IN THE CASE OF: BOARD DATE: 21 AUGUST 2008 DOCKET NUMBER: AR20070011243 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 that he be reinstated on active duty and retroactively promoted to lieutenant colonel (O-5) or, in the alternative, that he be retroactively promoted to the grade of O-5 for retirement purposes. 2. The applicant defers to counsel in regards to statements in support of his application. 3. The applicant provides in support of his application, a supplemental statement that was prepared by his counsel. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel, in the form of a supplemental statement, supports the applicant's request. 2. Counsel states that the applicant's early retirement was forced by his chain of command's failure to notify him for a period of more than 12 months that he had been retained on active duty by the Army Board of Review for Eliminations. He states that his ability to request an Active Duty Service extension was undermined as a result of this action. He states that his early retirement was similarly forced because he was not reassigned in 2005 as ordered by the Assistant Secretary of the Army, Manpower and Reserve Affairs. Counsel states that the applicant was selected for promotion to the grade of O-5 in calendar year 2004 and that, notwithstanding a relief for cause Officer Evaluation Report (OER) he received for allegedly using marijuana, he was never removed from the promotion list in accordance with Army Regulation 600-8-29 and federal law. He states that though the applicant should consequently have been promoted to the grade of O-5, he was not promoted because he remained erroneously flagged by his command for more than a year after the final administrative disposition in his case had been reached. 3. Counsel states that as a result of wrongful actions and inactions on the part of the applicant's command, he was denied the opportunity to perform military duties for nearly 3 years and subsequently encountered 41 months of non-rated time that erroneously rendered him non-competitive for future promotions. He goes on to provide a history of the applicant's service in the Active Guard Reserve (AGR) and the events that led to his retirement on 28 February 2007; a discussion on whether or not the applicant's retirement was voluntary, forced, or made under duress; reasons why the applicant's failure to be promoted warrants a retroactive promotion; and reasons why the applicant's failure to be assigned meaningful duties warrants relief. Counsel concludes by stating that the action taken against him between September 2003 and February 2007 are unforgivable. He states that the applicant was neglected, abandoned and misinformed over a period of years and that the several independent reasons that he provides, warrant that the applicant be reinstated on active duty and retroactively promoted to the grade of O-5, or in the alternative, that he be retroactively promoted to O-5 for retirement purposes. 4. Counsel provides in support of the applicant’s application orders, dated 7 April 2001, assigning him to the Field Medical Training Site, Charleston, South Carolina; a memorandum dated 6 November 2003, notifying the applicant that of his relief for cause; a memorandum dated 6 November 2003, referring the relief for cause OER; a memorandum dated 4 December 2003, notifying him that elimination action had been initiated; an acknowledgement of relief for cause memorandum dated 7 November 2003; a Board of Inquiry Report dated10 March 2004; a copy of a Report of Proceedings by Investigating Officer/Board of Officers dated 11 February 2004; a copy of the Summary of Proceedings; a copy of the applicant's request for retention on active duty dated 25 March 2004; a copy of a printout of the lieutenant colonel selection board results, maintained on the United States (US) Army Human Resources Command website; copies of the applicant's OER’s for the periods covering 1 April 1998 through 10 September 2003; and his Calendar Year 2004 Active Service Extension Board – Non-selection Notice dated 9 May 2005. 5. Counsel also provides a memorandum from the Deputy Assistant Secretary (Army Review Boards) dated 18 July 2005, notifying the Commander, U.S. Army Human Resources Command, of the Department of the Army Board of Review for elimination determination; a memorandum dated 20 July 2005, notifying the applicant of the decision to retain him on active duty; a copy of a memorandum dated 1 September 2005, entitled Active Guard Reserve (AGR) Lifecycle Management Process; a memorandum dated 3 November 2005, entitled AGR Lifecycle Management Process; copies of electronic mail between the applicant and Army officials regarding his status; reassignment orders dated 17 July 2006; the applicant's request for voluntary retirement dated 10 October 2006; a memorandum addressed to the Army Reserve Personnel Command dated 31 October 2006, requesting an Active Service Operational Extension; a Personnel Action addressed to the Commander, Human Resources Command, St. Louis, dated 23 October 2006, requesting an