BOARD DATE: 3 April 2018 DOCKET NUMBER: AR20160006697 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : X :X :X DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 3 April 2018 DOCKET NUMBER: AR20160006697 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 correction of his date of rank (DOR) to major (MAJ)/O-4, correction to his mandatory removal date (MRD), and reinstatement in the Alabama Army National Guard (ALARNG) in order to appear before a warrant officer (WO) selection board. In addition, he requests a personal hearing before the Board. 2. The applicant states his DOR to MAJ and his MRD were both wrong in the Army database. After relying on that erroneous information, he and his command unsuccessfully attempted to revert him from MAJ to chief warrant officer two (CW2) to fill a vacant slot in the ALARNG. Database errors notwithstanding, the National Guard Bureau (NGB) disregarded the Secretary of the Army's action to selectively retain him after he was twice non-selected for promotion to lieutenant colonel (LTC). The NGB improperly applied law and regulation to bar his reversion to CW2 just days before the board was set to accept him as a warrant officer. 3. In a separate self-authored statement, the applicant states: a. He was in the 1133rd Medical Company (Air Ambulance) for the first half of his military career. As a lieutenant, he became the flight platoon leader then commanded a sister Ground Ambulance Company in the medical battalion for three years before returning to the 1133rd Medical Company. During that time, he attended law school and began practicing law as a civilian. b. When the 1133rd Medical Company was shut down in 2000, he entered the Individual Ready Reserve (IRR) with the intent to return to the ALARNG when medical evacuation (MEDEVAC) returned. He was activated from the IRR in 2007 and rejoined the ALARNG in late 2008 as the evacuation coordinator in the 161st Multifunctional Medical Battalion (MMB). He served in that position until the current situation unfolded. c. In 2010, he completed the UH-60 transition course and began flying with the 131st Aviation Battalion in Mobile as an additional assignment to his position as evacuation coordinator for the 161st MMB. In 2012, he approached the 131st Aviation Battalion's Commander (with the blessing of State Aviation Commander COL B_ and the Flight Facility Commander COL M_) to request a letter of acceptance into the aviation battalion, understanding that he would be required to revert to a WO if accepted. The battalion commander informed him that he would be accepted upon progressing from readiness level (RL) as an Aviator 3 to RL 1. They altogether specifically discussed that his MRD of March 2017 put him under no immediate pressure to transfer him into the 131st Aviation Battalion until his RL progression. COL B_ and COL M_ were in favor of his immediate acceptance into the 131st Aviation Battalion and assured him the transfer and reversion would eventually happen well before his MRD of March 2017. d. At that time, he also recognized that he needed to complete intermediate level education (ILE) to compete for promotion to LTC. As a practicing attorney (like most M-day Soldiers with a full-time job), he had a limited amount of time to devote to either ILE or the pursuit of RL 1 completely through additional flight training periods (AFTP) (no flying for him during drill or annual training (AT) with the 161st MMB). He decided that his goal was to continue his career as an aviator. He informed both his present chain of command and the aviation chain of command of his plan and received their full support. e. He then dedicated his efforts to achieving RL 1 and reverting to WO instead of targeting completion of ILE to compete for LTC. All of his flying has been in an AFTP status instead of drill or AT status. His status as an additional aviator, combined with budget constraints, led to challenges in providing him with adequate flight time. In early 2015, he achieved RL 2 and was progressing rapidly toward RL 1. f. The Aviation Group Commander, COL M_, decided to accept him into the aviation battalion in June of 2015. They specifically discussed the fact that his MRD was listed as March 2017, and that they preferred to get him into the aviation battalion then as opposed to waiting until the last minute. g. He provided all of the required items to the WO recruiters and was set to go before the WO board on 20 August 2015. Highlights were: 300 Army Physical Fitness Test (APFT) score, 49 years old, law degree, Blackhawk qualified and current, and 67J (Aeromedical Evacuation Officer) qualified with many (if not all) 67J slots sitting vacant in the new Medevac Detachment. This packet included signed oaths of office, dated 20 August 2015. On 5 August 2015, WO recruiter CW2 C_ I_ called him (and sent a copy to him) to discuss a letter he had just received stating that he was to be discharged on 30 October 2015 for being a second time pass over by