IN THE CASE OF: BOARD DATE: 11 August 2009 DOCKET NUMBER: AR20090001862 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, through a court remand, further consideration of his request that his records be corrected to show: "…that I be promoted to Colonel effective 5 June 1995 as was required under then and current Army regulations. I further request that my service record be corrected to accurately reflect the granted date of rank. I am not requesting and I specifically waive any entitlement to retirement back pay for the period from my retirement 31 Jan 1995 until I returned to active duty 14 February 2006." 2. In an amended request, dated 16 July 2009, the applicant requests, through counsel, that his records be corrected to show: "…be promoted to O-6 with a date of rank of February 1, 1995, together with all back pay, allowances, and benefits to which he is entitled as a result of that correction. Such backpay also should cover his active duty service since his recall from retirement in 2006. He further requests that his retirement pay, retroactive and prospective, be adjusted accordingly." 3. The U. S. District Court for the District of Columbia, on 11 February 2009, vacated the 13 May 2008 decision of the Army Board for Correction of Military Records (ABCMR) (Docket Number AR20080001732) and remanded the case to the ABCMR for further proceedings consistent with the Court's opinion. The Court noted that both parties narrowed their arguments to focus on issues relating to waivers of the retirement policy and the utility of a remand. 4. The Court focuses its inquiry on whether the ABCMR's explanations for the decision to decline to retroactively promote the applicant "demonstrate that defendants 'permissibly exercised [their] discretion and made a choice that is supported by at least substantial evidence.'" The Court found that on the basis of the record before it, the ABCMR's stated reasons for denying the applicant's request were not supported by substantial evidence and did not demonstrate a rational connection between the facts found and the choice made. 5. The Court found that the ABCMR did not challenge the validity of Army Regulation 635-100, paragraph 4-12e, which the applicant argued permitted him to withdraw his then-pending October 1994 retirement application, remain on active duty, and accept his promotion to COL. The Board instead reasoned that the applicant was not permitted to accept any promotion at all because "his retirement was required by regulation," apparently relying on "three" regulations cited earlier (i.e., Army Regulation 135-18, paragraph 4-11c; Army Regulation 135-18, paragraph 4-12; and National Guard Regulation 600-5). 6. The Court also found that the ABCMR lacked a substantial basis for concluding that the applicant would not be able to obtain "any further waivers" of the retirement policy. The Government argued that the Board's conclusion was reasonable as the Board placed greater weight on the regulatory policy that generally mandates retirement after 20 years of active Federal service. However, that argument appeared nowhere in the Board's decision, and the Board itself recognized that the applicant had already received a waiver on 10 March 1994 ordering him to active duty "for an indefinite period." 7. The Court noted that the Board's failure to provide a discernable rationale was "especially troubling" given that it also failed to respond to the significant record of evidence that was extremely "favorable to the plaintiff's bid for promotion" and would have provided ample support for his efforts to obtain a waiver. 8. The Court further noted that the Government also argued that even if the applicant had received a waiver to remain on active duty in 1995, remand was unnecessary because the ABCMR concluded that the applicant "could not have accepted the promotion unless he performed the job in a colonel's position." However, the Court determined it was not inconceivable that the Board might, during readjudication, decide to award the applicant a retroactive promotion in light of the administrative errors surrounding his undisputed selection by the 1994 Reserve Components Selection Board (RCSB) for promotion to colonel. 9. The Court determined that a remand was appropriate so that the Board could decide the issues for itself. The Court requires only that the Secretary, on remand, explain more fully the reasoning behind his decision and, with respect to his denial of a retroactive promotion, to apply the appropriate legal standard. 