BOARD DATE: 23 August 2016 DOCKET NUMBER: AR20150004279 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ __x______ ___x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 23 August 2016 DOCKET NUMBER: AR20150004279 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. BOARD DATE: 23 August 2016 DOCKET NUMBER: AR20150004279 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 the following: a. Correction of his Army Human Resources Command (AHRC) Form 249-E (Chronological Statement of Retirement Points), i.e. his retirement points, to show he earned service credit from 2001 through 2010 in accordance with the class action settlement reached in Wasson vs Harvey (Secretary of the Army), and credit him with the active service he completed during the years 2011, 2012, and 2014. (1) If service credit adjustment gives him 20 qualifying years toward non-regular retirement, he requests transfer to the Retired Reserve with all authorized entitlements. (2) If service credit adjustment does not give him 20 qualifying years toward non-regular retirement, he requests the option to return to service under sanctuary to earn 20 years of service and the next grade. b. Consideration for promotion to lieutenant colonel (LTC) by a special selection board (SSB) under the class action settlement in Wasson vs Harvey. 2. The applicant states: a. Official correspondence from HRC authorizes and supports his request. An officer must serve the minimum time in grade (TIG) before he or she can be considered for promotion to the next grade. b. Correction of a previous error, which brought about his involuntary discharge on 1 October 2002, resulted in his consideration for promotion by an SSB, his promotion to major (MAJ), and his return to an active status in the U.S. Army Reserve (USAR). c. After he was returned to an active status, his original mandatory retirement date (MRD) no longer allowed him the opportunity for earning 20 qualifying years of service. Accordingly, the 81st Regional Support Command (RSC) and HRC extended his MRD by 9 years to overcome the period in which he was involuntarily discharged. d. He served 3 years and 3 months before he was informed by the 81st RSC (30 days after his original MRD) that he would not be able to serve the remaining 5 years and 9 months of his extended MRD. e. His adjusted date of rank (DOR) to MAJ included a period of 9 years in which he did not serve because he was involuntarily discharged. This period was incorrectly incorporated as “served TIG” and he was incorrectly considered for promotion to LTC. His promotion consideration to LTC occurred before he accumulated the minimum TIG for promotion to LTC; as a result, he was non-selected twice for promotion. f. On 5 June 2014, the 81st RSC directed him to file this application after his discharge on 1 October 2014. 3. The applicant provides: * Notice of Proposed Class Action Settlement (Wasson vs Harvey) * AHRC Form 249-E * promotion orders to the rank of captain (CPT) * notifications of non-selection for promotion, dated 26 July 2001 and 16 July 2002 * U.S. Army Reserve (USAR) discharge orders, dated 16 August 2002 * memorandum and promotion orders, dated 23 March 2011 * USAR reassignment orders, dated 1 April 2011 * USAR discharge orders, dated 24 September 2014 * annual and active duty training school orders CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a Reserve commissioned officer on 4 May 1990. He was promoted to CPT on 1 December 1994. 2. On 6 March 2001, a Department of the Army (DA) Reserve Component (RC) Mandatory Selection Board was convened to consider officers of his grade for promotion. By memorandum, dated 26 July 2001, he was informed that he was considered but not selected for promotion. The memorandum informed him that the records reviewed by the DA selection board indicated he had not completed the required civilian and/or military education by the day the board convened. 3. On 4 March 2002, a DA RC Mandatory Selection Board was convened to consider officers of his grade for promotion. By memorandum, dated 16 July 2002, he was informed that he was considered but not selected for promotion. The memorandum informed him that as a result of his second non-selection, his discharge from the USAR was required in accordance with Title 10, U.S. Code, section 14513 (Failure of selection for promotion: transfer, retirement, or discharge) and/or Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers). Subsequently, he was discharged from the USAR on 1 October 2002. 4. His AHRC Form 249-E shows he was credited with a total of: * 15 points for the retirement year ending (RYE) 3 May 2002 * 15 points for RYE 3 May 2001 * 53 points for RYE 3 May 2000 * 39 points for RYE 3 May 1999 * 15 points for RYE 3 May 1998 5. His AHRC Form 249-E includes the following statement: "If there are errors or omissions, please return a copy [to HRC] of the detail points listing (on reverse) with your request for correction. Include copies of pay vouchers, record of attendance and correspondence course completions to substantiate your request for correction." 