BOARD DATE: 20 October 2016 DOCKET NUMBER: AR20160002886 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: 20 October 2016 DOCKET NUMBER: AR20160002886 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. Submitting his records to the next available special selection board for consideration for promotion to lieutenant colonel under the applicable Reserve Component criteria for fiscal year 2011. b. If he is selected for promotion by the special selection board, his records should be corrected by establishing his lieutenant colonel promotion effective date and date of rank as if he had been originally selected under the earlier criteria identified by the special selection board, to include providing him all back pay and allowances. c. If he is not selected for promotion by the special selection board, he should be so notified. ___________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: 20 October 2016 DOCKET NUMBER: AR20160002886 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 records to show he was promotion eligible to lieutenant colonel (LTC)/O-5 as of 16 March 2010, after his transfer into the Individual Ready Reserve (IRR). 2. The applicant defers to counsel for all arguments and evidence. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests correction of the applicant’s records to show he was promotion eligible to LTC/O-5 as of 16 March 2010 after his transfer to the IRR. 2. Counsel states: a. The applicant was left in the Inactive National Guard (ING) for 5 years, unjustly causing him to remain ineligible for the entire 5 years for a promotion he was entitled to pursue and for which he had been notified to submit his name and records. b. The Florida Army National Guard (FLARNG) admitted that the transfer was never effected even though they repeatedly told the applicant he was in the IRR and gave him National Guard orders stating such, while the IRR repeatedly told him that he was in the FLARNG. c. The applicant is presently recovering from traumatic brain injury (TBI) and post-traumatic stress disorder (PTSD) as a result of battle injuries sustained in six improvised explosive device (IED) explosions that occurred when he was deployed in both Iraq and Afghanistan. d. This error has kept him excluded him, through no fault of his own, from promotion to LTC for the last 5 and 1/2 years. e. The applicant has spent 20 plus years in the Army Special Forces with 16 years of active duty. He has been awarded the Combat Infantryman Badge and Bronze Star Medal. He served as a company commander in the Special Forces in 2003, 2006, and 2007 for Operation Enduring Freedom (OEF) and Operation Iraqi Freedom (OIF); with deployments to Kosovo, Iraq, and Afghanistan. f. He has both Bachelor’s and Master's Degrees in Criminology, which he used as the Director of the FLARNG Counter-Drug Training Academy for 5 years and, prior to being appointed Director, in field operations stateside and in Ecuador, Bolivia, and Peru. Although in the FLARNG, he spent his last 7 years consecutively on active duty and had three combat deployments. He most recently deployed as a counter-insurgency advisor for the Department of Defense (DoD) in Iraq and Afghanistan reporting to General A___. g. Though greatly improved, he is still being treated for his numerous injuries and has undergone in excess of eight surgeries to his neck, back, and other areas, caused by the effects of his years of rigorous physical training and his combat exposure. He has been determined to be 100 percent disabled by the Department of Veterans Affairs (VA) as of January 2013. h. The purpose for this application is to correct the mistakes which resulted in failing to properly and timely transfer the applicant from the FLARNG to the IRR per his March 2010 written order so that he could maintain eligibility for a promotion that he was entitled to pursue. These mistakes have left him excluded from promotion for the past 5 and 1/2 years, while other officers junior to him, some of whom he trained and are far less experienced, have been advanced to the rank of LTC/O-5 in his stead. i. The problem arose when in March 2010, the applicant’s battalion commander requested the FLARNG, via written order, transfer him from the ING where he had been place involuntarily for one year, to the IRR. This was necessary for him to maintain his status as an active reservist and maintain his eligibility for promotion. The FLARNG then failed to administratively follow up to see that the transfer went through; with the results being that for the last 5 and 1/2 years the FLARNG has insisted that the applicant was transferred the IRR, and for the same period the IRR remained unaware that he had been transferred to that organization. This was the message that was repeatedly given to the applicant, with no resolution until 2 months ago. Throughout this period the applicant remained excluded from the promotion roster for LTC/O-5, which he had qualified for since 2008 and was highly recommended for by his commanding and battalion officers. j. Until 6 October 2015, the FLARNG insisted he had been transferred to the IRR as of 2010 (even though they continued to acknowledge to him that his computer record still showed he was in the Guard). k. As mentioned above, fortunately this issue was finally resolved on 6 October 2015 after personally meeting with the FLARNG headquarters and the IRR. Even though the applicant has personally met with Guard representatives on prior occasions to try and correct the problem, it was not until this 6 October 2015 meeting that the Guard finally admitted his transfer order had never been transmitted to the IRR, and they took action to finally correct his status to show membership in the