10. In his 16 July 2009 amended request, counsel for the applicant stated, in part, that the applicant was the victim of a series of errors and injustices, for which he was not responsible, that ultimately led to his unlawful retirement in the grade of O-5, rather than O-6. Counsel stated that, as the Court properly emphasized, "plaintiff's final four evaluations were co-authored by the Chief or Acting Chief of the NGB -- the very officer who would have processed any waiver request (for retention on active duty in an AGR status) that plaintiff might have submitted." The clear implication of that statement is that the Court believed that the applicant would have received a waiver, if in fact he were required to request one. The Court was correct: there is no question that a waiver request would have been approved. The NGB clearly stated, repeatedly, its desire to retain the applicant's active duty services. 11. Counsel further states that when the applicant applied for voluntary retirement, he was unaware that he had been selected for promotion and did not learn of his selection until late November 1994. He then took aggressive steps to secure his promotion, which demonstrate his clear intention to accept his promotion and continue his active duty service as a colonel. The Army was remiss in failing to inform him of his right to withdraw his voluntary retirement. Had the applicant been properly advised, it is indisputable that he would have withdrawn his retirement application. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20070000376 on 16 August 2007 and reconsidered by the ABCMR in Docket Number AR20080001732 on 13 May 2008. 2. The applicant was born on 31 March 1948. He was commissioned on 21 December 1972. He served in the Regular Air Force from 24 January 1973 through 3 May 1982 after completing 9 years, 3 months, and 9 days of creditable active service. He was appointed a captain in the ARNG on 4 May 1982 and entered active duty in a Title 10, U. S. Code, Active Guard Reserve (AGR) status that date. Orders dated 3 April 1990 released him from attachment to the NGB, U. S. Army Element, Washington, DC and attached him to the NGB, U. S. Army Element, Washington, DC with duty at the Office of Joint Planning and Development Group, Pentagon. He was promoted to lieutenant colonel (LTC), O-5 effective 6 June 1990. 3. Orders, dated 24 June 1992, extended the applicant’s Title 10 AGR active duty commitment to 31 December 1993. 4. Orders, dated 2 June 1993, reassigned the applicant to the transition point with a reporting date of 25 October 1993 and an effective date of retirement of 1 January 1994. These orders were apparently later rescinded/revoked. 5. Orders, dated 10 March 1994, ordered the applicant to active duty in an AGR status for an indefinite period for duty as the Assistant Executive Officer, Vice Chief, NGB, The Pentagon, Washington, DC. 6. The applicant was considered and selected for promotion to COL by the 1994 RCSB that convened on 19 July 1994. The promotion memorandum (a pre-printed form letter), dated 14 October 1994 and addressed to the Army National Guard Personnel Center, Alexandria, VA, stated that he was selected for promotion by a board that adjourned on 19 August 1994, and his promotion eligibility date (PED) would be 5 June 1995. It also stated, “If officer accepts promotion and Federal recognition is not extended in the next higher grade, he/she will be transferred in his/her current grade to the U. S. Army Reserve on the day following the date of termination of Federal recognition.” 7. The U. S. Army Human Resources Command - St. Louis integrated Personnel Management Records Management System indicates that the applicant's 1994 promotion memorandum was posted to his records on 28 March 1995. 8. ABCMR Docket Number AR20070000376, dated 16 August 2007, indicates that the NGB notified the applicant of his retirement computation for voluntary retirement on 18 October 1994. 9. Orders, dated 18 October 1994, retired the applicant from active service effective 31 January 1995 under the provisions of Title 10, U. S. Code, section 3911 and placed him on the Retired List the following day in the rank and grade of LTC, O-5 with 22 years and 8 days of AFS. 10. On 17 November 1994, the results of the 1994 COL RCSB were released and forwarded for Senate confirmation. The Court, in its background of the case, noted that the list of promotion selections was published shortly thereafter in the Army Times, where the applicant learned of his selection for promotion for the first time. The Court noted that he immediately contacted the NGB and NYARNG regarding his promotion and, on 4 January 1995, submitted the necessary paperwork to the NGB to effect his promotion. However, there is no evidence of record to show he asked to remain on active duty. 11. Office of The Adjutant General, State of New York Orders 223-013, dated 18 November 1994, separated the applicant from the ARNG effective 14 November 1994 and transferred him to the Retired Reserve. These orders were corrected on an unknown date to separate him effective 31 January 1995. 12. An NGB Form 22 (Report of Separation and Record of Service) was issued separating the applicant from the ARNG effective 14 November 1994 and transferring him to the Retired Reserve. This NGB Form 22 was corrected on 27 January 1995 to show he was separated on 31 January 1995. 