IN THE CASE OF: BOARD DATE: 18 October 2016 DOCKET NUMBER: AR20150010770 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ____x___ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 18 October 2016 DOCKET NUMBER: AR20150010770 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _____________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. IN THE CASE OF: BOARD DATE: 18 October 2016 DOCKET NUMBER: AR20150010770 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, in effect, retroactive promotion to lieutenant colonel (LTC) in the Kansas Army National Guard (KSARNG), prior to the date of his separation from military service. 2. The applicant states: * at the time of his discharge, he had his promotion packet in for LTC * he was discharged prior to the Kansas State Selection Board and KSARNG does its own selection board prior to the Headquarters, Department of the Army (HQDA) Selection Board * he would have been selected for promotion by HQDA * he is eligible for promotion under the authority of Title 10, U.S. Code (USC), section 1372 * he understands a retroactive promotion will not affect his retired pay 3. The applicant provides: * a self-authored memorandum for record (MFR), addressed to "Whom This May Concern," dated 2 October 2013 * a memorandum from the U.S. Army Physical Disability Agency (USAPDA), Arlington, VA, dated 14 November 2013 * Orders D318-39, issued by the USAPDA on 14 November 2013 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. Following prior enlisted service in the KSARNG, the applicant was appointed as a Reserve commissioned officer of the Army on 13 May 1995. 3. He served in a variety of assignments, was ordered to active duty in support of contingency operations on two different occasions, and was promoted to major (MAJ) on 23 January 2007. 4. His record contains the following documents: a. DA Form 1059 (Service School Academic Evaluation Report), dated 28 April 2000, which shows he completed the Ordnance Officer Advanced Course. b. DA Form 268 (Report to Suspend Favorable Personnel Actins (Flag)), dated 30 January 2012, which shows a flag was initiated against him for his failure to achieve a passing score on the Army Physical Fitness Test. 5. A medical evaluation board (MEB) was convened on 1 March 2013, at Fort Carson, Colorado, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB determined the applicant was medically unacceptable due to degenerative disc disease of lumbar spine: s/p laminectomy and interbody fusion. The MEB also considered additional diagnoses and found them to be medically acceptable, including obstructive sleep apnea. 6. The MEB recommended the applicant's referral to a physical evaluation board (PEB). The applicant was counseled and agreed with the board's findings and recommendation on 6 March 2013. 7. An informal PEB was convened at the National Capital Region on 24 September 2013. The PEB found the applicant's condition prevented him from performing his required duties and determined he was physically unfit due to degenerative disc disease of lumbar spine with the onset occurring in April 2009. The PEB recommended the applicant be rated at 40% disabled with a permanent disability retirement. 8. The applicant concurred with the PEB's findings and recommendation, waived his right to a formal hearing, and did not request reconsideration of his Department of Veterans Affairs (VA) ratings on 30 September 2013. On 2 December 2013, the USAPDA approved the PEB's findings. 9. Orders D318-39, issued by USAPDA, Arlington, VA, on 14 November 2013, released him from duty because of physical disability incurred while entitled to basic pay under the authority of Title 10, USC, section 1204. He was retired in the rank of MAJ by reason of permanent disability, with 40% disability, effective 19 December 2013. 10. His NGB Form 22 (National Guard Bureau – Report of Separation and Record of Service) confirms he was honorably retired on 19 December 2013, by reason of medical disqualification for further military service, after completing 25 years, 11 months, and 26 days of total service for pay. 11. He provides a self-authored MFR to "Whom This May Concern," dated 2 October 2013, wherein he states he had no corrective actions during his military career or any actions pending, and he requests promotion to LTC. He further states that: * the Director of Personnel, KSARNG stated the State of Kansas does a selection board of all eligible officers * then all eligible officers are ranked and the top officers are put on a promotion list to fill available slots in the KSARNG pending an HQDA selection board * Kansas does not do an Order of Merit List (OML); however, he was asked to submit an OML with his MFR * his injury occurred on active duty and he would like to be considered for promotion to LTC under active duty regulations * the promotion will have no effect on his retired pay; he provides Title 10, USC, section 1372 as the authority 12. An advisory opinion was obtained on 28 December 2015 from the Deputy Chief, Personal Policy Division, National Guard