BOARD DATE: 11 August 2016 DOCKET NUMBER: AR20150004272 BOARD VOTE: ___x_____ ___x_____ __x__ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 11 August 2016 DOCKET NUMBER: AR20150004272 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20130011327, dated 5 March 2014. As a result, the Board recommends that the Officer Promotions Branch, U.S. Army Human Resources Command: a. audit the applicant's promotion history and amend his promotion eligibility date (DOR) to the earliest possible date in 1998, in accordance with his selection by either the 1999 RC MAJ APL promotion selection board or the 1999 SSB that adjourned on 8 December 1999; b. ensure his records are considered by SSBs for LTC and COL, as appropriate, consistent with the DOR adjustment directed above; c. adjust his promotion eligibility DOR, as necessary, if selected by SSBs for LTC or COL; and d. paying him any back pay and allowances he may be due as a result of any changes to his records resulting from the process described above. ___________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. BOARD DATE: 11 August 2016 DOCKET NUMBER: AR20150004272 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 the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20130011327 on 5 March 2014. Specifically, he requests correction of his records to show he was promoted to major (MAJ) on 28 June 1998 versus 25 October 2000, and to show he was promoted to lieutenant colonel (LTC) on 27 June 2005 versus 7 December 2006. 2. Per his application, the applicant formally requests a personal appearance before this Board, to help clarify his request and any other matters in order to bring about a successful conclusion to the perceived injustice in his case. 3. The applicant states, after reviewing the Record of Proceedings for the original case, he notes a number of issues with the facts as stated in the Discussion and Conclusions section of the original case. a. With respect to paragraph 1, he was advised by the U.S. Army Reserve (USAR) that the two 1997 promotion memoranda were in error; however, this only occurred after he submitted his concerns on 10 February 1998. At that time, he was already serving on active duty as a MAJ. b. With respect to paragraph 2: (1) He was not considered by the 1998 Reserve Component (RC) MAJ Army Promotion List (APL) promotion selection board because he had already been promoted to MAJ [erroneously, in 1997] and he was serving on active duty at the time the board met. He was not notified of his eligibility for consideration by the 1998 RC MAJ APL promotion selection board. He has never been a non-select for the MAJ APL board; he was already a MAJ at the time the board convened. (2) The non-selection notice he submitted was for the October 1998 RC LTC APL promotion selection board. This was a regularly scheduled APL selection board, not a special selection board (SSB). The discussion of the findings failed to identify an understanding that this regularly scheduled APL board considered him for promotion to LTC. (a) He was non-selected for promotion to LTC because he had not completed 50 percent (%) of the Command and General Staff College (CGSC) Officer's Course (CGSOC) at the time. (b) By the time the LTC APL promotion board met, his promotion to MAJ had been withdrawn and he had reverted to the rank of CPT. Nevertheless, he was considered by that board. If the Board reexamines the non-selection notification he was sent, they will see the notification lists his rank as MAJ, not CPT. Therefore, it is clear he was non-selected for promotion to LTC. (3) He was finally selected for promotion to MAJ under the 1999 criteria; however, he was not notified of his selection until January of 2000, secondary to a delay from Congress that year. This action delayed his career progression over a year, along with his eligibility to attend requisite schooling to be competitive with his peer group. (4) He was not considered by an SSB in 1999. He was considered by a regularly scheduled promotion selection board, held at the same time in March –April 1999. He was selected in 1999 by the regular RC MAJ APL promotion selection board; however, results were not published until January of 2000 because of congressional issues. (5) He was promoted to MAJ in 2000, after he was informed of his selection by the 1999 RC MAJ APL promotion selection board. It took time to find an open slot in the RC in which to be promoted. c. With respect to paragraph 3, in February 1998, he met all of the criteria for promotion to MAJ. His record did not change between June 1998 and March 1999, when he submitted his formal promotion packet for the 1999 RC MAJ APL promotion selection board. He would like a detailed explanation as to how or why it was determined he did not meet the criteria, as stated in the Discussion and Conclusions. According to Army Regulation 135-155 (Army National Guard (ARNG) and USAR, Promotion of Commissioned Officers and Warrant Officers, Other Than General Officers), he was more than eligible for promotion. He had completed the necessary military education and he held two degrees – a Bachelor of Science degree and a doctorate degree. Additionally, he was selected for promotion on 14 January 2000. d. With respect to paragraph 4, he submitted his letter requesting an SSB under the 1998 criteria in 1998. He was never notified that he would be considered by an SSB. He received a notice that he was non-selected for MAJ by an SSB almost three years after he requested the SSB, after he had already been promoted to MAJ. He has never been informed of his non-selection to MAJ by the 1998 RC MAJ APL promotion selection board; he was not considered by that board. e. He was never notified of or provided a timely SSB as requested. The ABCMR findings discussed that he was a non-select for the 1998 RC MAJ APL promotion selection board. He was never considered for promotion to MAJ in 1998; therefore, he was not non-selected to MAJ in 1998. The only board he was considered by was the 1998 RC LTC APL promotion selection board, for which he was non-selected while serving as a CPT as previously detailed. The 1998 RC LTC APL promotion selection board non-selection notification memorandum shows his rank as MAJ and his non-selection was secondary to education deficits for promotion to LTC. He did, however, meet the criteria for the 1998 RC MAJ APL promotion selection board. 