, Officer Promotions Management, HRC-Fort Knox who opined that the applicant's current DOR to LTC was correct. a. On 1 May 2013, Officer Promotions processed the officer's DOR request and subsequently adjusted his DOR to LTC to 13 April 2005. The applicant's original first day in the Active Component as part of his call to active duty entry on 13 April 2006 was backdated for each day of Active Federal Service in the respective same grade as established by Army Regulation 600-8-29 (Officer Promotions), paragraph 1-40. b. The applicant was originally promoted to LTC in the Reserve Component on 17 June 2004 and his ARPC Form 249-E and DD Form 214 (22 January 2006) clearly show that he had at a minimum one year of active service in the existing pay grade prior to his entry on the Active Duty List. c. Based upon this DOR adjustment, the applicant's subsequent erroneous consideration and resulting non-selection for the FY08, COL, Army Competitive Category (ACC), PSB was vacated. However, the remaining considerations and respective non-select statuses for the FY09-FY13, COL ACC, PSBs were substantiated. In addition, his consideration by the FY13, COL SERB, based on being a two-time or more non-select for promotion to COL, was likewise substantiated with the associated results expected to be released in the January 2014 timeframe. d. The applicant has not provided any proof of the Army systematically discriminating against officers called to active duty or that HRC was complicit in discrimination against him. The applicant has provided mere vague conjuncture that is speculative in nature. The exact reasons for his non-selections for promotion are unknown because statutory requirements set forth in Title 10, U.S. Code (USC), Section 613a prevent disclosure of board proceedings to anyone outside the promotion board in question. e. The decision to recommend an officer for promotion is based upon the criteria established by the Secretary of the Army and the collective judgment of the respective board members as to the relative merit of an officer's overall record when compared to the records of other officers being considered and the general career path for each rank and branch as established in Department of the Army (DA) Pamphlet 600-3 (Commissioned Officer Professional Development and Career Management). f. It can only be concluded that the previous promotion boards determined that his overall record, when compared with the records of his contemporaries in the zones of consideration, did not reflect as high a potential as those selected for promotion. g. Without question, the applicant received fair and equitable consideration for promotion. The decision not to select him for promotion does not mean that he is not a quality officer. Rather, it is indicative of the very competitive nature of the promotion system and the quality of the officers that he competed against for promotion to COL based upon the limited number of available COL billets. h. The applicant has not provided any material errors that would constitute reconsideration of any of his Promotion Boards for the FY09-FY13 timeframe in accordance with (IAW) Title 10, USC, Section 628 and Army Regulation 600-8-29, paragraph 7-2. Finally, policy boards (i.e., Command, key billet, or school selection) are not eligible for SSB consideration IAW Office of the Deputy Chief of Staff, G-1, Officer Selection Board Policy Branch Standing Operating Procedures (SOP), dated 3 July 2013. 22. A copy of the advisory opinion was forwarded to the applicant in order to allow him to provide comments or a rebuttal. On 8 January 2014, he submitted a rebuttal to the advisory opinion and stated: a. The HRC Promotions Branch was negligent; his record was prematurely and erroneously sent to various boards the last 6 years with a wrong ADOR. b. The DOR and Cohort Year Group are the primary discriminators in determining criteria/eligibility on every board, career assignment, and progression in the U.S. Army. HRC Promotion Branch's negligent behavior, even when presented with indisputable evidence, failed repeatedly to admit they were wrong. This has caused significant harm to his military career. c. The HRC Promotions Branch readily admits that his ADOR was incorrectly adjusted on 6 November 2006 to 17 June 2004. On 3 May 2012, during a routine review of his records by USFK HHB and USFJ J-1 staff it was discovered that his initial ADOR was incorrect. He immediately contacted his Armor Branch managers about the incorrect ADOR and then a follow-up with a personal visit to HRC on 28 May 2012. He presented the documentation showing what corrections needed to be made with justification and his branch manager stated he would contact the Promotions Branch and get the issue resolved. d. On 6 June 2012, he received an email from the Armor Branch that indicated the Promotions Branch had reviewed the issue and concluded that his ADOR as of 6 November 2006 was correct. Again, on or about 8 April 2013, his records were reviewed by the USFK J-1 staff and his ADOR was deemed to be incorrect. It was later determined his ADOR was incorrect and orders were posted on 1 May 2013 showing his ADOR as 13 April 2005. e. The HRC Promotions Branch admitted that his ADOR was not corrected until 1 May 2013 under the current regulation. This means that every Promotion, command, PMS, SSC, and SERB board between 2006 and 2013 evaluated his file with an incorrect ORB and OER data, directly administered and annotated by the HRC Promotions Branch. f. Under current Army regulation guidelines in determining ADOR, inherent discrimination is creating a "second class" of officers. Active service and active duty are "technically" different and in no manner the same. ARNG and USAR officers who serve on active service with an active duty unit or organization are still ARNG/USAR officers, not active duty officers, who are "seen" and treated completely different in the eyes of their active duty supervisors, peers and subordinates. g. Active duty officers are given 3 or 4 years from their DORs to build an active duty résumé of evaluations/work before an initial promotion board review. In many of the call to active duty cases, officers are not afforded that opportunity. They are not given an opportunity to compete on a "level playing field." h. He posed several questions he would like this Board to ask HRC regarding promotion of LTCs called to active duty versus active duty LTCs. 23. Army Regulation 600-8-29 prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the active duty list. The regulation provides that the Secretary of the Army will serve as the senior official on matters concerning officer promotions. Selection for and promotion to the grades of major general MG, brigadier general (BG), COL, LTC, MAJ, and captain will be according to sections 611 through 626 and 628, Title 10, U.S. Code (USC) (10 USC 611 through 626 and 628). 