13. On 4 January 1995, the Assistant Chief, NGB, forwarded a memorandum to The Adjutant General, State of New York, recommending the applicant for promotion to COL with assignment at NGB. 14. On 20 January 1995, the NYARNG submitted a promotion packet for approval of the applicant’s promotion to COL. 15. Orders, dated 25 January 1995, were issued by the Office of The Adjutant General, NYARNG, promoting the applicant to COL effective 25 January 1995. 16. On 31 January 1995, the applicant was released from active duty for sufficient service for retirement under the provisions of Army Regulation 635-100, chapter 4. His DD Form 214 (Certificate of Release or Discharge from Active Duty) indicated he had completed 24 years and 8 days of AFS. (His DD Form 214 contains several errors in item 12 (Record of Service), indicating he entered active duty on 24 February 1982 (vice 4 May 1982); completed 12 years, 11 months, and 8 days of net active service this period (vice 12 years, 8 months, and 26 days); and 11 years and 1 month of total prior active service (vice 9 years, 3 months, and 9 days)). He was transferred to the Retired Reserve in the rank of LTC. 17. On 6 February 1995, the Senate confirmed the results of the 1994 RCSB. 18. ABCMR Docket Number AR20070000376, dated 16 August 2007, indicates that on 17 April 1995 the Director, Army Personnel, NYARNG, notified the NGB Personnel Division that the NGB had requested the State promote the applicant to the grade of COL for retirement purposes as he had departed the Title 10 Tour Program. The NYARNG enclosed a memorandum from a career counselor with their Plans and Actions Branch that indicated the applicant could not legally be promoted to COL prior to his retirement date as the promotion list he was on was not confirmed by the Senate until after he retired. 19. The applicant was recalled to active duty on or about 19 February 2006 in the rank of LTC. He was released from active duty on 24 October 2008. He was again recalled to active duty on 25 October 2008. 20. National Guard Regulation 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions), section IV (Promotion of ARNG officers serving on Title 10 AGR tours) provides the procedures for promotion and continuation on active duty of ARNGUS commissioned officers serving on Title 10 AGR tours. Paragraph 8-20 states that, upon selection for assignment and promotion to a position requiring a higher grade, the AGR Management Branch will forward correspondence inviting the State to promote the officer to the next higher grade effective on a specific date. If acceptable, the State will issue orders promoting the officer citing this regulation. States are only authorized to promote Title 10 AGR officers and continue them on active duty when the following conditions have been met: (1) The officer is eligible and qualified for promotion in accordance with all other provisions of this regulation (Federal recognition board is required unless the officer has been selected for promotion by the Department of the Army Mandatory Selection Board); and (2) The officer is serving in a higher graded position and an appropriate grade authorization has been provided to the respective State by the AGR Management Branch, NGB. 21. National Guard Regulation 600-100, section III (Mandatory Consideration for Promotion), paragraph 8-14, states that ARNG commissioned officers will be mandatorily considered for promotion as Reserve commissioned officers of the Army when they meet minimum promotion service requirements prescribed for the zone of consideration. The provisions of Army Regulation 135-155 will apply. 22. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers), paragraph 4-18b of the version in effect at the time (Update 23, dated 1 September 1994), stated a Reserve officer, on transfer to the Retired Reserve, would be “Transferred in the Reserve grade for which selected for promotion. This is when the transfer is being made because of physical disability, or as a result of completing the number of years of service, or reaching the age at which retirement, transfer to the Retired Reserve, or discharge is required by law.” 23. Army Regulation 135-155, paragraph 4-8a of the version in effect at the time, stated that a USAR officer who was mandatorily considered and then selected for promotion would be transferred from the unit to the IRR and promoted. Promotion would be not later than 90 days after the receipt of promotion notification or the normal established promotion eligibility date (PED), whichever was later. 24. Army Regulation 135-155, paragraph 4-10 of the version in effect at the time, stated that an officer who had been recommended for promotion to the next higher grade must have met several requirements before being promoted. One of the requirements was to have been in an active Reserve status. 