Bureau (NGB), Arlington, VA. This official recommended disapproval and opined the following: a. In summary, the applicant requests a records review for promotion to LTC under the authority of 10 USC 1372. b. The Soldier received notice of disability retirement under 10 USC section 1204 on 14 November 2013, at which time he had also previously submitted documentation for the Kansas State Selection Board. The Soldier's effective date of retirement was 19 December 2013. c. [Applicant] believes he is eligible for promotion under the authority of 10 USC 1372, which states any member of the armed forces who is retired for physical disability under section 1204 is entitled to the permanent grade he would have been promoted to, had it not been for the physical disability for which he is retired. The Soldier believes that, had he not been retired, he would have been boarded under the Kansas State Selection Board and the FY 2014 HQDA Board and selected for promotion to LTC. d. The officer was also considered for promotion to LTC under the HQDA Board in both FY 2012 and FY 2013. Both years, the officer was determined ineligible because he failed to meet the military education requirements for promotion to LTC. He was approved by KSARNG for selective continuation in 2013. e. Currently, no record of an officer advance course exists in this Soldier's Official Military Personnel File (OMPF). Under Army Regulation 135-155 (Army National Guard and U.S. Army Reserve - Promotion of Commissioned Officers and Warrant Officers Other than General Officers), a Soldier in the rank of MAJ who did not complete an officer advance course [sic, Intermediate-Level Education (ILE)], is not eligible for promotion to LTC. The officer was ineligible to compete for promotion, either under the Kansas State Selection Board or the FY 2014 DA Board, because he failed to meet the military education requirements. f. This action was coordinated with the NGB DA Boards Selection on 4 December 2014 and with concurrence on the recommendation from the KSARNG. 13. The applicant was provided a copy of the advisory opinion and responded on or about 22 January 2016. He provided the following in response with: * a three-page, self-authored statement * a letter from the Chief, Student Operations, Department of Distance Education, U.S. Army Command and General Staff College (CGSC), Fort Leavenworth, KS, dated 21 January 2015 * a memorandum from the applicant to the Director, Department of Distance Education, dated 27 July 2012 * an email string from the applicant to his chain of command, dated 3-5 April 2013 * an email string from the applicant to his chain of command, dated 4 September 2013 * an email excerpt from the applicant to his rater, undated * a discharge email, dated 19 December 2013 a. He states that his understanding of the regulation under 10 USC 1372 is that had he been afforded the opportunity to attend a school while under medical status, he would have fulfilled his education requirement for promotion to LTC. b. He called the point of contact on the advisory opinion to ask the following questions: * "I asked if I need to complete all Phases of ILE to be considered for promotion to LTC" * "I was enrolled in ILE during deployment 08-09, but due to medical problems on deployment and upon returning, I did not finish Distance Learning ILE phase II or III" * "I was reenrolled in ILE in September 2012 with 18 months to complete the course" c. He called and talked to the Chief of Student Operations, CGSC to request a letter listing the status of his completed courses from Phase I and II. The letter, dated 21 January 2015, stated he completed all of Phase I and 34 of the 41 assignments in Phase II. [The CGSC Officer's Course is a three-phase course.] d. He states Army Regulation 135-155 outlines the requirements for military education for promotion. Table 2-2 lists the requirement for promotion from MAJ to LTC requires 50% of the CGSC Officer's Course be completed in order to qualify for selection. He states he has met the requirements under this policy and is therefore, asking for promotion to LTC under 10 USC 1372. e. He addresses the circumstances for not finishing ILE after his deployment. During his deployment he had a simple surgery that resulted in several complications. He was advised to get checked out for sleep apnea, back problems and thyroid concerns upon his return from Iraq at the demobilization site at Fort McCoy. He was diagnosed for sleep apnea and in October 2009, he was referred to an MEB. He was unable to apply to attend the two week phase III of ILE because of the ongoing MEB process. f. At the time, he believed he would be out of the ARNG within the year. He was referred for back surgery and a line of duty (LOD) investigation was ongoing. After the LOD was approved in February 2012, a month before his surgery, he was flagged by his unit for no APFT. He had back surgery on 16 March 2012. He was told the MEB process could take one year after surgery. His rater suggested he restart the Distance ILE and try to complete it before