IRR, retroactive to 30 March 2010. This action, however, did not correct the fact that he had lost all promotion possibilities during the 5 and 1/2 years he erroneously remained suspended between the ING and the IRR. l. In May 2008 and after serving as a major (MAJ)/O4 for 5 years, he was notified to submit for promotion to LTC/O-5. His Officer Evaluation Reports (OERs) were exceptional, recommending that he be promoted to LTC/O-5 as soon as possible. By 2008, he had met all the requirements for promotion and was also enrolled in the Command and General Staff College (CGSC). The CGSC was a demanding course of study requiring the writing of 14 papers and 46 sub-courses. He was completing this while in the full time position where he stayed on active duty for 7 years consecutively and had three different combat deployments. He successfully completed the college while in Iraq (he had only to be enrolled in (not complete) the CGSC for promotion to LTC/O-5). 3. Counsel provides: * Memorandum, subject: Promotion as a Reserve Commissioned Officer of the Army, issued by the National Guard Bureau (NGB), dated 11 March 2003 * CGSC Graduate Certificates * DA Form 67-9 (Officer Evaluation Report), for the period of 24 September 2005 thru 23 September 2006 * Permanent Orders 113-001, issued by Special Operations Command Central, dated 23 April 2007 * DA Form 67-9, for the period of 24 September 2006 thru 22 May 2007 * Memorandum, subject: Department of the Army Mandatory Promotion Selection Board, issued by the FLNG, dated 9 May 2008 * Army Physical Fitness Test Scorecard, dated 1 October 2008 * Memorandum, subject: Outprocessing Letter, issued by the State of Florida, Department of Military Affairs, dated 23 November 2008 * Memorandum, subject: Request for Transfer to the Inactive Army National Guard, issued by the FLARNG, Headquarters, 3rd Battalion, 20th Special Forces Group (Airborne), dated 1 January 2009 * DA Form 67-9, for the period of 23 May 2008 thru 1 March 2009 * DA Form 1059 (Service School Academic Evaluation Report) for the period of 19 March 2009 thru 25 March 2009 * Memorandum, subject: Designation of Primary/Secondary Area of Concentration and/or Skill Identifier, issued by FLARNG, Office of the Adjutant General, dated 11 February 2010 * Memorandum, subject: Request to be Removed from ING and Transferred to the IRR, issued by the FLARNG, Headquarters, 3rd Battalion, 20th Special Forces Group (Airborne), dated 16 March 2010 * Memorandum, subject: Request for Transfer to the IRR for [Applicant], issued by the FLARNG, Headquarters, 3rd Battalion, 20th Special Forces Group (Airborne), dated 16 March 2010 * SO Number 54 AR, issued by NGB, dated 24 March 2010 * Orders 089-009, issued by FLARNG, Office of the Adjutant General, dated 30 March 2010 * Special Orders (SO) Number 61 AR, issued by NGB, dated 1 April 2010 * Photograph of self * CGSC Reserve Forces School Program Rosters * Joint Personnel Adjudication System (JPAS) * DD Forms 214 (Certificate of Release or Discharge from Active Duty) * NGB Form 22 (NGB Report of Separation and Record of Service) * Troy State University transcripts * Email from the FLARNG, dated 6 October 2015 * Applicant’s resume 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. A DA Form 71 (Oath of Office – Military Personnel) shows the applicant was appointed in the U.S. Army Reserve (USAR) as a second lieutenant (2LT)/O-1, and signed his oath of office on 25 November 1987. 3. Orders 144-033, issued by the State of Florida, Department of Military Affairs, dated 23 July 1990, show he was promoted to the rank of first lieutenant (1LT)/O-2 effective 14 August 1990. 4. Orders 111-007, issued by the FLARNG, dated 8 June 1994, show he was promoted to the rank of captain (CPT)/O-3, effective 8 June 1994. 5. Orders P058-007, issued by the FLARNG, dated 27 February 2003, show he was promoted to the rank of MAJ/O-4, effective 11 March 2003. 6. The applicant provides a certificate to show he completed CGSC on 2 July 2004. 7. An email from the NGB, dated 16 May 2016, states the applicant was considered but not recommended for promotion to LTC/O-5 in fiscal year (FY) 2008. 8. In a memorandum, issued by the FLARNG, dated 1 January 2009, the applicant requested to transfer to the ING. 9. In a memorandum, issued by the FLARNG, dated 16 March 2010, the applicant requested permission to leave the ING and enter the IRR due to a recent employment conflict and stated he would like to continue in an inactive status. This was necessary for the applicant to maintain his status as an active Reservist and maintain his eligibility for promotion. 10. On 16 March 2010, the FLARNG recommended approval for his request for transfer to the IRR, and stated “Officer has been in the ING for over two years. Currently policy requires officers be removed from the ING after an extended period.” 11. Special Orders Number 54 AR, issued by the NGB, dated 24 March 2010, shows the applicant was transferred to the ING on 15 March 2010. 12. He provided a DA Form 1059 for the period 19 March 2009 through 25 March 2009 to show he completed CGSC Intermediate Level Education on 25 March 2009. 13. Orders 089-009, issued by the FLARNG, Office of the Adjutant General, dated 30 March 2010, show the applicant was separated by the FLARNG effective 16 March 2010. 14. Special Orders Number 61 AR, issued by NGB, dated 1 April 2010, show the applicant was transferred to the IRR on 16 March 2010. 