25. Army Regulation 135-155, paragraph 4-14 of the version in effect at the time, stated that the effective date of promotion of AGR officers would be the latest date shown under paragraph 4-19b(4). (The cite was actually paragraph 4-19d in that version.) Paragraph 4-19d stated that AGR officers would be promoted effective on their PED provided they were attached to a position in the higher grade. An AGR officer who was not attached to a position in the higher grade would be promoted effective on the date of reattachment to a higher graded position or the day after release from AGR status. The PED would then become the date of rank. 26. Army Regulation 635-100 (Personnel Separations – Officer Personnel), in effect at the time, section II (Voluntary Retirements), paragraph 4-12e, stated that an officer who had an approved retirement pending, and who subsequently was selected for promotion, had the option to withdraw his or her voluntary retirement application and accept the promotion. Requests would be forwarded through channels to the Commander, U. S. Total Army Personnel Command. 27. Army Regulation 140-10, section II (Exceptions to Removal from Active Status), paragraph 7-12(j) (Exception number 10 (Removal rule 1, Removal from an active status of LTCs and below upon completion of 28 years of commissioned service)) of the version in effect at the time, stated that LTCs recommended by a selection board for promotion to COL would be retained and removal would be governed by all criteria pertaining to the higher grade. 28. Title 10, U. S. Code, section 3848 pertains to the separation or transfer to the Retired Reserve of first lieutenants, captains, majors, and LTCs who complete 28 years of commissioned service. Title 10, U. S. Code does not contain a section “385b.” 29. Title 10, U. S. Code, section 1370, states that unless entitled to a higher retired grade under some other provision of law, a commissioned officer who retires under any provision of law other than chapter 61 (physical disability) or 67 (retired pay for non-regular service) of this title shall be retired in the highest grade in which he served on active duty satisfactorily for not less than six months. 30. Title 10, U. S. Code, section 1370(a)(2) at the time stated that, in order for a commissioned officer to be eligible for voluntary retirement under any provision of this title in a grade above major, that officer must have served on active duty in that grade for not less than three years. 31. Title 10, U. S. Code, section 1374(a) at the time the applicant was selected for promotion to COL, stated that a Reserve commissioned officer who was recommended for promotion to a higher Reserve grade or who was found qualified for Federal recognition in a higher Reserve grade and who before being promoted was transferred to the Retired Reserve because of physical disability or as a result of completing the number of years of service or reaching the age at which his retirement, transfer to the Retired Reserve, or discharge was required by law, would be transferred in the grade for which he had been recommended or found qualified for Federal recognition. 32. Title 10, U. S. Code, section 1374 was repealed in its entirety effective 1 December 1994. 33. Title 10, U. S. Code, section 1406(c) states that for a member entitled to retired pay under section 3911 the retired pay base is the monthly basic pay of the member’s retired grade. DISCUSSION AND CONCLUSIONS: 1. The Board acknowledges the Court's finding that the applicant would have been able to obtain further waivers, if required, to remain on active duty in his AGR status. As it appears the applicant was being groomed to become the Executive to the Vice Chief, NGB, it appears clear that the NGB would have taken any steps required to retain the applicant on active duty. 2. The Court found that the ABCMR did not challenge the validity of Army Regulation 635-100, paragraph 4-12e, which the applicant argued permitted him to withdraw his then-pending October 1994 retirement application, remain on active duty, and accept his promotion to COL. 3. Army Regulation 635-100, in effect at the time, section II, paragraph 4-12e, stated that an officer who had an approved retirement pending, and who subsequently was selected for promotion, had the option to withdraw his or her voluntary retirement application and accept the promotion. 4. Soldiers, enlisted personnel and officers, who are intent upon furthering their careers are keenly aware of when their applicable promotion boards meet. They are particularly aware of when they will be in a zone of consideration because that is when they must take special care to ensure their records are up-to-date. Therefore, the Soldier who is intent upon furthering his or her career is aware of when an applicable promotion board convenes. From history (that is, from prior promotion actions) the Soldier knows that shortly after convening, the promotion board adjourns. However, the applicant applied for retirement after the promotion board adjourned and before the results of the board were released. A reasonable conclusion from the timing of the applicant's request for retirement is that he was not interested in knowing the results of the promotion board or in furthering his career. 