Active Service Operational Extension; electronic mail dated 2 November 2006, request for a review of an Active Service Operational Extension; orders dated 2 November 2006, reattaching the applicant to Fort Jackson for separation processing; orders dated 2 November 2006, releasing the applicant from active service and placing him on the retired list; electronic mail, request for a nonrated statement; and a copy of the applicant's Certificate of Release or Discharge from Active Duty (DD Form 214). CONSIDERATION OF EVIDENCE: 1. On 18 August 1984, the applicant accepted an appointment as a second lieutenant (O-1) in the United States Army Reserve. He was promoted to first lieutenant (O-2) on 17 August 1987; he was promoted to captain (O-3) on 16 August 1991; and he was promoted to major (O-4) on 27 May 1998. 2. On 7 April 2001, the applicant was ordered to active duty in an Active Guard/Reserve status and he was assigned to the Field Medical Training Site, Charleston Air Force Base, South Carolina, effective 4 June 2001. 3. Between 1 April 1998 and 17 August 2003 the applicant received six OERs. During these periods, he was rated at "Center of Mass" on four of his OERs and he was rated at Above Center of Mass on two of his OERs. 4. On 6 November 2003, in the form of a memorandum, the applicant was notified that during a random unit urinalysis that was conducted on 5 March 2003, he submitted a urine sample that tested positively for the presence of marijuana. He was informed by his commanding officer that based upon his use of an illegal substance, the memorandum served as written notification of his relief for cause. The applicant was also informed that he would receive an OER that would be referred to him and that he would have a right to submit an appeal. 5. Enclosed with a memorandum dated 6 November 2003, a Relief for Cause OER dated 7 November 2003 was referred to the applicant. In the OER, the rater stated that the applicant's lack of personal judgment resulted in a General Officer Article 15 proceeding and that a routine urinalysis produced a positive reading for use of marijuana. The rater stated that the applicant's willful indulgence in an illegal substance showed a lack of judgment and called into question his ability to lead; that the commanding general (CG) found him guilty and relieved him of his duties and that despite an otherwise solid performance of all assigned tasks, his actions violated his professional and legal obligations as a United States Army officer. The rater recommended that the applicant not be promoted and he stated that his retention in the U.S. Army was no longer warranted. His performance was rated as unsatisfactory. 6. The senior rater stated that, unfortunately, due to the applicant's lack of judgment and personal moral reasoning, he was relieved of his duties as team chief in a general officer Article 15 proceeding. The senior rater stated that the applicant was found guilty of the use of marijuana and that the CG directed that a copy of the Article 15 and a letter of reprimand for misconduct be placed in the performance section of his Official Military Personnel File (OMPF). The senior rater stated that no future service to the U.S. Army was recommended and that the applicant should not be promoted or retained in the Army. He was rated below center of mass. 7. A review of the performance section of the applicant's OMPF failed to show the Article 15 and the letter of reprimand that were directed to be filed therein. A review of the restricted portion of his OMPF also failed to show the Article 15 and the letter of reprimand. 8. On 4 December 2003, the applicant was notified by the CG that action to eliminate him from the Army had been initiated. He was told that he was required to show cause for retention on active duty because of misconduct, moral or professional dereliction, or in the interest of national security. The CG cited acts of personal misconduct involving drugs as the basis for the initiation of elimination action. He was informed of his right to submit his resignation in lieu of elimination, request discharge in lieu of elimination, apply for retirement in lieu of elimination, or request discharge or retirement in place of resignation. The applicant was informed that he had 30 days to acknowledge receipt of the notification and that he should include his tender of resignation, request for discharge or application for retirement in lieu of elimination as an enclosure to his acknowledgement. 9. A board of officers convened on 11 February 2004 to determine whether the applicant should be retained on active duty. The board determined that the applicant committed the act alleged in the notification letter (wrongful use of marijuana) and recommended that he be eliminated from the Army based on misconduct, moral or professional dereliction, with an honorable discharge. 