the MAJ to LTC board (he was not even aware that he had been considered by a second board until that letter). h. CW2 I_ explained that, given the prohibition of reverting to WO within 90 days of his separation date (NGR 600-101 (Warrant Officers Federal Recognition and Related Personnel Actions), 2-14), he was not allowed to attend the 20 August 2015 board, and his reversion process was halted. i. Through the fall of 2015, he worked with the State Military Personnel Officer (MILPO) COL C_ M_ to solve his situation and revert to CW2 to join the aviation battalion. COL M_ was informed by the NGB that if they would resend his packet and a waiver request, NGB would approve it. All requested was provided, but the NGB returned it with no action taken, and COL M_ could never get an explanation as to why the NGB changed its mind. j. He spoke with CW3 R_ in the policy division at NGB, who informed him that he may be exactly correct in his position regarding the regulations he had briefed him on, but there was nothing that could be done about his case at that point. k. He filed a Congressional inquiry and an inspector general (IG) complaint. He received support for his position, but no action from either; however, his Congressional representative did note that he would support him in the correction of his military record appeal as suggested by Major General S_. 3. The applicant provides: * Exhibit 1 – letter of acceptance, dated 24 June 2015 * Exhibit 2 – memorandum from the US. Army Human Resources Command (HRC), dated 9 July 2015 * Exhibit 3 – appointment documents * Exhibit 4 – memorandum from the ALARNG, dated 28 July 2015 * Exhibit 5 – memorandum from NGB, dated 30 November 2015 * Exhibit 6 – email communication with ARNG WO policy office * Exhibit 7 – Congressional communication * Exhibit 8 – HRC personnel record data * Exhibit 9 – acceptance of selective continuation, dated 22 January 2016 * Exhibit 10 – retirement orders, dated 2 February 2016 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the ALARNG on 29 January 1985. He was released from the ALARNG and transferred to U.S. Army Reserve (USAR) Control Group (Reserve Officers’ Training Corps (ROTC)) on 9 June 1987. 2. The applicant was appointed as a Reserve commissioned officer of the Army on 10 June 1987. He subsequently accepted an appointment as a commissioned officer with the ALARNG on 11 June 1987. 3. Orders 063-018, issued by the ALARNG on 4 March 2002, separated the applicant from the ALARNG and transferred him to the USAR Control Group (Reinforcement) effective 17 February 2002. 4. Orders B-03-602376, issued by HRC – St. Louis on 23 March 2006, promoted the applicant to MAJ with a DOR and effective date of 10 February 2005. The applicant, at the time, was assigned to the USAR Control Group (Reinforcement). 5. Orders 311-672, issued by the ALARNG on 6 November 2008, appointed the applicant in the ALARNG effective 3 November 2008. He was advised that he would not be paid as a MAJ until Federal recognition was confirmed. 6. Orders C-12-820938, issued by HRC – St. Louis on 4 December 2008, released the applicant from USAR Control Group (Reinforcement) and reassigned him to the ALARNG on 3 November 2008. 7. Special Orders Number 10 AR, issued by the NGB on 13 January 2009, extended Federal recognition to the applicant's appointment in the ALARNG, effective 3 November 2008. These special orders show his DOR to MAJ as 10 February 2005. 8. The applicant was non-selected by a DA promotion selection board (PSB) that convened on or about 2 February 2015 to consider Reserve Component Army Medical Department (AMEDD) MAJs for promotion to LTC. Officers with a DOR to MAJ of 28 February 2009 and earlier were considered above the zone. The applicant was not selected for promotion by this PSB; this non-selection represented his second promotion non-selection. However, this same board selected him for selective continuation (SELCON) for military service. 9. An ALARNG memorandum dated 28 July 2015, subject: Withdrawal of Federal Recognition, denied the applicant's SELCON and notified him that: a. He was non-selected for a second time by a Department of the Army (DA) Mandatory Selection Board. b. IAW Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 4-33, a MAJ (who is a DA two-time non-select) will be separated on the later date of the first day of the month after the month in which the officer completes 20 years of commissioned service, or the first day of the seventh month after the approval date of the promotion board report that non-selected the officer for the second time. c. Records indicated he completed 20 years of commissioned service on 26 March 2009. However, he was selected by the Fiscal Year 2015 (FY15) DA Mandatory Selection Board for Selective Continuation (SELCON) on the Reserve Active Status List (RASL). SELCON would allow him to continue until 24 years commissioned service (26 March 2013); however, he had already exceeded 24 years of service allowed by law (Title 10, U.S. Code, section 14701). lAW Army Regulation 135-155 his Federal recognition would be withdrawn no later than (NLT) 30 October 2015. Further guidance is outlined in Army Regulation 135-155, paragraph 4-34 and the Memorandum, SAMR, 30 March 2006, Subject: Standardization of the Length of Continuation for Reserve Component Officers Selectively Continued. d. He should be extremely proud of his career and accomplishments as a member of the Armed Forces. On behalf of a grateful Nation and the Army National Guard, the writer wished him the best in all future endeavors. 