IN THE CASE OF: BOARD DATE: 29 July 2008 DOCKET NUMBER: AR20080008772 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 defers his request to counsel. 2. The applicant defers his statement to counsel. 3. The applicant provides his supporting evidence through counsel. COUNSEL’S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests correction of the applicant’s records by: a. vacating the applicant’s non-selection for promotion to lieutenant colonel (LTC) by the September 2003 Reserve Components Selection Board (RCSB); b. vacating the applicant’s separation from the U.S. Army Reserve (USAR), dated 31 October 2004; c. reinstatement of the applicant to the USAR in the rank of MAJ; d. consideration of the applicant’s records by a Special Selection Board (SSB) for promotion to LTC; e. restoration of all pay, allowances, entitlements, rights, and privileges, affected by the applicant’s discharge on 31 October 2004; and f. any other appropriate relief. 2. Counsel requests, in the alternative, that the applicant be issued a 20-year letter and granted eligibility for retirement pay and benefits, in accordance with current regulations. 3. Counsel states the following: a. he describes the applicant's military history/background, including his prior enlisted service, assignments, appointment, and awards and decorations. Counsel then goes on to describe the case history. (1) on 5 March 2002, the applicant was contacted for the first time by the Office of Personnel Management (OPM) concerning a request he initiated for a transfer to the active Reserve. The applicant further inquired if he were eligible to receive his 20-year letter; but was given different guidance by different people. Specifically, he was told he had over 18 years in the USAR, which, he was told, would have qualified him to continue his service; (2) the applicant received official notification on 3 April 2002 that he had been promoted to MAJ, despite having no prior knowledge of this action. He subsequently enrolled in the professional military education (PME) course required for promotion to LTC, on 28 June 2002. He had to complete 50 percent of the required PME by September 2002, the date his LTC board convened. However, the level of PME he required would have taken him 10 months; (3) on 12 July 2002, he was transferred from the Individual Ready Reserve (IRR) to the Individual Mobilization Augmentee (IMA) and was subsequently notified of his non-selection for promotion on 4 February 2003, due to not meeting the PME requirements. However, he had not been a drilling reservist and should not have been eligible for consideration for promotion; (4) subsequent to his call to active duty, service in Kuwait, and release from active duty, the applicant had still not completed his PME and was, again, not selected for promotion to LTC. He was accordingly released from the USAR and reassigned to the Retired Reserve; (5) in August and September 2004, the applicant exchanged emails with OMP and Human Resources Command (HRC) - St. Louis, MO, and attempted to remain on the RASL [reserve active status list] in order to qualify for his 20-year letter. He also submitted a request for an education waiver. However, that request did not yield any results; (6) the regulation at the time required an officer to spend the last 6 years in a Reserve component. The applicant had only been recently transferred from the IRR, and despite having completed 21 years of qualifying service, 16 [sic] of which had been on active duty, he still did not have his last 6 years in a Reserve component. The law was changed on 28 October 2004 and became effective on 1 May 2005, deleting the requirement to have 6 years, but the applicant was separated 27 days before the change was enacted. b. counsel makes the following arguments: (1) the applicant was notified of his promotion 7 years after the effective date of that promotion and 7 1/2 years after the time in grade date. When he made the request to transfer from the IRR to the IMA in 2001, he was not aware of this promotion action; (2) he was unable to enroll in the required PME in time to be eligible for the next selection board. As soon as he was notified of his promotion, he enrolled in the required PME, but due to time constraints from the date he was notified of his promotion to the date the LTC board convened, it was impossible to complete the PME. His records should not have been considered in that board since he did not meet the eligibility and had inadequate time to complete the required PME. He again was unable to complete PME the following year due to his call to active duty and subsequent deployment, and despite not being qualified for consideration for the second LTC board, his record was still considered. The second non-selection led to his separation; (3) the applicant was given confusing guidance by others and was misinformed by HRC officers that he did not need to spend the last 6 years in a Reserve component to qualify for the 20-year letter. The emails clearly show that, although the applicant’s issue was discussed, there was no solution provided to the applicant that specifically addressed and answered his questions; c. the applicant was assured that at the time, as long as he had 18 years, he would be allowed to stay in until he qualified for the 20-year letter. The applicant made every attempt to remain in the IMA, including an education waiver and a request for his records to go before the 2004 SSB, but all efforts failed. Specifically, the Army failed to properly notify the applicant of his promotion, failed to address his ineligibility for the first LTC board, and failed to take appropriate action and correct the error. 