the LTC promotion board in 2013. g. The IDES (Integrated Disability Evaluation System) process took a long time and due to this he was unable to attend the traditional ILE phase III. This process delayed and neglected him an opportunity to fulfill his education requirement. He believes that if he had not been on medical hold he would have completed his educational requirement to be promoted to LTC. h. He provides a letter from Chief, Student Operations, CGSC, dated 21 January 2015, which provides a status of his completed work in the CGSC Officer's Course, a three phase course. The applicant had competed all Phase I assignments and 34 of the 41 Phase II assignments. Phase III consists of 15 assignments. i. He provides a memorandum he submitted to the Director, Department of Distance Education, dated 27 July 2012, requesting reenrollment into ILE AY10-11. The reason he states are: * he was unable to complete ILE due to medical issues and those have now been addressed * he deployed to Iraq: December 2003-April 2005; June 2008-November 2009 * he completed Phase I during deployment and most of Phase II * he is asking to be enrolled in AY10-11 because he will be eligible for promotion in the spring of 2013 j. He provides several emails that he discusses a PT flag that was initiated against him with his former commander and another in which an invalid entry needed to be removed from his officer evaluation report during the reporting period with his current chain of command. k. He provides an email excerpt to his commander that discusses the status of his medical evaluation process and help in getting the process energized. l. He provides an email from his command that discusses his separation orders and retirement date. 14. A review of the applicant's eligibility and consideration for promotion to LTC was conducted by Chief, HQDA Officer Promotions Branch, U.S. Army Human Resources Command (HRC), who confirmed the applicant was considered by the FY12 and FY13 promotion boards to LTC. He further stated that the applicant was not considered by the FY14 promotion board due to the fact that he had an approved retirement date within 90 days after the convening date of the board and was removed based on applicable laws and regulations. 15. There is no DA Form 1059 in his military record that indicates he completed or partially completed his military educational requirement (ILE/CGSOC) for promotion to LTC. There is no evidence in his military record nor does he provide any that he requested a waiver for completion of the military education requirement based upon any hardship or extenuating circumstances. REFERENCES: 1. Title 10, U.S. Code, section 1372, states that unless entitled to a higher retired grade under some other provision of law, any member of an Armed Force who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the Temporary Disability Retired List (TDRL) under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following: a. the grade or rank in which he is serving on the date when his name is placed on the TDRL or, if his name was not carried on that list, on the date when he is retired; b. the highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the Armed Force from which he is retired; c. the permanent Regular or Reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination; or d. the temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired, if eligibility for that promotion was required to be based on cumulative years of service or years of service in grade and the disability was discovered as a result of a physical examination. 2. Title 10, U.S. Code, section 619, states the Secretary of the military department concerned may, by regulation, preclude from consideration by a selection board by which he would otherwise be eligible to be considered, an officer who has an established separation date that is within 90 days after the date the board is convened. 3. Army Regulation 135-155 provides policy and procedures used for selecting and promoting commissioned officers of the ARNG and of commissioned and warrant officers of the USAR. a. Paragraph 2-8, military educational requirements states to qualify for selection, commissioned officers must complete the military educational requirements in table 2-2 not later that the day before the selection board convene date. b. The officer must also be enrolled and participating satisfactorily at the time of consideration. Officers enrolled in an authorized resident command and staff college course at the time are considered for promotion to LTC will be granted equivalent credit for having completed 50 percent of the CGSCOC. c. Acceptance of constructive credit or equivalent credit for filling academic requirement is subject to approval of the commandant of the service school having course proponency. d. Table 2-2 (Military educational requirements commissioned officers, other than commissioned warrant officers grade) lists the requirement for promotion from MAJ to LTC as 50% of the CGSOC be completed in order to qualify for selection. 