10. On 10 March 2004, the applicant was notified by the CG that he had reviewed the proceedings rendered by the board of officers and that he had determined that elimination was appropriate. He was informed of his option to submit his resignation in lieu of elimination; request discharge in lieu of elimination; or apply for retirement in lieu of elimination if otherwise eligible. He was told that the entire case would be considered by a board of review and that he was entitled to a copy of the board of review report if he so desired. 11. On 25 March 2004, the applicant submitted a request for retention on active duty to the Commander, U.S. Army Personnel Command, for consideration by the Army Board of Review for Eliminations. In his request he provided a detailed statement of the status of his life at that time and he stated that if he was retained in the Army, he would be eligible for active duty retirement in just over 2 years. He stated that, although he would never be promoted, he could effectively function in any operational assignment; and that he wanted to continue to serve his country as a well qualified and highly effective officer. He stated that although the characterization of his service had been determined to be honorable, a guilty verdict had awarded him the shield of shame that he would live with him for the rest of his life. He concluded by stating that given the world situation and his particular circumstances, a decision to eliminate him imposed a life long punishment on his family that was not commensurate with the alleged offense and that a decision to retain him would not be inappropriate. 12. On 17 May 2004, the applicant was considered and selected for promotion to lieutenant colonel by a 2004 Lieutenant Colonel Army Medical Department (AMEDD) Board. The board recessed on 11 June 2004. 13. On 9 May 2005, the applicant was notified by the Director, Army Reserve Active Duty Management Directorate that he was not recommended for extension on active duty in the Army Reserve AGR program and that his retirement or removal date was 30 April 2007. He was further informed that although he was not selected for extension, it in no way was a reflection on his outstanding service to the AGR Program. 14. On 18 July 2005, the Department of the Army Board of Review for Eliminations determined that the applicant would be retained in the Army and be reassigned. A review of the board transcript reveals that the board concluded that the Government had shown by a preponderance of evidence that a basis for elimination existed, that being misconduct, moral and professional dereliction. Specifically, the board found that the applicant submitted a urine sample that tested positive for marijuana. Nonetheless, the board recommended the applicant's retention in the Army with reassignment. 15. In a memorandum dated 1 September 2005, the Acting Assistant Secretary of the Army (Manpower and Reserve Affairs), notified the Deputy Chief of Staff, G-1, the Chief, Army Reserve, and the Director, Army National Guard that effective immediately, he was suspending the policy that released AGR officers from active duty when they attained 20 years of active service. In the memorandum, the Acting Assistant Secretary of the Army (Manpower and Reserve Affairs) stated that in approving the suspension of the policy that releases USAR AGR officers from active duty when they attain 20 years of active service it permits the Army Reserve to manage its AGR officer force to officers' Mandatory Removal Date (MRD). Additionally, he approved the implementation of the new Army Reserve AGR Lifecycle Management Process which ensures retention of the best qualified Army Reserve AGR officers, while providing them an opportunity to serve to their MRD. 16. In the memorandum, the Acting Assistant Secretary of the Army (Manpower and Reserve Affairs) directed suspension of the Army Reserve Active Service Extension Board for Army Reserve AGR officers, he approved the implementation of Release from Active Duty Board for Army Reserve AGR officers to manage officer grade imbalances or strength overages that may occur in the future, and he directed that the Army G-1 submit the following legislative changes: (1) a repeal of the statutory requirements for AGR officers to be serving in positions of the next higher grade; (2) an amendment to permit the promotion of AGR officers by sequence numbers; and (3) if needed, a request for a temporary increase in AGR end strength and strength-in-grade limits prescribed by Congress. The Acting Assistant Secretary of the Army (Manpower and Reserve Affairs) authorized the National Guard Bureau to prepare an implementation plan to manage their AGR officers to MRD; however, he retained the authority to approve the plan prior to its implementation. 17. On 3 November 2005, the Principal Deputy Assistant Secretary (Manpower & Reserve Affairs) notified the Deputy Chief of Staff, G-1, the Chief, Army Reserve, and the Director, Army National Guard that officers who were previously nonselected by the Calendar Year 2004 Active Service Extension Board may apply through their chain of command to remain on active duty for operational reasons and that, if approved, officers would be managed to their mandatory removal date, subject to future force shaping to include AGR Release from Active Duty boards. The suspense for submission was extended from 1 October 2005 to 1 February 2006. 