4. Counsel provided the following additional documentary evidence in support of the applicant’s request: a. DD Forms 214 (Report of Separation from Active Duty), dated 31 May 1977, 30 May 1980, 1 August 1983, and 3 September 2003. b. DD Form 4 (Enlistment/Reenlistment Document-Armed Forces of the United States), dated 1 August 1980. c. DA Form 71 (Oath of Office), dated 15 May 1982. d. DA Forms 1059 (Service School Academic Evaluation Report), dated 14 December 1984 and 9 December 1988. e. DA Forms 67-8 (Officer Evaluation Report), for the periods 841215 to 850630; 850701 to 851107; 851108 to 860711; 860712 to 861030; 861031 to 870501; 870502 to 880501; 881210 to 891209; 891210 to 900420; 900421 to 910420; 910421 to 910731; 910801 to 920518; 920519 to 930519; and 20020910 to 20030228. f. Letter, dated 5 March 2002, from the Office of Personnel Management. g. Undated Letter, from the Applicant to the Commander, Army Reserve Personnel Center (now known as Human Resources Command or HRC), St. Louis, Missouri (MO). h. HRC-St. Louis, MO, Memorandum, dated 3 April 2002, Promotion to MAJ memorandum. i. Training Enrollment History, as of 4 September 2003. j. ARPC Form 249E (Chronological Statement of Retirement Points), dated 19 May 2006. k. HRC-St. Louis, MO, Reassignment to the USAR Control Group Orders, dated 12 July 2002. l. HRC-St. Louis, MO, Memorandum, dated 4 February 2003 and 19 February 2003, Non-selection for promotion to LTC. m. Extract of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), dated 13 July 2004. n. HRC-St. Louis, MO, Order to Active Duty, dated 18 March 2003, and Amendments, dated 21 March 2003. o. Deputy Secretary of Defense Memorandum, dated 18 May 2004, Streamlined Process for Continuation of Officers on the Reserve Active Status List (RASL). p. Headquarters, U.S. Army Infantry Center, Fort Benning, Georgia (GA), Release from Active Duty Orders, dated 20 August 2003. q. HRC-St. Louis, MO, Reassignment to the Retired Reserve Orders, dated 25 August 2004. r. Electronic mail (email) exchange between the applicant and another officer, dated on miscellaneous dates. s. Extract of Public Law 108-375, dated 28 October 2004. t. Extract of 10 USC, section 12731. 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. The applicant’s records show that he was born on 24 August 1957 and enlisted in the Regular Army for a period of 3 years on 30 August 1974. He held military occupational specialty (MOS) 36C (Lineman), attained the rank/grade of specialist four (SP4)/E-4, and was honorably discharged on 31 May 1977 for the purpose of immediate reenlistment. He reenlisted for a period of 3 year on 1 June 1977 and was honorably relieved from active duty, in the rank/grade of specialist five (SP5)/E-5, and transferred to the USAR Control Group (Reinforcement) on 30 May 1980. 3. The applicant’s records further show that, after a short break in service, he enlisted in the grade of E-5 in the USAR for a period of 4 years. He subsequently submitted an application for appointment as a commissioned officer in the Regular Army on 7 February 1982 (erroneously shown as 1984). 4. On 15 May 1982, the applicant was appointed as a Commissioned Officer, in the Quartermaster Corps of the Regular Army, in the rank of second lieutenant (2LT). He executed an oath of office on the same day and subsequently entered active duty on 24 July 1984. He completed the Quartermaster Officer Basic Course and was subsequently promoted to first lieutenant (1LT)/O-2 on 14 May 1985 and to CPT/O-3 on 1 October 1987. 5. On an unknown date in 1992 or 1993, the applicant submitted his request for unqualified resignation from the Regular Army. He was honorably discharged on 1 August 1993, in accordance with chapter 3 of Army Regulation 635-100 (Officer Personnel) under the Voluntary Separation Incentive (VSI) program. The DD Form 214 he was issued at the time shows he had completed 14 years, 9 months, and 10 days of creditable active military service. 6. On 1 August 1993, by memorandum, HRC-St. Louis, Missouri, notified the applicant that he was appointed as a USAR commissioned officer, in the rank/grade of CPT/O-3, in the Quartermaster Corps. He subsequently executed an oath of office on 9 August 1993. 7. On 3 April 2002, by memorandum, HRC-St. Louis, MO, notified the applicant of his selection for promotion to MAJ/O-4 with a promotion eligibility and effective date of 30 September 1994 (7 years from his promotion to CPT on 1 October 1987). The memorandum also informed the applicant that his promotion was contingent upon his being medically qualified for retention as of 7 April 1995. 8. On 14 July 2002, HRC-St. Louis, MO, published Orders C-07-218020, releasing the applicant from the USAR Control Group, and reassigning him to a Troop Program Unit (TPU) with duty at the Defense Logistics Agency, Fort Belvoir, Virginia (VA), effective 10 July 2002. 9. On 4 February 2003, by memorandum, HRC-St. Louis, MO, notified the applicant that he was considered for promotion to LTC by the Department of the Army (DA) Reserve Components Mandatory Selection Board that convened on 4 September 2002, but was not selected for promotion. This memorandum further informed the applicant that as of the day the Board convened, his records did not indicate that he had completed the required civilian and/or military education. 