6. An HRC memorandum addressed to the applicant, dated 16 December 2006, states the DA SSB which convened on 4 November 2001, considered him for promotion using the criteria established for the mandatory board which met in 2001. The DA SSB convened to reconsider for promotion officers who may have been improperly nonselected for promotion. The memorandum states the applicant has been recommended for promotion to the next higher grade (MAJ). Paragraph 4 states that if the applicant desires to accept the promotion to please provide HRC a copy of his retirement/discharge order to be revoked. He would then be accessioned into the Ready Reserve (IIR) or his troop program unit. "If you do not wish to accept this promotion please submit a signed and dated statement specifically declining the promotion, your name will be removed from the selection list. You may email your response to the above address." 7. An entry in the Soldier Management System, dated 25 February 2011, states the applicant requested information regarding returning to the Reserves after receiving two letters in 2006. The first letter discharged him from the military because he was passed over in 2006 for promotion two times and the second letter stated that the promotion board (presumed to mean DA RC Mandatory Promotion Boards in 2001 and 2002) made a mistake and he was promoted. The applicant wanted to know if he could be placed back in a troop program unit and receive that promotion. 8. By letter, dated 23 March 2011, HRC informed him that an SSB had adjourned on 4 November 2005 and selected him for promotion to MAJ under the 2001 criteria. His promotion orders show his effective date and DOR were adjusted to 30 November 2001. 9. On 1 April 2011, he was reassigned from the USAR Control Group (Reinforcement) to 3100 Detachment 6, Strategic Intelligence Group, Millington, Tennessee, effective 25 March 2011. 10. On 7 June 2011, he executed an oath of office as a Reserve commissioned officer in the rank of MAJ. 11. He was considered but not selected by a DA RC Mandatory Selection Board that was convened on 7 September 2011. He was informed that he was not selected because his records indicated he had not completed the required civilian and/or military education by the date the board convened. 12. He was considered but not selected for promotion by a DA RC Promotion Selection Board (PSB) that was convened on 27 September 2012; however, he was selected by the PSB for continuation in his present grade. 13. Orders issued by HRC on 12 December 2013 ordered the applicant to active duty for training for the purpose of attending the Command and General Staff Officers Course – Intermediate Level Education (CGSOC-ILE), Common Core Course, Phase I. 14. On 24 September 2014, Headquarters, U.S. Army Reserve Command, Fort Bragg, North Carolina issued orders directing the applicant's discharge from the USAR effective 1 October 2014. The special instructions section of these orders contains the following statement: "Officer twice non-selected for promotion to next higher grade, lieutenant colonel, and completed authorized service under the selective continuation." 15. During the processing of this case, an advisory opinion was obtained from the Office of Officer Promotions, Special Actions Branch, HRC. It states: a. Based on a review of their records and the information provided, HRC found that the applicant's request for an SSB under the class action settlement criteria of Wasson vs Harvey does not have merit. b. In lieu of the above, it was unfortunate that it took the Office of Promotions nearly 6 years to inform him (then CPT) of the positive results of his SSB that adjourned on 4 November 2005. Had this occurred in a more timely manner, there may have been more than a reasonable chance that he could have completed, at minimum, the 50% of the CGSOC-ILE required to request a military education waiver(s) prior to the convene date of any subsequent promotion selection boards, thus improving his chance for promotion selection to LTC. c. It appears he never got that opportunity; therefore, in fairness, HRC found that consideration should be warranted from fiscal year (FY) 2007 to FY2011, unless proven otherwise ineligible. d. There is no guarantee that an approved military education waiver and coding his board files "Educationally Qualified" would have led to a selection for promotion to LTC; however, there is definitive proof that candidates deemed not educationally qualified are automatically non-selected for RC promotions. e. The applicant's current "former officer" status prohibits them from processing his request unless directed by the Army Board for Correction of Military Records (ABCMR); therefore, pending ABCMR directive (with retroactive military education approval for SSB(s)), the entire process may take 12 months or more to complete before the results are approved for release by the appropriate signature authority. Any adjustment of rank, subsequent SSBs, or associated back-pay and allowances may only occur upon a favorable outcome that leads to a promotion selection to LTC. Furthermore, it is at the discretion of the Secretary of the Army via the ABCMR to determine if any discharge/ retirement order should be revoked or that he be returned to an active reserve status. 