24. Paragraph 1-40b(1) of Army Regulation 600-8-29 states that the ADOR of an officer receiving an original appointment as a Regular Army commissioned officer, other than as stated in chapter 2, is the date the appointment is accepted unless the officer was, at the time of appointment, a Reserve officer on the active duty list, in which case the ADOR is the same as that which the officer held immediately before his or her appointment as an RA officer. 25. Paragraph 7-2 of Army Regulation 600-8-29 states the SSBs may be convened under 10 USC 628 to consider or reconsider commissioned or warrant officers for promotion when HQDA discovers one or more of the following: a. An officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error. This would include officers who missed a regularly scheduled board while on the temporary disability retired list (TDRL) and who have since been placed on the ADL (10 USC 628(a)(1) (SSB required)). b. The board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary). c. The board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary). 26. DA Pamphlet 600-3 notes that officer strength management, professional development and evaluation of individual contributions occur in a series of centralized DA and Army HRC selection boards for retention, career status, schooling, promotion, field grade command designation, and selective early retirement. These boards employ evaluation reports, competency guidance, and strength requirements to advance individuals to the next stage of professional development. Officers generally flow through the centralized selection subsystem by groupings based on DOR. Company and field grade officer groupings are termed cohort year groups. DISCUSSION AND CONCLUSIONS: 1. The evidence of record shows the applicant was promoted to LTC in the Reserve Component on 17 June 2004. 2. The applicant contends he has endured catastrophic and irreversible detriment to his military career over the last 7 years of service. Also, he contends the initial error occurred when HRC incorrectly adjusted his RA DOR to 17 June 2004, effective 6 November 2006, based upon his being called to active duty on 1 June 2006 to fulfill an Active Army requirement. a. However, HRC corrected this error on 1 May 2013 by adjusting his DOR to LTC from 17 June 2004 to 13 April 2005. b. The HRC advisory opinion states the applicant's call to active duty in 2006 was backdated for each date of Active Federal Service in the respective same grade as established by Army Regulation 600-8-29, paragraph 1-40. c. The HRC advisory opinion also states that based upon the applicant's adjusted DOR to 13 April 2005, his subsequent erroneous consideration in resulting non-selection for the FY08, COL, ACC, PSB was vacated. 3. The applicant's request that his DOR to LTC be adjusted to 15 June 2008 to correspond with HRC's adjusted Cohort Year Group 1993 is acknowledged. a. However, the applicant's service record shows he was appointed as a Reserve commissioned officer on 9 May 1981, thereby his Cohort Year Group is actually FY81. His Cohort Year Group was not adjusted to 1993. b. His DOR to LTC was appropriately adjusted to 13 April 2005. 4. The applicant contends he has continuously been passed over for promotion, command, SSC, and PMS boards despite his multiple exceptional recommendations from his raters and senior raters. a. Since promotion boards are not permitted to disclose the reasons for non-selection for promotion, there is no record of the reason he failed to be selected for promotion to COL. Promotion and retention are keenly competitive and many officers will not be selected. b. The evidence of record confirms he was properly considered for promotion with his peers, and as a result he was clearly provided due process in the promotion selection process. Therefore, there is no basis that his Promotion Board pass-over status to be zeroed out from the four presently shown. 5. He contends the erroneous action by HRC has also caused severe repercussions on his RA career and that he was prematurely slated for the O-6 Promotion Board during his first year on active duty. He only had two Reserve OERs in iPERMS. The first OER was for 2 weeks of annual training and the second OER was for 1-year activation as a Reservist. a. However, the evidence of record does not support his claims. The HRC advisory opinion states based upon the applicant's DOR adjustment, his subsequent erroneous consideration and resulting non-selected for the FY08, COL ACC, PSB was vacated. b. The HRC advisory opinion also states the applicant's remaining considerations and respective non-select statuses for the FY09-FY13, COL ACC, PSBs were substantiated. c. The evidence of record shows he had more than two Reserve OERs filed in iPERMS. 6. The applicant contends he was not competitive with his RA peers on his BZ look for O-6 and he was not competitive with his RA peers on the follow-on SSC, PMS, and Command boards, specifically the 2007-2008 boards. However, there is insufficient evidence of record to suggest that the applicant's non-selection for promotion was the result of discrimination against officers called to active duty. 7. He contends that all RA LTCs are given 3 or 4 years from their DOR to build their records before they are BZ and PZ for any board; however, he was not afforded that opportunity. Absent any specific evidence, the applicant's non-selection was in no way based on his inability to build his records within 3 or 4 years from his DOR as afforded to RA LTCs. It is presumed that the applicant received fair and equitable consideration for promotion. 8. The applicant's non-selection for promotion by the FY08 COL, ACC, PSB was vacated. He was subsequently considered for promotion to COL while in the above the zone of consideration by the FY09 promotion board, but he was not selected. 9. Officers considered for promotion in the primary zone are those commissioned officers on the active duty list of the same grade and competitive category whose dates of rank fall within a promotion eligibility category. There is a perception that those officers in primary zones have a better chance at promotion. 10. Above the zone is a promotion eligibility category that consists of commissioned or warrant officers of the same grade and competitive category on the active duty list who are eligible for promotion consideration and whose date of rank is senior to any officer in the promotion zone. This category consists of those officers who were previously considered for promotion. 11. The HRC advisory states the applicant's consideration by the FY13, COL SERB, based on being a two-time or more non-select for promotion to COL was likewise substantiated with the associated results expected to be released in the January 2014 timeframe. 12. There is no error or injustice that exists in this case regarding the applicant's current DOR to LTC. Therefore, there is no basis for granting his 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) AR20130014503 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130014503 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1