18. On 23 November 2005 the Director, Army Reserve Active Duty Management Directorate notified the Calendar Year 2004 Active Service Extension Board of an Active Service Operational Implementation. The memorandum indicates that commanders of officers not extended by the Calendar Year 2004 Extension Board may voluntarily request consideration for an operational extension for the non-extended officer and the recommendations for operational extension would be based on the needs of the Army Reserve. The memorandum also indicates that it was anticipated that there would be few requirements at senior officer grades in most specialties; that officers not requesting or who are not recommended for approval of an operational extension should plan to retire based on their current retirement or removal date; and that assessments for recommendations were based on the current needs of an officer's specialty rather than the position currently occupied. 19. The electronic mail that was submitted to this Board in support of the applicant's request shows that on 3 January 2006, 6 January 2006 and 1 August 2006, attempts were made by the applicant and Army officials to determine the applicant's status. 20. On 17 July 2006, orders were published releasing the applicant from assignment at the Field Medical Training Site and assigning him to the "1189 TC TML" unit effective 18 July 2006. 21. On 28 July 2006, the applicant submitted an application for voluntary retirement under the provisions of law cited in Army Regulation 600-8-24, paragraph 6-1, effective 28 February 2007, and placement on the retired listed effective 1 March 2007. He requested that he be transferred to the Retired Reserve immediately on retirement as he would have completed over 20 years of active Federal service on 18 December 2006. In his application, the applicant stated that he understood that if his application was accepted by the Secretary of the Army, it may not be withdrawn except for extreme compassionate reasons or for the convenience of the Government. The applicant also stated that he understood the provisions of Army Regulation 600-8-24, chapter 6, paragraph 60-1b, pertaining to the determination of his retired grade and that considering those provisions and after a review of his records, he believed that he was entitled to retire in the grade of O-4. He stated that he understood that the final determination of his retired grade would be made by Headquarters Department of the Army and that he would be informed if he was not entitled to retire in the grade that he specified. 22. In a Personnel Action dated 23 October 2006, the applicant submitted a request for an Operational Active Service Extension. In his request the applicant stated that he understood that if his extension was approved, he would have the opportunity to serve until his mandatory removal date for years of commissioned service or age unless he was sooner released from active duty (REFRAD) as a result of a REFRAD board; that his extension would not be approved for a specific period of time or a specific assignment; that he was subject to worldwide reassignment; and that he may request a voluntary retirement at any time permitted by Army Regulations, but if his retirement was voluntary, he must serve at least 3 years in grade to retire at that grade. He also stated that he understood that unless the Director, Army Reserve Active Duty Management Directorate (or his representative) informed him that the Chief, Army Reserve had recommended approval of his Operational Active Service Extension request, he was still subject to his established retirement/release date and should plan on retiring as scheduled. The Personnel Action was not signed and dated by his commander or an authorized representative. 23. On 31 October 2006, the applicant submitted an Active Service Operational Extension request to the Commander, Army Reserve Personnel Command, stating that he never received the Deputy Assistant Secretary (Army Review Boards) decision that he be retained in the Army and reassigned until June 2006. The applicant stated that he was reassigned on 18 July 2006 with no explanation, a full year after the Army Review Board determination, and 5 months past the suspense cut off for submitting an Active Service Operational Extension request. The applicant stated that his failure to be notified by his chain of command prevented him from requesting an Operational Extension. 24. The electronic mail submitted in support of the applicant's request shows that on 22 August 2006, 24 October 2006 and 25 October 2006, the applicant was in contact with Army officials requesting that he be provided nonrated statements for the period covering 11 September 2005 through 17 July 2006. 