IN THE CASE OF: BOARD DATE: 28 January 2016 DOCKET NUMBER: AR20150006690 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: The applicant defers her request, statement and evidence to her counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests the correction of the applicant's records to show she had 20 years of qualifying service and is entitled to non-regular retired pay at age 60. 2. Counsel states: a. The applicant was separated with 17 years, 10 months, and 19 days of continuous creditable service and had 323 retirement points for her last retirement year at the time of her erroneous separation. She would have only needed 50 points to have a creditable/qualifying year. National Guard Regulation (NGR) 680-2 (Automated Retirement Points Accounting Management), paragraph 2-4, states Soldiers must earn a minimum of 50 retirement points in each full anniversary year to have that year creditable towards verification of the total years of qualifying service for nonregular retired pay. b. The Board should rule in her favor and authorize the Alaska Army National Guard (AKARNG) to transfer 100 points from her last year of service to other years so she can attain 20 years of qualifying service. She should be issued a notification of eligibility for retired pay upon application at age 60 (20-year letter) and transfer to the Retired Reserve. In addition, corrections should be made to her previous separation documents to reflect these changes. The applicant was the victim of a "situation between convolved regulations." It appears there was a lack of attention to detail regarding the separation processing and she was subsequently wrongfully discharged. c. Per Army Regulation (AR) 135-155 (ARNG and U.S. Army Reserve (USAR) - Promotion of Commissioned Officers and Warrant Officers other than General Officers), paragraph 4-33, the applicant, as a second time pass over to captain (CPT) with 18 years or more but less than 20 years of qualifying service for retired pay (Title 10, U.S. Code (10 USC) Sections 12646, 12647, or 12686) and as an ARNG officer, should have been processed according to NGR 635-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions). d. Per NGR 635-100, paragraph 6a, because the applicant's appointment was to be terminated under paragraph 5a(10) for failure for selection to promotion for a second time, and because she was entitled to be credited with 18 or more years but less than 19 years of qualifying service under 10 USC sections 1331-1337, she should have been retained to the end of the retirement year during which she would be credited with 20 years of satisfactory Federal service (11 November 2013), or until the third anniversary of the date on which she would have been discharged (30 September 2014), whichever is earlier. e. The applicant firmly believes she was wrongfully deprived of due process regarding her separation and deprived of her well-earned entitlement to military retired benefits. 3. Counsel provides: * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Honorable Discharge Certificate * ARNG Retirement Points History Statement * two orders, dated 1 and 7 September 2011 * DA Form 67-9 (Officer Evaluation Report), dated 18 May 2011 * a memorandum, dated 2 March 2011 * a page titled Point Paper - Sanctuary * two pages from AR 135-155 * a page from NGR 680-2 * a page from NGR 635-100 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. Having had prior service as an enlisted member in the U.S. Air Force and the ARNG, the applicant was appointed as a second lieutenant in the Oregon ARNG and executed the oath of office on 3 April 2004. 3. She was reassigned to the AKARNG on 19 October 2005 and she entered active duty on that date as a member of the AKARNG in an Active Guard/Reserve (AGR) status. On 3 April 2006 she was promoted to the rank of first lieutenant (1LT). 4. She was considered by the Fiscal Year 2010 (FY10) CPT Army Promotion List (APL) board on 3 November 2009. She was non-selected for promotion due to not being educationally qualified. On 12 December 2009 she received a bachelor's degree, a mandatory educational requirement for promotion to CPT. 5. She was considered a second time for promotion by the FY11 CPT APL board that convened on 2 November 2010 and she was non-selected for promotion to CPT. 6. She was honorably released from active duty and the ARNG on 30 September 2011 by reason of non-selection for promotion to CPT. The NGB Form 22 she was issued shows she was credited with 17 years, 10 months, and 19 days of total service for retired pay and the separation authority as NGR 635-100, paragraph 5(a)(10). 7. In the processing of this case, an advisory opinion was obtained on 14 August 2015 from the NGB Deputy Chief, Personnel Policy Division. The advisory official recommended denial of the applicant's request and stated, in part: a. The applicant was twice non-selected for promotion to CPT by the FY11 CPT APL board on 27 January 2011. In accordance with AR 135-155, paragraph 4–33, a 1LT on the Reserve Active Status List (RASL) who was not selected for promotion to CPT for the second time, will be removed from active status not later than the first day of the seventh month after the month in which the final approval authority approves the report of the board which considered the officer for the second time unless the officer can be credited with 18 or more but less than 20 years of qualifying service for retired pay (emphasis added). ARNG officers will be processed according to NGR 635-100. The AKARNG notified the applicant on 2 March 2011 of her mandatory separation as a commissioned officer from the AKARNG effective 1 October 2011. b. The applicant was credited with 17 years, 10 months, and 19 days of qualifying service and was awarded 10 months and 19 days of qualifying service in her last retirement year. For a Soldier to receive credit for a full anniversary year, they must serve 365 or 366 days (to include 29 February). The applicant did not meet the requirements outlined in AR 135-155, paragraph 4-33(b) for processing under NGR 635-100, [paragraph 6a]. c. The advisory opinion was coordinated with the NGB Retirement Services Branch and the AKARNG concurred with the recommendation. 