16. The advisory opinion was provided to the applicant to afford him the opportunity to reply. He responded and stated: a. "No comment" [to SSB under class action settlement criteria of Wasson vs Harvey]. b. He agreed it is unfortunate that it took HRC's Office of Promotions nearly six years to inform him of the positive results of his SSB. He further agreed that he would have had more than a reasonable amount of time to complete eligibility requirements for promotion, had notification occurred in a timely manner. He notes that he formally requested training allocation for ILE-Common Core (CC) Phase I through proper channels every FY he was an active Reservist (2011-2014). Each time he was told that active duty Soldiers had priority (limited Reservist allocation) and/or there were no funds available. c. In an effort to complete ILE-CC, he enrolled and started Phase I through the Distance Learning Program while still attempting to gain an onsite allocation for Phase I. He completed roughly 1/3 of Phase I before finally receiving allocation/orders in December 2013 to attend ILE-CC Phase I at Fort McCoy, Wisconsin in January 2014. He completed Phase I and immediately requested allocation for the next available Phase II course. He received allocation/ reservation to attend Phase II ILE-CC in October 2014, in Millington, Tennessee (Naval Base and Army Reserve Center). Unfortunately, he received honorable discharge orders in September 2014; therefore, he was not able to complete the next phase of scheduled training. d. He appreciates the consideration given in the advisory opinion memorandum and asks that their indication of warranted fairness be interpreted and applied to each of his individual requests. 17. The applicant provides annual and active duty training school orders with dates ranging from 1 June 2011 through 9 June 2014, in support of his contention that this service has been omitted from his ARPC Form 249-E. However, it does not appear he previously addressed this lack of service credit with HRC. Additionally, the evidence of record does not show, and he did not provide pay records that show, he did, in fact, complete this cited service. 18. A DA Form 5016 (Chronological Statement of Retirement Points), dated 18 July 2016, generated by a member of the ABCMR staff, shows he was credited with 14, 14, 36, and 14 active duty points during the RYEs of 3 May 2012, 3 May 2013, 3 May 2014, and 1 October 2014. REFERENCES: 1. The Wasson vs Harvey Settlement Class is a group consisting of those individuals who were erroneously considered educationally unqualified for promotion at the 2002 and 2003 Reserve Component Promotion Selection Boards pursuant to Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 2-9(b) regarding civilian education, but who were originally promoted or appointed to the rank of CPT before 1 October 1995. Within 120 days of the final approval of the Settlement Agreement, the Department of the Army would submit the promotion file of each member of the Settlement Class to an SSB. Each member of the Settlement Class would be considered in accordance with, among other things, Title 10, U.S. Code § 14502 (Special selection boards: correction of records) and Army Regulation 135-175 (Army National Guard and Army Reserve Separation of Officers). All Settlement Class Members would be deemed educationally qualified for promotion regarding civilian education. The settlement further provided the following: a. If the Settlement Class Member was considered for promotion to the rank of MAJ in 2002, and he or she was non-selected solely for failure to meet the civilian education requirement, he or she would be granted an SSB under the 2002 criteria. b. If the Settlement Class Member was considered for promotion to the rank of MAJ in 2003, and he or she was non-selected solely for failure to meet the civilian education requirement, he or she would be granted an SSB under the 2003 criteria. c. No Settlement Class Member would receive consideration by an SSB pursuant to this settlement for any year in which they were non-selected for promotion for any reason other than the failure to meet the civilian education requirement, as demonstrated by their records. d. If a Settlement Class Member was selected for promotion via the SSB process pursuant to the settlement agreement, they would be notified of their selection within approximately 90 days after approval of the recommendation of the SSB. At that