15. An advisory opinion was obtained from the Deputy Chief, Personnel Policy Division, NGB, on 23 May 2016, who recommended a partial approval, stating: a. On 1 January 2009, the applicant requested transfer to the ING and subsequently transferred to the IRR on 16 March 2010. Unfortunately, the administrative action was not properly executed until 6 October 2015, with an effective date of transfer on 16 March 2010. Additionally, the applicant was also placed into the Retired Reserve due to reaching age 60. b. The FY 2008 Army Promotion List (APL), U.S. Army Reserve (USAR), considered but did not recommend the applicant for promotion. c. Recommend a Special Selection Board (SSB) under FY 2009 APL, USAR criteria to determine if he is recommended for promotion. If selected, promote applicant to LTC/O-5. Additionally, upon favorable consideration of the board, corrective action will be required from the USAR. d. This advisory opinion was coordinated with the NGB Federal Recognitions Branch (FRB). e. The FLARNG did not provide comment on this recommendation. 16. On 10 June 2016 and 22 July 2016, counsel for the applicant responded, stating: a. He provides a letter he sent to the Adjutant General of the FLARNG, requesting the submittal of a comment on the applicant’s qualification for promotion. b. Based on the information counsel has received from the Adjutant General of the FLARNG, he believes that the applicant was both selected and recommended for promotion on either the FY 2008 or FY 2009 promotion lists, then his name was removed when he was transferred into the ING on 1 January 2009 in order for him to accept a civilian employment as a counter insurgency advisor to the DoD in Iraq, which changed his status to inactive and made him ineligible for promotion. c. Furthermore, the advisory opinion confirms what counsel and his applicant already believed; his name was removed from consideration for promotion by the FLARNG after he had been selected by FY 2009 promotion list because of his transfer into the ING in order to accept a civilian assignment to the DoD as a counter-insurgency advisor in Iraq. d. He could not be promoted while he was in an inactive status. e. The advisory opinion also confirms the FLARNG did attempt to transfer the applicant into the IRR when it cut him transfer orders in March 2010, which orders then went astray (corrected on 5 October 2015, retroactive back to March 2010). f. The advisory opinion concludes, as they do, that the best opportunity to bring about a belated promotion would be through an SSB under the FY 2009 APL, USAR, criteria; as originally recommended by the NGB in its advisory opinion on 23 May 2016. g. Counsel also submits a letter by the Adjutant General, FLARNG, dated 20 July 2016 concurring with the NGB’s advisory opinion. REFERENCES: 1. National Guard Regulation 600-100, commissioned Officers, Federal Recognition and Related Personnel Actions, states that a commissioned officer must complete the minimum years of promotion service prior to being considered for promotion and Federal Recognition in the higher grade. The minimum years of promotion service in the grade of major to be considered for LTC is 4 years for a unit vacancy board. a. Paragraph 2-8, military educational requirements states to qualify for selection, commissioned officers must complete the military educational requirements in table 2-2 not later that the day before the selection board convene date. b. The officer must also be enrolled and participating satisfactorily at the time of consideration. Officers enrolled in an authorized resident command and staff college course at the time are considered for promotion to LTC will be granted equivalent credit for having completed 50 percent of the CGSC. 2. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) states an SSB will convene to correct/ prevent an injustice to an officer or former officer who was eligible for promotion but whose records, through error, were not submitted to a mandatory promotion selection board for consideration. a. An officer returned to an active status after having been in an inactive or retired status will not be considered for a Reserve of the Army promotion (mandatory or USAR position vacancy; or, in the case of an ARNGUS officer, Federal recognition) until at least 1 year after the date of return to an active status. b. Table 2-1 of Army Regulation 135-155 states the minimum time in grade (TIG) as a MAJ for promotion to LTC is 4 years and the maximum TIG is 7 years. The minimum TIG for promotion from LTC to COL is 3 years and the maximum TIG is 5 years. DISCUSSION: 1. Counsel for the applicant argues that due to FLARNG’s administrative error, the applicant was not able to go before a promotion board for LTC/O-5 for 5 years due to being erroneously placed on the ING vice the IRR. 2. The applicant’s service records show he met all the requirements for promotion to LTC/O-5, to include having completed the CGSC in 2004. 3. The evidence confirms that the applicant was considered for promotion in 2008, but was not promoted. However, subsequent to 2008, the applicant was deprived on an opportunity to be considered for promotion to LTC/O-5 thereafter by virtue of an administrative error. 4. The applicant’s records show he requested to be transferred from the ING to the IRR, which was approved on 16 March 2010; however, it appears, pursuant to the advisory opinion, that an administrative action was not properly executed until 6 October 2015. The FLARNG has since made the correction to transfer him to the IRR with a retroactive effective date of 16 March 2010. 5. Pursuant to Army Regulation 135-155, the applicant would have had to wait until at least 1 year after the date of return to an active status to be eligible for promotion consideration for LTC/O-5 on 15 March 2011. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002886 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002886 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2