10. On 18 March 2003, HRC-St. Louis, MO, published Orders M-03-301841, ordering the applicant to active duty for a period of 365 days in support of Operation Enduring Freedom. He subsequently entered active duty at Fort Benning, Georgia, on 23 March 2003 and served in Kuwait from 31 March 2003 to 17 August 2003. He was honorably released from active duty on 3 September 2003 and was assigned to the USAR Control Group (IMA). 11. On 19 February 2004, by memorandum, HRC-St. Louis, MO, notified the applicant that he was considered for promotion to LTC by the DA Reserve Components Mandatory Selection Board that convened on 3 September 2003, but was not selected for promotion. 12. On 25 August 2004, HRC-St. Louis, MO, published Orders C-08-421206, releasing the applicant from the USAR Control Group (IMA) and reassigning him to the Retired Reserve, effective 1 October 2004, by reason of non-selection for promotion. 13. Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) covers policy and procedures for assigning, attaching, removing, and transferring U.S. Army Reserve Soldiers. It defines Ready Reserve Control Groups and the Selected Reserve. For strength accountability purposes, the IRR consists of pre-trained individual Soldiers assigned to various control groups for control and administration who are available for mobilization in time of war or a national emergency declared by Congress. One of the IRR control groups under the administrative jurisdiction of the commander HRC-St. Louis, Missouri, is the USAR Control Group (Reinforcement). Assignment in this category is authorized for a Soldier with or without a remaining statutory military service obligation, under certain conditions. 14. Paragraph 4-4 of this regulation states, in effect, that an officer who is not obligated to serve in a TPU, an IMA assignment, or on active duty in Active Guard Reserve (AGR) status, by statute or contract may be reassigned to the USAR Control Group (Reinforcement) on request. Voluntary reassignment from a TPU or IMA position to USAR Control Group (Reinforcement) is authorized when there is a confirmed un-resolvable employment conflict; when the officer has a change of address to an area beyond reasonable commuting distance of a USAR training center; or for cogent personal reasons provided. 15. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other then General Officers), prescribes policy for selecting and promoting commissioned officers of both the Army National Guard of the United States (ARNGUS) and the U.S. Army Reserve (USAR), and warrant officers of the USAR. This regulation also covers promotion eligibility and qualification requirements, board schedules and procedures, and procedures on processing selection board recommendations. Paragraph 4-11 of this regulation states that an officer who has been recommended for promotion to the next higher grade must meet the requirements listed below before being promoted in the Reserve Components. The officer must: (1) Be on the Reserve Army Selection List serving in an active status; (2) Be in the zone of consideration as appropriate; (3) Be medically qualified; (4) Have undergone a favorable security screening; (5) Meet standards of the Army Body Composition Program (AR 600-9); (6) Be a satisfactory participant (attend unit drills). 16. Paragraph 4-15 of Army Regulation 135-155 states, in pertinent part, that the effective date of promotion for commissioned officers (except commissioned warrant officers) may not precede the date on which the promotion memorandum is issued. The promotion memorandum is not issued before the date the promotion board results are approved and confirmed by the Senate (if required). In addition, the officer must already be assigned/attached to a position in the higher grade or, if an IRR/IMA officer selected by a mandatory promotion board, have completed the maximum years of service in grade in the current grade. An officer is promoted after selection if all qualifications for promotion are met. When an officer does not meet the qualifications for promotion, the effective date of promotion will not be earlier than the later date all qualifications are met. 17. Army Regulation 135-155 provides that mandatory selection boards will be convened each year to consider Reserve Component officers in an active status for promotion to CPT through LTC. The regulation provides that in order to be qualified for promotion to LTC an individual must have completed 50 percent of the CGSC and 7 years of time in grade (TIG) as a MAJ before the convening date of the respective promotion board. 18. Army Regulation 135-155 specifies that promotion reconsideration by a special selection board/advisory board may only be based on erroneous non-consideration or material error, which existed in the record at the time of consideration. Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual’s non-selection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion. The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required military schooling. 19. Army Regulation 135-155 also states, in pertinent part, that an active duty officer, who is selected for promotion but removed from the ADL and placed in an active Reserve status prior to promotion, is not eligible for that promotion and that officer will be placed on the RASL and considered for promotion by a Reserve promotion board. An officer serving in the IRR selected for the first time for promotion to the next higher grade may be promoted on the date that he/she completes the maximum time in grade (MTIG). The maximum MTIG requirements for promotion from CPT to MAJ, is 7 years in the lower grade. 20. Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Nonregular Service), Paragraph 2-1a indicates that to be eligible for retired pay, an individual does not need to have a military status at the time of application for retired pay, but must have (1) attained age 60; (2) completed a minimum of 20 years of qualifying service; and, (3) served the last 8-years of his or her qualifying service as a Reserve Component (RC) Soldier. The requirement to serve the last 8 years in a Reserve Component was later amended to the last 6 years, and on 26 April 2005 this requirement was reduced to zero (0) years. 21. Army Regulation 135-180 also specifies, in part, that each Reserve component Soldier who completes the service required to be eligible for retired pay at age 60 will be notified in writing with a 20-year letter within 1 year after he/she completes the service. 22. Army Regulation 140-10 sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers. Chapter 7 of the regulation relates to the removal of Soldiers from an active status and states, in pertinent part, that Soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve. In particular, paragraph 7-3.1 states that an officer (other than a commissioned WO) or enlisted Soldier who has accrued 20 years of qualifying service for retired pay is required to attain 50 points annually to be retained in an active status in the Selected Reserve, IRR, or Standby Reserve (Active List). An officer (other than a commissioned WO) or enlisted Soldier who fails to attain 50 points by the anniversary of his or her retirement year ending date, will be removed from active status. DISCUSSION AND CONCLUSIONS: 1. The applicant’s counsel contends that the applicant is entitled to vacate his non-selection for promotion to LTC by the September 2003 RCSB; vacate his 31 October 2004 separation from the USAR; reinstatement to the USAR in the rank of MAJ; consideration of his records to LTC by an SSB; restoration of all pay, allowances, entitlements, rights, and privileges, affected by the applicant’s discharge on 31 October 2004; and any other appropriate relief. Alternatively, counsel requests the applicant be issued a 20-year letter and granted eligibility for retirement pay and benefits, in accordance with current regulations. 2. When the applicant was discharged from the Regular Army on 1 August 1993 under the VSI program, he became a member of the IRR. However, he did not perform any drills from August 1993 to May 2002. When he was transferred from the IRR to the IMA, he had to wait one year to be considered for promotion. Since his DOR to CPT was 1 October 1987 and since the maximum TIG for promotion from CPT to MAJ is 7 years, the applicant’s effective date of promotion was 30 September 1994. He was accordingly notified. 3. With an effective date of DOR of 30 September 1994, by regulation, the applicant was eligible for promotion to LTC. He was considered by the 2002 mandatory board, but not selected. Governing regulation provides that in order to be qualified for promotion to LTC, an individual must have completed 50 percent of the CGSC and have 7 years of time in grade (TIG) as a MAJ before the convening date of the respective promotion board. The PME was not a requirement for consideration; but, rather, for selection. The applicant had a second chance to be considered; however, he still had not completed the PME. There is no evidence that his 5 months of active duty prevented him from completing the required PME. 4. The applicant was twice not selected for promotion to LTC; therefore, he was accordingly, and correctly, released from the USAR and was reassigned to the Retired Reserve. There is no indication that his release from the USAR and subsequent reassignment to the Retired Reserve was in error or unjust. Therefore, there is insufficient evidence to vacate his separation orders. 5. With respect to the applicant's consideration for promotion to LTC by a Special Selection Board, there is no evidence in the applicant’s records and the applicant failed to provide substantiating evidence that shows his record contained an erroneous non-consideration or material error, which existed in the record at the time of consideration. Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual’s non-selection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion. Therefore, there is insufficient evidence to grant the applicant’s request for consideration by a Special Selection Board. 6. Since the applicant is not entitled to vacation of his separation orders, consideration by an SSB, or reinstatement to the USAR, there is no grounds or basis in the applicant’s records that shows he is entitled to restoration of any pay or allowances, entitlements, rights, or privileges. 7. With respect to the 20-year letter, there is no evidence that the applicant served the last 6 years in a Reserve status. In order for the applicant to be issued a 20-year letter, he did not need to have a military status at the time of application for retired pay, but must have attained age 60; completed a minimum of 20 years of qualifying service; and, served the last 6 years of his qualifying service as a Reserve Component (RC) Soldier. Therefore, he would not have qualified for the issuance of a 20-year letter. 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) AR20080008772 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080008772 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1