point, Settlement Class Members would have the opportunity to elect to return to military service if they were no longer in service and were otherwise qualified for military service pursuant to the laws of the United States and all applicable Army regulations. e. No Settlement Class Member was required to return to military service in order to seek records correction and service credit if selected for promotion at the SSB. f. If a Settlement Class Member who was involuntarily separated as a result of their non-selection for promotion performed military duties sufficient to acquire the minimum number of retirement points to receive a "creditable year" toward retirement in 3 of the preceding 4 years prior to their involuntary separation from the Army, they would receive 50 retirement points for each year after their involuntary separation from service until their reinstatement in service. If any portion of that time amounts to less than an entire year, said person would receive a pro rata share of points equal to the percentage of the year in which they did not serve due to their involuntary separation by reason of their two-time non-selection for promotion. g. If a Settlement Class Member voluntarily separated from the Army after non-selection for promotion or did not perform military duties sufficient to acquire the minimum number of retirement points to receive a "creditable year" towards retirement in 3 of the preceding 4 years prior to their involuntary separation from the Army, they would not receive any retirement points pursuant to the settlement. h. If a Settlement Class Member had continuously served since their non-selection for promotion, or they returned to service within 1 year of their involuntary separation from service and earned retirement points in that year sufficient for a creditable year towards retirement, they would not receive any retirement points pursuant to the settlement. i. If a Settlement Class Member was selected for promotion, their records would be corrected to reflect the same date of rank, the same effective date for pay and allowance of that grade, and the same position on the Reserve active-status list as they would have had if they had been recommended for promotion to that grade by the selection board that should have considered them in accordance with Title 10, U.S. Code §14502(e) (2). j. Settlement Class Members selected for promotion via the SSB process pursuant to the settlement agreement have no entitlement, as a result of this settlement, to back pay for military service they did not actually perform. Settlement Class Members may submit an application to the Army Board for Correction of Military Records (ABCMR) pursuant to the Board's broad equitable powers seeking back pay or to correct any error or remove an injustice resulting from not being selected for promotion by the board which originally considered the individual. The Settlement Agreement did not make any promises, expressed, implied, or otherwise, that relief by the ABCMR would be granted. k. Settlement Class members who performed paid military service after their non-selection for promotion, and were retroactively promoted via the SSB process, would be entitled to pay at the higher grade of service during the retroactive period, provided that such entitlement is not otherwise precluded by law. Such entitlement would be calculated by the Defense Finance and Accounting Service and was not part of the settlement. l. The Wasson vs Harvey Settlement includes an appendix, titled "2002/2003 Reserve Component Major Promotion Selection Board Non-Selects – Lack of Civilian Education," which includes the applicant's name. 2. Section 12205 of Title 10, U.S. Code, states that no person may be appointed to a grade above the grade of first lieutenant in the Army Reserve, Air Force Reserve, or Marine Corps Reserve or to a grade above the grade of lieutenant (junior grade) in the Navy Reserve, or be federally recognized in a grade above the grade of first lieutenant as a member of the Army National Guard or Air National Guard, unless that person has been awarded a baccalaureate degree by a qualifying educational institution, except, among other reasons, the appointment to or recognition in a higher grade of any person who was appointed to, or federally recognized in, the grade of captain or, in the case of the Navy, lieutenant before 1 October 1995. 3. Section 14502(b) of Title 10, U.S. Code, states that in the case of an officer who was eligible for promotion and was considered for selection for promotion from in or above the promotion zone by a selection board but was not selected, the Secretary of the military department concerned may, under regulations prescribed by the Secretary of Defense, convene an SSB to determine whether the officer should be recommended for promotion, if the Secretary determines that (a) the action of the selection board that considered the officer was contrary to law or involved material error of fact or material administrative error; or (b) the selection board did not have before it for its consideration material information. 