4. The applicant provides no further evidence in support of his request. 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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130011327, dated 5 March 2014. 2. The applicant provides a 3-page memorandum to the Board, wherein he notes issues with the facts as stated in the Discussion and Conclusions in the original case. These noted issues constitute new arguments not previously considered by the Board. Therefore, they will now be considered. 3. The applicant was appointed as a Reserve commissioned officer of the Army effective 1 July 1984. He was promoted to first lieutenant effective 30 June 1987 and CPT effective 29 June 1991. 4. By memorandum issued by the U.S. Army Reserve Command (USARC) on 19 May 1997, the applicant was notified of his selection for promotion to MAJ effective 1 June 1997. 5. The 1998 RC MAJ APL promotion selection board convened on 24 March 1998. The applicant was not considered by this board; at the time the board convened, he had already been promoted to MAJ. 6. By memorandum issued by the USARC on 8 June 1998, the applicant was notified that his promotion memorandum to MAJ had been erroneously issued. Upon notification of the error, the memorandum was corrected to show his promotion was to CPT. The applicant notified the USARC on 14 May 1998 that the corrected memorandum was still in error, as he had already been promoted to CPT effective 29 June 1991. After researching the issue, the USARC determined the applicant's promotion to CPT effective 29 June 1991 was valid and no other promotion memorandum should have been issued. As a result, both the promotion memorandum of 19 May 1997 and its correction memorandum were voided. According to the USARC, these errors were wholly the responsibility of the USARC and were in no way the fault of the applicant. 7. By memorandum issued by the USARC on 24 June 1998, the applicant was notified that his promotion to MAJ was revoked. His rank was reinstated as CPT and his promotion eligibility date of rank (DOR) was reestablished as 29 June 1991. 8. The applicant requested an SSB on 28 October 1998, under the criteria for the 1998 RC MAJ APL promotion selection board, since he had not been rightfully considered by that board. 9. By memorandum issued by the U.S. Total Army Personnel Command (TAPC) on 25 March 1999, the applicant was notified of his non-selection for promotion by an unspecified Department of the Army RC promotion selection board that convened on 6 October 1998. The applicant's rank is identified as MAJ on the memorandum, indicating his rank was still MAJ in the Total Army Personnel Database – Reserve (TAPDB-R) system. 10. By memorandum issued by TAPC on 14 January 2000, the applicant was notified of his selection for promotion to MAJ by the 1999 RC MAJ APL promotion selection board that adjourned on 2 April 1999. The applicant's promotion eligibility date (DOR) was determined to be 28 June 1998. 11. By memorandum issued by TAPC on 25 October 2000, the applicant was notified of his selected for promotion to MAJ by an SSB that adjourned on 8 December 1999. a. This promotion memorandum notes the board was convened under the provisions of Title 10, U.S. Code (USC), section 14502 (SSBs: Correction of Errors). b. The applicant's promotion eligibility DOR was determined to be 31 August 1998, which was determined to be the earliest possible date he could have been promoted, given the requirement for Presidential approval of officer promotions under the Reserve Officer Personnel Management Act (ROPMA). 12. By memorandum issued by the National Guard Bureau (NGB) on 11 December 2001, the applicant was notified that he was being promoted to MAJ in the ARNG effective 11 December 2001. 13. The applicant was promoted to LTC effective 7 December 2006. 14. The applicant was assigned to the USAR Control Group (Retired Reserve) effective 30 April 2013. 15. The applicant was placed on the Retired List effective 1 July 2013. 16. In the processing of this case, an advisory opinion was obtained on 13 June 2016 from the Chief, Officer Promotions, Special Actions, U.S. Army Human Resources Command (HRC). This advisory official noted the following: a. Based on a review of our records and the information provided, we find that LTC [Applicant]'s request does have merit. His CPT DOR confirms his records should have appeared before the Calendar Year (CY) 1998 and CY1999 RC, MAJ, APL promotion selection boards. As of today, we cannot affirm that his earlier SSB request was honored from 1998; therefore, this error of omission(s) entitles him approval for consideration for promotion by an SSB. However, his current "former officer" [retired] status and Department of Defense Instruction (DODI) 1320.11 (SSBs) prohibits us from processing such a request unless directed by the ABCMR. b. Pending ABCMR directive, the entire process may take from 12 to 24 months (or more) to complete, due to approval of multiple year SSBs and its approval for release by the appropriate signature authority. If recommended and approved for promotion by an SSB for MAJ, he may subsequently qualify for promotion reconsideration to LTC and consideration for promotion COL. c. Approval of an SSB would not guarantee that he would have been selected for promotion to the next higher grade, nor does it supersede any law or doctrine as it relates to mandatory eliminations, mandatory retirement dates, and/or voluntary retirement dates, separations or transition services in general, nor does it constitute an automatic revocation of discharge/retirement order(s) or reinstatement to the Active Duty List (ADL) or the Reserve Active Status List (RASL) if already separated/removed. This may only occur if warranted by, or directed in, an approved ABCMR proceedings. d. In addition, any adjustment of rank, DOR or associated back pay and allowances will only occur upon a favorable outcome that leads to promotion (unless otherwise proven ineligible). 