5. On 17 November 1994, the results of the 1994 COL RCSB were released and forwarded for Senate confirmation. The Court noted that the list of promotion selections was published shortly thereafter in the Army Times, where the applicant learned of his selection for promotion for the first time. The Court noted that he immediately contacted the NGB and NYARNG regarding his promotion and, on 4 January 1995, submitted the necessary paperwork to the NGB. However, there is no evidence to show that when he submitted that paperwork he also asked to remain on active duty. It is not credible to believe that an officer who has an approved voluntary retirement, who has just learned that he has been selected for promotion and who is interested in remaining on active duty to continue his career in the new grade and whose command has been grooming him for new responsibilities, will not ask what he needs to do to withdraw that voluntary retirement. 6. It is acknowledged that around the time the promotion list was released the applicant had orders separating him from the ARNG effective 14 November 1994 and transferring him to the Retired Reserve. However, it is not reasonable to believe that he thought he had actually been transferred to the Retired Reserve as of that date if, shortly after 17 November 1994, he contacted the NGB and NYARNG regarding his promotion. It is more reasonable to presume that he, the NYARNG, and the NGB all knew by the time he inquired about his promotion that his retirement date would be changed to 31 January 1995. 7. It therefore appears that since the applicant had adequate notice to inquire about his promotion; he would also have had adequate time to at least inquire about withdrawing his 31 January 1995 voluntary retirement. Yet, again, there is no evidence to show that he did so, and he does not contend that he did so. 8. The applicant merely contends that taking aggressive steps to secure his promotion demonstrated his clear intention to accept his promotion and continue his active duty service as a colonel and that the Army was remiss in failing to inform him of his right to withdraw his voluntary retirement. He contends that had he been properly advised, it is indisputable that he would have withdrawn his retirement application. 9. Again, however, because of the timing of the applicant's request for retirement there is reasonable doubt that he was interested in furthering his career. 10. In addition, inquiring about withdrawing his retirement should have been a reasonable expectation of a senior commissioned officer who wanted to accept a promotion and continue to serve on active duty long enough to be able to retire in the new grade. 11. Although the applicant served as an officer in the ARNG, he qualified for a regular retirement with more than 20 years of active Federal service. Accordingly, to retire as a COL, he was required to serve satisfactorily in that grade for at least three years. 12. While an officer might have some question as to how long (i.e., 6 months or 3 years or maybe something in between) he or she would have to serve on active duty in order to retire in a higher grade, it is not creditable to think that a senior commissioned officer would believe he only had to serve on active duty for 2 months or so (counting from the time the applicant "learned" of his promotion from the Army Times to the date of his retirement) or 6 days (counting from the time the NYARNG issued his promotion orders to the date of his retirement) before he could retire as a COL. 13. The fact that there is no evidence, and the applicant does not even contend, that he inquired about withdrawing his retirement and the fact of the timing of his request for retirement lead to reasonable doubt that he was interested in furthering his career at the time. It therefore does appear that the issue of whether he could have received a further waiver of retention on active duty in his AGR status is indeed moot. However, the timing of his request for voluntary retirement and the lack of evidence to show he inquired into withdrawing his retirement are sufficient evidence on which to deny the relief requested. 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 to amend the decision of the ABCMR set forth in Docket Number AR20070000376, dated 16 August 2007, and in Docket Number AR20080001732, dated 13 May 2008. _______ _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) AR20090001862 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090001862 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1