4. For members of the U.S. Army Reserve Components, a "qualifying" or "creditable year" towards retirement is determined to be a year in which a minimum of 50 retirement points have been credited. 5. Army Regulation 135-155 states the time in grade for mandatory promotion board consideration for promotion to LTC is 7 years. 6. Army Regulation 15-185 (ABCMR), paragraph 2-5 (Administrative remedies) states the ABCMR will not consider an application until the applicant has exhausted all administrative remedies to correct the alleged error or injustice. DISCUSSION: 1. The applicant requests correction of his retirement points to reflect service credit from 2001 through 2010 in accordance with the class action settlement agreement reached in Wasson vs Harvey. a. The settlement stipulates that "If a Settlement Class Member who was involuntarily separated as a result of non-selection for promotion performed military duties sufficient to acquire the minimum number of retirement points to receive a ‘creditable year’ toward retirement in 3 of the preceding 4 years prior to their involuntary separation from the Army, they would receive 50 retirement points for each year after their involuntary separation from service until their reinstatement in service." b. The applicant was discharged in October 2002 and his AHRC Form 249-E shows he earned a total of: * 15 points for RYE 3 May 2002 * 15 points for RYE 3 May 2001 * 53 points for RYE 3 May 2000 * 39 points for RYE 3 May 1999 * 15 points for RYE 3 May 1998 c. Based on the fact that he did not earn a "creditable year" toward retirement in 3 of the preceding 4 years (only 1 of 5 preceding years) prior to his involuntary separation, he does not meet the criteria for relief under this provision of the Wasson vs Harvey Settlement. 2. The Wasson vs Harvey Settlement includes an appendix, titled "2002/2003 Reserve Component Major Promotion Selection Board Non-Selects – Lack of Civilian Education," which includes the applicant's name. This suggests the applicant was improperly non-selected for promotion to MAJ due to not meeting the civilian education requirement prior to being considered by the promotion board. However, Title 10, U.S. Code, section 12205 provided an exception to this educational requirement for anyone promoted to CPT prior to 1 October 1995. The applicant's date of rank for CPT was 1 December 1994; therefore, the exception applied to him. 3. The applicant was subsequently selected for promotion to MAJ by an SSB in November 2005, under the 2001 criteria. Notwithstanding the generally favorable advisory opinion which indicated that it was unfortunate that it took the Office of Promotions nearly 6 years to inform him (then CPT) of the positive results of his SSB that adjourned on 4 November 2005, the evidence clearly shows he was notified in 2006 that he was selected for promotion to MAJ and that he was offered the opportunity to return to an active status at that time. However, evidence also indicates he did not ask to return to an active status until February 2011. As such, there does not appear to be an error or injustice that would warrant granting him any service credit during the period 1 October 2002 to 25 March 2011. 4. Orders returned him to an active status effective 25 March 2011 in the rank of MAJ with an effective date and DOR of 30 November 2001. He was discharged on 1 October 2014. His retirement points statement shows he had 11 years, 4 months, and 28 days of creditable service for non-regular retirement. As such, his request for return to an active status in a sanctuary status would not pertain to him in this case. 5. The applicant is requesting consideration for promotion to LTC by an SSB under the criteria established by the class action settlement in Wasson vs Harvey; however, the settlement pertains to CPTs erroneously non-selected for promotion in 2002 and 2003. He was already selected for promotion to MAJ under the criteria established by the settlement. There appears to be no basis for the applicant's consideration by an SSB for promotion to LTC. 6. The applicant also requests correction to his retirement points to credit him with active service he completed during the years 2011, 2012, and 2014, which he contends has been omitted from his retirement points credit. In support of this request, he provides annual and active duty training school orders with dates ranging from 1 June 2011 through 9 June 2014. However, it appears he may have already been credited for this service. If he still has additional concerns or questions regarding his retirement points credit he should contact HRC. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150004279 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150004279 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2