8. In a response to the advisory opinion received on 21 September 2015, the applicant's counsel stated, in part: a. At the time of the applicant’s discharge, her rater was Colonel (COL) ED and her senior rater was now Brigadier General (BG) CJ. A 20 October 2014 newspaper article stated, based on an investigation, BG CJ was removed as chief of staff and land component commander (CDR) of the AKARNG. COL EG was replaced as director of human resources. Of course the AKARNG concurred with the advisory opinion as there are still some senior officials in the AKARNG that bear direct responsibility for the applicant’s wrongful separation. b. The advisory opinion stated the applicant did not complete a full 365 (366) day year prior to her separation. That is true. She lacked approximately 6 weeks from completing her 18th year due to her early separation. However, she was not properly counseled or advised of the options that would have allowed her to attain the 18 year sanctuary. She could have and should have been given the option of transferring to the Individual Ready Reserve (IRR) or USAR Control Group. c. AR 600-8-24 (Officer Transfers and Discharges), Table 2-17 (Involuntary release from active duty due to failure of selection for permanent Reserve promotion) states, in part, the CDR personally notifies the officer of their non-selection and counsels the officer regarding their options. The CDR ensures the election is forwarded to the U.S. Army Human Resources Command (HRC) by the established suspense date. Upon receipt of the established separation date and the officer’s election of options, HRC processes the officer for release from active duty and discharge or transfer to the Retired Reserve, as applicable. She did not receive this counseling. 9. AR 135-155 prescribes the policies and procedures for selecting and promoting commissioned officers of both the ARNG and USAR. a. Effective 1 October 1995, no person may be selected for promotion to the Reserve grade of CPT unless, not later than the day before the selection board convening date, that person has been awarded a baccalaureate degree from an accredited institution recognized by the Secretary of Education. b. Mandatory selection boards will convene each year. These boards will consider ARNG/USAR officers on the RASL for promotion to CPT through lieutenant colonel. Those officers who were not selected for promotion on the first consideration, and who remain in an active status, will be reconsidered by the next board considering their grade and/or branch. c. A 1LT on the RASL who is not selected for promotion to CPT for the second time and whose name is not on a list of officers recommended for promotion to CPT, will be removed from active status not later than the first day of the seventh month after the month in which the final approval authority approves the report of the board which considered the officer for the second time unless the officer can be credited with 18 or more but less than 20 years of qualifying service for retired pay. 10. 10 USC, Section 14504, states officers twice non-selected for promotion to CPT will be removed from the RASL on the first day of the seventh month after the President approves the board unless otherwise selectively continued (SELCON), unless the officer is retained under another provision of law. Retention is authorized for Soldiers selected for SELCON or those who have at least 18 but less than 20 qualifying years for retired pay at age 60 (Reserve Sanctuary). SELCON for a 1LT is only authorized for officers who have not completed their baccalaureate degree and only until the end of their statutory obligation. 11. NGR 635-100, paragraph 5(a)(10) states upon failure of a 1LT, CPT, or major to be selected for promotion to the next higher grade after second consideration under AR 135-155, they will be removed from an active status. DISCUSSION AND CONCLUSIONS: 1. The evidence of record confirms the applicant was a two-time non-selectee for promotion to CPT by both the FY10 and FY11 CPT APL boards. Apparently her first nonselection to CPT was because she did not meet the civilian education requirements. She completed her baccalaureate degree prior to the second CPT promotion board convening date. As she now possessed a baccalaureate degree as a 1LT, she was not eligible for SELCON. As she had not completed 18 qualifying years for retired pay on the date of her separation she was ineligible for Reserve sanctuary. 2. Since there was no other provision of law to authorize her retention, she had no option to elect transfer to the IRR or USAR Control Group (Retired Reserve). She was properly released from active duty and separated from the ARNG on 30 September 2011. There is no error or injustice in the processing of her separation from ARNG. Regarding her request to move retirement points to other years so as to attain 18 years of qualifying service for Reserve sanctuary, this would be extraordinary relief that would give the applicant a benefit she simply did not earn. 3. Regarding counsel’s argument that the applicant was not properly counseled by her chain of command upon notification of her nonselection for promotion, both counsel and the applicant have failed to produce evidence to support their contention. 4. Concerning the applicant’s desire to obtain sufficient years to qualify for non-regular retired pay, she can seek the counsel of an Army Reserve or ARNG recruiter to determine her eligibly to reenter enlisted service. 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) AR20150006690 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006690 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1