IN THE CASE OF: BOARD DATE: 18 February 2016 DOCKET NUMBER: AR20150004069 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 consideration for promotion to lieutenant colonel (LTC) in a non-Army Guard/Reserve (AGR) competitive category and retroactive promotion so the record shows he was promoted with his peers. 2. The applicant states, in effect: a. The fiscal year 2014 (FY14) Reserve Component (RC) Army Medical Department (AMEDD) Promotion Selection Board (PSB) that convened on 5 February 2014 would have considered him in his primary zone for LTC. He was not allowed to compete in this board or any subsequent boards due to his status following selection as a RAND (Corporation) Arroyo Center Fellow. b. He has an exception to policy request that has been staffed through the Office of the Surgeon General (OTSG) and Human Resources Command (HRC) that is now with the Department of the Army (DA) Judge Advocate General (JAG). c. By accepting the RAND Arroyo Center Fellowship, he agreed to transfer to the AGR for four years to complete his fellowship and service obligation, at which point he would be returned to the Selected Reserve. Prior to accepting the fellowship he discussed his LTC board eligibility with HRC and was informed that board consideration would not be an issue. When it came time for his primary zone consideration, he was informed that he was in the AGR and there are no Veterinary Corps officer authorizations in the AGR. He would not be boarded for LTC in the FY14 RC AMEDD LTC PSB or any other PSB while he was in an AGR status. d. Acceptance of an Army Broadening Opportunity Fellowship seems at odd with the spirit of the fellowship. A major consideration for acceptance into the program was promotion potential. e. Being administratively prevented from promotion consideration is erroneous and unjust. 3. The applicant provides copies of his: * 29 January 2014, Request for Exception to Policy * 29 January 2014, memorandum of Support from the Chief, Veterinary Corps * Military Personnel (MILPER) Message Number 11-36221, dated November 2011 * 26 February 2014, Request for Exception to Policy from the Director, Office of Personnel Management Directorate * five pages of email CONSIDERATION OF EVIDENCE: 1. On 1 December 2011, the applicant, a Veterinary Corps (VC) major, was ordered to active duty operational support under the provision of Section 12301 (D), Title 10 United States Code (USC) from his position as a U.S. Army Reserve (USAR) Control Group (Reinforcement) for the period of 255 days. 2. On 6 May 2013, he was ordered to active duty in an Active Guard/Reserve status for 3 years effective 8 July 2013. He was assigned to Company A, 187th Medical Battalion, Fort Sam Houston, TX, with duty at RAND Arroyo Fellowship, Santa Monica, CA. By accepting the fellowship he incurred a 4 year AGR service obligation. 3. On 29 January 2014, the applicant’s request for an exception to policy to allow him to be boarded for promotion was favorably staffed through OTSG and HRC. This request was favorably indorsed by the Chief, Veterinary Corps. 4. On 9 April 2014, the applicant was released from assignment to the RAND Arroyo Fellowship, Santa Monica, CA, and transferred to the Department of Defense Veterinary Service Activity, Falls Church, VA, effective 25 August 2014. 5. Upon the recommendation of the DA G-1, the applicant applied to the ABCMR requesting special selection board (SSB) consideration for promotion to LTC in a non-AGR competitive category. 6. Due to the unusual nature of the applicant's request advisory opinions were requested to determine potential for an SSB and, if an SSB was warranted, and which component criteria would be appropriate. 7. In a 20 May 2015 advisory opinion from the Chief, Officer Promotion Management U.S. Army Human Resources Command, Fort Knox, it was stated: a. The applicant's assertion that he was not considered for promotion to LTC by any FY14 promotion board is correct. b. In November 2011, MILPER Message 11-362, announced the FY13/2014 Arroyo Center Fellowship. The applicant was eligible to apply for the fellowship with the stipulation that if recommended, he would submit an application to the AGR Program to complete the required one-year fellowship and three-year active duty service obligation upon completion of the fellowship. c. In June 2012 the applicant was considered by the FY14 Army Congressional Fellowship Board and was recommended to attend the RAND Arroyo Fellowship. His acceptance of the Fellowship required him to enter the AGR Program, which he did on 8 July 2013 as a Veterinary Corps officer. d. On 5 December 2013, MILPER Message 13-353, announced the FY14 LTC PSB that was scheduled to convene on 3 February 2014. The applicant's date of rank placed him in the zone of consideration. However, the applicant was removed from consideration on 8 January 2014 because; (1) Allowing him to be considered on the FY14 LTC AMEDD PSB would have ended in a legally objectionable board result due to considering him in the AGR competitive category when there are no VC positions in the AGR Program. (2) The applicant was accessed into the AGR Program without accounting for his need to hold a VC position. If granted an SSB for the FY14 LTC AMEDD PSB he could not be recommended for promotion because there are no selection objectives for VC officers in the AGR Program. This would have resulted in him being passed over for promotion. e. The Director of Military Personnel Management indicated they were looking into a solution for the applicant. They were not able to provide any information prior to the suspense date for this advisory opinion. 