25. Orders were published on 2 November 2006, releasing the applicant from active service, duty and assignment effective 28 February 2007 and placing him on the retired list effective 1 March 2007, in the rank of Major (O-4). The DD Form 214 that he was furnished at the time of his REFRAD shows that he was retired after obtaining sufficient service for retirement, and that he had 20 years, 4 months and 7 days of total active service. 26. During the processing of this case an advisory opinion dated 24 January 2008 was obtained from the Director, Army Reserve Active Duty Management Directorate who recommended disapproval of the applicant's petition to be reinstated in the Army Reserve AGR Program as their records show that the applicant had an adverse suspension of favorable personnel action effective 20 October 2003 that was not lifted until 3 May 2006. The Director, Army Reserve Active Duty Management Directorate stated that the applicant was prohibited any favorable actions during that period, to include a reassignment to a higher grade or promotion. 27. In the advisory opinion, the Director, Army Reserve Active Duty Management Directorate goes on to state that on 11 February 2004, a Board of Inquiry recommended that he be eliminated from the Army for misconduct, moral or professional dereliction, with an honorable discharge and that on 14 July 2005, the Army Board of Review for Eliminations determined that the applicant should be retained in the Army; however, it did not stipulate that he should be retained in the AGR Program. Therefore, he was separated from the AGR Program on 1 March 2007. The Director, Army Reserve Active Duty Management Directorate concluded by stating that the applicant was considered but not selected for extension in the AGR by the Active Service Extension Board and that he was afforded the opportunity to request an operational extension, but he failed to do so within the regulated timeframe. 28. In a rebuttal to the advisory opinion dated 18 February 2008, the applicant's counsel stated that the advisory opinion did not address any of the issues raised by the applicant, rather it was restatement of known facts without analysis. Counsel stated that there is no mention of the applicant's arguments regarding his retirement as a lieutenant colonel; that there is no explanation as to why the flag was not lifted subsequent to a favorable adjudication; and that there certainly is no mention of the Army's abysmal failure to communicate information to the applicant which would have provided him with an opportunity to protect his interests. Counsel requests an explanation as to how the applicant was afforded an opportunity to request an operational extension and he concludes by stating that the involuntariness of the applicant's retirement was totally ignored. 29. Army Regulation 135-18 (The Active Guard Reserve (AGR) Program) states all AGR officer personnel will be released from active duty or full-time National Guard duty when they have attained 20 years and 1 month of qualifying service for retirement purposes under Title 10, U. S. Code, section 3911 (Retirement for length of service, 20 years or more: Regular or Reserve commissioned officers) unless they have been approved for voluntary retention. 30. Army Regulation 135-18, Rule H, Table 2-6 states an officer who was, or should have been, as determined by the Chief, National Guard Bureau or the Chief, Army Reserve, under a current suspension of favorable personnel action (flagged) per AR 600-8-2 has a non-waivable disqualification for subsequent duty in the AGR program. 31. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers of the ARNG, and commissioned and warrant officers (WO) of the USAR. Paragraph 4-21(d) provides guidance on promotion effective dates. Subparagraph (d) states, in pertinent part, that AGR officers selected by a mandatory board will be promoted provided they are assigned/attached to a position in the higher grade. An AGR officer who is selected for promotion by a mandatory promotion board, but who is not assigned/attached to a position in the higher grade will be promoted on the date of assignment/attachment to a higher graded position or the day after release from AGR status. The date of rank will be the date the officer attained maximum time in grade or the date on which assigned/attached to a position in the higher grade, whichever is earlier. DISCUSSION AND CONCLUSIONS: 1. The contention made by counsel that the applicant's "early retirement" was forced by his chain of command's failure to notify him for a period more than 12 months that he had been retained on active duty by the Army Board of Review for Eliminations is without merit. While it cannot be explained why it took over a year to inform him of the decision that was made in his case, the evidence of record shows that he was notified on 9 May 2005, that he was not recommended for extension on active duty in the Army Reserve AGR Program and that his retirement or removal date would be 30 April 2007. 