4. HQDA, Deputy Chief of Staff, G-1, DAPE-MPO-S, 24 May 2010, subject: Reserve Component (RC) Officer Promotion Military Education (MILED) Policy. This policy provides that the Chief, DA Promotions Branch, HRC is the approval authority for all requests for waivers for non-statutory promotions requirements. It states, in pertinent parts, the guidance is: a. In order to be granted a MILED waiver for promotion, CPTs and MAJs being considered in or above the zone by a mandatory promotion selection board to the next higher grade must meet the following criteria (emphasis added): * Served 12 or more cumulative months (need not be consecutively served) of documented OCONUS deployment time within 36 months preceding the convening date of their mandatory promotion board with deployment orders and; * MAJs must have completed the first two phases of ILE-CC [Intermediate Level Education Common Core] with proof of completion (emphasis added) b. The MILED requirement is completion of 50% of the CGSOC or completion of ILE-CC. Additionally, in accordance with Army Regulation 135-155, paragraph 2-8(a)1, officers enrolled in the resident CGSOC may be granted equivalent credit for having completed 50% of CGSOC. In 2006, CGSOC was replaced by ILE. For the purpose of promotion consideration only, officers enrolled in Resident ILE or a Resident ILE-CC satellite course, at the time they are considered for promotion to LTC, will be granted equivalent credit for having completed ILE-CC without waiver. c. If you are currently identified for promotion eligibility and have not meet the above stated MILED requirement, you may be eligible to apply for a waiver for completion of the MILED. In situations where the officer applying for a MILED waiver does not meet the criteria set forth in the policy, the Chief, DA Promotion Branch may grant a MILED waiver based upon extenuating circumstances. The first COL or BDE level equivalent commander in the officer's chain of command must support and endorse the request. Waiver request must demonstrate hardship or other justification of an exceptional nature meriting favorable consideration. 5. National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions) prescribes the policy, criteria, and procedures governing the separation of commissioned officers of the ARNG. a. Paragraph 8-1 states promotion in the ARNG is a function of the State. As in original appointments, a commissioned officer promoted by State authorities has a State status in the higher grade under which to function. However, to be extended Federal recognition in the higher grade, the officer must have satisfied the requirement for promotion. b. Paragraph 8-7 states to be considered for Federal recognition and subsequent Reserve of the Army promotion following State promotion to fill a unit vacancy, an officer must be in an active status, be medically fit, meet the height and weight standards, have completed the minimum years of promotion service, have completed the minimum civilian and military education, and have passed the physical fitness test. 6. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. It is not an investigative agency. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant's request for retroactive promotion to LTC in the KSARNG, prior to the date of his separation from military service, was carefully considered. 2. His contention that he was unable to complete ILE due to his medical issues, and had he completed ILE, he would have been promoted to LTC is purely speculative. His record does not contain a DA Form 1059 nor did he ask for a MILED waiver based on any hardship or extenuating circumstances. 3. The Chief, DA Promotions, HRC confirmed he was not in a promotable status prior to his separation from the Army. He was considered and not selected for promotion to LTC by the FY12 and FY13 selection boards, and was not considered by the FY14 selection board due to the fact that he had an approved retirement date that was within 90 days after the date the board was convened and was removed from consideration based on law. 4. In addition, he was processed through the IDES process and was retired in the rank of MAJ by reason of permanent disability and placed on the Retired Reserve List on 19 December 2013. 5. By law, any member of the Armed Forces who is retired for physical disability is entitled to the grade equivalent to the permanent regular grade to which he/she would have been promoted had it not been for the physical disability for which he/she is retired. Soldiers on a promotion list at the time of retirement for disability will be retired for disability at the promotion list grade. The applicant was not on a promotion list prior to his placement on the Retired List. 6. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. There is a presumption of regularity in the conduct of government affairs. There is no evidence of error or injustice in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010770 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010770 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2