8. A 16 September 2015 advisory opinion was obtained from the Director of Military Personnel Management, Office of the Deputy Chief Of Staff, G-1. It stated: a. The applicant needs assignment in an Army Reserve promotion competitive category for promotion consideration to LTC. b. The applicant, an AGR VC officer, is requesting referral to an SSB because he was not included in the FY14 and FY15 LTC AMEDD PSBs. The applicant's date of rank placed him in the primary zone of consideration for FY14, but he was not considered because there is no AGR VC competitive category. The applicant's situation is predicated by his application and acceptance into the RAND Arroyo Center fellowship for FY13/14. Upon acceptance, the applicant was transferred from the Selected Reserve to an AGR status. c. Both OTSG and the Director, Officer Personnel Management Directorate, HRC, favorably endorse his request of an exception to policy for referral to an SSB against a non-AGR VC competitive category for promotion to LTC and if selected, promotion in his current AGR status. d. It was recommended that a request for an amendment to the ASA (M&RA) memorandum establishing competitive categories within the RC AMEDD to specify AGR VC officers will compete in the USAR Non-AGR VC promotion competitive category. e. Upon approval, the applicant should be granted an SSB for promotion consideration to LTC but return to a Selected Reserve status upon completion of his AGR tour. f. A 30 March 2006 policy memorandum from the Deputy Chief of Staff, G-1, Chief, Army Reserve, and Director, Army National Guard, subject: Three New Competitive Categories for Reserve Component (RC) AMEDD Officers, was provided with the advisory opinion. 9. The 30 March 2006 memorandum noted above states: a. Title 10, U.S. Code, Section 14005, was amended to establish three separate competitive categories with each of the six existing RC AMEDD competitive categories. A total of eighteen RC AMEDD competitive categories will be established. b. Following the May 2006 Colonel AMEDD board, mandatory promotion boards convened under the provisions of Title 10, U.S. Code, Section 14101, will consider RC AMEDD officers according to their AMEDD corps and their affiliation as an AGR, RC Non-AGR, or ARNGUS officer. The eighteen resulting competitive categories will enable the RC to select and promote AMEDD officers based on specific needs of the Army and will improve ability to manage officers to force structure requirements. It will also align AMEDD officer competitive categories with the three separate categories that have been used for Army RC Promotion List officers. c. In accordance with Title 10, U.S. Code, Sections 14305 and 14307, the number of officers selected for promotion by a mandatory promotion board should be closely related to the number of officers needed in a particular competitive category and grade to satisfy the RC force structure requirements. DISCUSSION AND CONCLUSIONS: 1. The applicant was ordered to active duty in an AGR status to accept the RAND Arroyo Fellowship, which required a 4 year active service obligation. 2. There is no true competitive category for AGR VC officers because there are no VC specific positions in the AGR Program. The applicant's only option would have been not to accept the fellowship and return to a Selected Reserve position for promotion consideration. This situation creates an inequitable promotion consideration which penalizes any VC officer who would be willing to accept a RAND Fellowship with the incurrence of an AGR service obligation. 3. No policy or regulation can be written to cover every situation and hence making an exception to policy is an accepted practice. This is such a case where the policy does not meet the situation and an exception to policy is warranted. 4. It would be appropriate to grant the applicant an exception to policy and direct that he be referred to an SSB for promotion consideration to LTC under the FY14 Non-AGR criteria. If selected for promotion, the applicant should be promoted with the proper date of rank and effective date but with the provision that he return to a Selected Reserve status upon completion of his AGR tour. BOARD VOTE: ___x____ ___x____ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was 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 granting the applicant an exception to policy and directing that he be referred to an SSB for consideration for promotion to LTC under the FY14 Non-AGR criteria. 2. If selected for promotion, the applicant should be promoted with the appropriate date and effective date, but with the provision that he return to a Selected Reserve status upon completion of his AGR tour. If not selected, he should be advised of that decision. _________x__________________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20150004069 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004069 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1