2. There is no evidence in the available records that shows that his failure to be recommended for extension on active duty was the result of not being timely notified of the Army Board of Review for Eliminations decision. The evidence of record shows that he was furnished a relief for cause OER after he produced a positive urinalysis reading for use of marijuana. Although he was selected for promotion to lieutenant colonel by the LTC AMEDD Board that convened on 17 May 2004, action to eliminate him from the Army had been initiated on 4 December 2003 and as such, his records were placed in a "flag" status and he could not be promoted or reassigned. Similarly, this flag also prohibited his selection for extension on active duty in the AGR program by the CY 2004 Active Service Extension Board. 3. The applicant's and counsel's contention that he should have been able to apply for the operational extension, but could not because he did not know of the Board for Eliminations action until a year after it was made and the fact that his records were flagged after the Board of Review for Eliminations' decision was made has been noted. Once the Board of Elimination made its decision to retain him, he should have had his flag lifted, as there was no other condition under Army Regulation 600-8-2, paragraph 1-12 that warranted a flag. Had he been notified in a timely fashion, he could have made a timely request for an operational extension all the way through 1 February 2006. Hence, at this point, failure to notify the applicant of the Board for Eliminations' action was technically in error. However, that error was, by any measure, harmless. The applicant wrongfully used marijuana. He has not provided sufficient evidence to show that the conclusion made by the CG imposing the Article 15 that he committed this offense was in error. The purpose of the Operational Extension Board was to retain the best qualified Reserve/AGR officers until their mandatory retirement date. The applicant has provided no evidence to show that his chain of command would have supported his request for an extension or that his records would have been remotely competitive with other officers who had not engaged in drug use. 4. It is within the Secretary of the Army's authority to release AGR officers from active duty once they attain 20 years and 1 month of active Federal service unless they have been selectively retained. The applicant has provided no evidence to show he was treated inequitably in comparison with other Army AGR officers. He was notified that he was not recommended for extension in the AGR Program on 9 May 2005, which was prior to the Department of the Army Board of Review for Eliminations determination on 18 July 2005. Therefore, regardless of the date that he was notified of the Board of Review for Eliminations determination, his retirement or mandatory removal date would have been 30 April 2007. 5. The applicant submitted his application for voluntary retirement and he indicated that he understood that once his application was accepted by the Secretary of the Army, it may not be withdrawn except for extreme compassionate reasons or for the convenience of the Government. He requested that his retirement date be effective 28 February 2007. It was not until after he learned the Board of Review for Eliminations decision that he submitted his request for Operational Active Service Extension which would not have been a sufficient justification for him to be retained in the AGR program. 6. It was not wrongful actions and inactions on the part of the applicant's command, denial of the opportunity to perform military duties for 3 years, or 41 months of non-rated time that rendered him non-competitive for future promotions. It was his removal from the AGR program and his relief for cause OER for willful indulgence in an illegal substance that made the applicant non-competitive for future promotions. Neither the applicant nor his counsel has submitted sufficient evidence that shows that the relief for cause OER that he received and/or the decision to remove from him from the AGR program was in error or unjust. Additionally, in order for the applicant to accept his promotion, he would have to show that he was serving in a lieutenant colonel position or performing the duties of a lieutenant colonel. 7. Notwithstanding the vagueness of the advisory opinion that was obtained in the applicant's case, he never held the rank of lieutenant colonel while he was in the USAR; therefore, there is no basis for promoting him to lieutenant colonel for retirement purposes. Additionally, as there is insufficient evidence to show the applicant was improperly retired from the USAR, it follows that there is also insufficient evidence to show that he should be reinstated on active duty and retroactively promoted to lieutenant colonel. 8. In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. 9. In view of the foregoing, there is no basis for granting the applicant's request. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __XXX __ __XXX__ __XXX__ 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. ___ XXX ___ 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) AR20070011243 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20070011243 13 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1