17. The applicant was provided a copy of the advisory opinion on 24 June 2016, for information and to allow him the opportunity to submit comments and/or a rebuttal; however, he did not respond. REFERENCES: 1. Army Regulation 15-185 (ABCMR), the regulation under which this Board operations, provides that ABCMR members will review all applications that are properly brought before them to determine the existence of an error or injustice, and to direct or recommend changes in military records to correct the error or injustice, if persuaded that a material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record; it is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Army Regulation 135-155 sets the policies used for selecting and promoting commissioned officers. In accordance with: a. Paragraph 2-10(2), promotion eligibility is determined by the Deputy Chief of Staff, G-1, Headquarters, Department of the Army and approved by the Secretary of the Army. For mandatory Reserve of the Army promotions, eligibility is based on time in grade. * promotion to MAJ requires completion of a maximum of 7 years of time in grade (TIG) as a CPT * promotion to LTC requires completion of a maximum of 7 years of TIG as a MAJ * promotion to colonel (COL) requires completion of a maximum of 5 years of TIG as a LTC b. Paragraph 3, zone of consideration lists will be prepared according to criteria established by the Commander, HRC and Chief, Office of Promotions, HRC. The Secretary of the Army or his designee will issue a Memorandum of Instruction (MOI) to selection boards. The MOI will include the zone of consideration as well as guidance to the board on methods of selection, reports to be furnished, and any other administrative details required. c. Paragraph 3-18, an officer’s name will be removed from a promotion list when the officer is not in the zone of consideration. d. Paragraph 3-19a (2), SSBs convened under ROPMA on and after 1 October 1996, will reconsider commissioned officers, (other than commissioned warrant officers) who were wrongly not considered and reconsider commissioned officers (other than commissioned warrant officers) who were considered but not selected by mandatory promotion boards that convened on or after 1 October 1996. e. Paragraph 4-15, the effective date of promotion may not precede the date on which the promotion memorandum is issued. In addition, the officer must already be assigned/attached to a position in the higher grade. An officer’s DOR will be used to establish his or her time in grade requirements to the next grade. f. Paragraph 4–34g, subject to the needs of the Army, officers in the grade of LTC and COL pending separation for reason of years of service may be selectively continued in an active status in their present grade, but not beyond the date on which the officer completes 33 years of commissioned service (for LTC) or 35 years of commissioned service (for COL). DISCUSSION: 1. The applicant requests correction of his records to show he was promoted to MAJ on 28 June 1998 versus 25 October 2000 and to show he was promoted to LTC on 27 June 2005 versus 7 December 2006. 2. The evidence of record shows the applicant was selected for promotion to MAJ by two separate promotion boards that adjourned in 1999. He was first selected by the 1999 RC MAJ APL promotion selection board that adjourned on 2 April 1999; later, he was selected by an SSB that adjourned on 8 December 1999. 3. As a result of these selections, the applicant was given promotion eligibility dates (DOR) of 28 June 1998 and 31 August 1998, respectively. According to his 25 October 2000 TAPC memorandum, issued after his selection by an SSB on 8 December 1999, his promotion eligibility DOR could be no earlier than 31 August 1998, based on the requirement for Presidential approval of officer promotions under ROPMA. 4. Despite the two TAPC promotion memoranda, the applicant was not promoted to MAJ until the NGB published the promotion memorandum on 11 December 2001, nearly 3.5 years after 28 June 1998, the DOR established after his selection by the 1999 RC MAJ APL promotion selection board. 5. The delay in his promotion to MAJ constitutes an injustice that resulted in a material error in his records; specifically, his incorrect promotion eligibility DOR may have delayed his promotion to LTC and, ultimately, his consideration for promotion to COL. 6. In the provided advisory opinion, HRC acknowledges the potential error in the applicant's promotion history/sequence. The available evidence would support a recommendation that the Officer Promotions Branch, HRC: a. audit the applicant's promotion history and amend his promotion eligibility date (DOR) to the earliest possible date in 1998, in accordance with his selection by either the 1999 RC MAJ APL promotion selection board or the 1999 SSB that adjourned on 8 December 1999; b. ensure his records are considered by SSBs for LTC and COL, as appropriate, consistent with any DOR adjustment directed above; and c. adjust his promotion eligibility date (DOR), as necessary, if selected by SSBs for LTC or COL. 7. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150004272 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150004272 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2