10. It appears the applicant requested a waiver to remain in the military and become a WO. The NGB notified him on 30 November 2015 that his request for waiver was returned without action. IAW Title 10, U.S. Code, section 14701, he exceeded his MRD due to a second non-selection for promotion rendering him ineligible for continued service. The NGB recommended his state undertake immediate action to separate him. 11. Orders 033-517, issued by the ALARNG on 2 February 2016, honorably released the applicant from the ARNG and transferred him to USAR Control Group (Retired Reserve) effective 1 February 2016. His NGB Form 22 (National Guard Report of Separation and Record of Service) confirms he was retired on 1 February 2016. His NGB Form 22 shows in: * Block 10d (Total Service for Pay) – "32 00 26," meaning he was credited with completing 32 years and 26 days of total service for pay * Block 10e (Total Service for Retired Pay) – "26 00 00," meaning he was credited with completing 26 years of total service for retired pay 12. The Integrated Total Army Personnel Database (ITAPDB) shows the applicant was assigned to the USAR Control Group (Retired Reserve). The ITAPDB shows at the time of his separation his: * Date of commissioned service was 27 March 1989 * DOR to MAJ was 3 November 2008 * MRD was 1 April 2017 13. The applicant provides: a. A letter of acceptance from the Commander, 122nd Troop Support Command, ALARNG, dated 24 June 2015. The letter shows the commander was willing to accept the applicant to serve in his unit if he received Federal recognition and was appointed as a WO in the ALARNG. b. An HRC memorandum, dated 9 July 2015, subject: Promotion Lists for FY15, LTC, Army Promotion List (APL), Army Reserve Active Guard Reserve (AR AGR), Army Reserve Non-Active Guard Reserve (AR Non-AGR) and Army National Guard of the United States (ARNGUS) Competitive Categories, Promotion Selection Boards. The applicant served in the MS Corps; therefore, this HRC memorandum does not apply to him. c. An NGB Form 337 (Oaths of Office) (not authenticated by the ALARNG), which shows the applicant attempted to accept a USAR WO commission on 20 August 2015. d. An email communication that shows the applicant, members of his chain of command, and the WO branch, diligently researched and worked concerns in an effort to retain him in the service and appoint him as a WO. The results show public law and Army regulatory guidance prevented him from accepting a WO appointment and denied his eligibility to remain in the service. e. Congressional communications that show his representative was informed by Major General S_ of the ALARNG on 6 January 2016 and 26 January 2016 of the following: (1) 6 January 2016 – IAW with the Reserve Personnel Management Act, October 1996, two time non-select MAJs are required to be separated the first day of the month after the month completing his 20 years of commissioned service. The applicant was beyond 20 years when he was non-selected the second time, which resulted in the ALARNG separating him from service. Furthermore, IAW NGR 600-101, paragraph 2-14(f)(4), he cannot transition to a WO due to being twice non-selected for promotion and having over 20 years of service. (2) 26 January 2016 - We have researched the circumstances surrounding his case and have concluded that the references and regulations stated in original response dated 6 January 2016 are correct. There are several errors in his database file one, his DOR was wrong, which caused his delay in meeting the DA Mandatory Board by three (3) years. Actually, he should have been separated in 2013. Additionally, his MRD was miscalculated based on his commissioned service date, which should have been May 2015, 28 years of commissioned service. These errors allowed him to serve beyond what is normally allowed. The applicant will be separated on 1 February 2016 by operation of law. f. HRC record data that shows his initial date of commission as 27 March 1989, and his DOR to MAJ as 3 November 2008. These dates do not match his official documents, which show he first accepted a commission on 10 June 1987, and he was promoted to MAJ on 10 February 2005. g. A self-authored letter accepting his recommendation for SELCON on 22 January 2016. However, the ALARNG notified him on 28 July 2015 that he was not eligible for SELCON because he already exceed the maximum years of commissioned service. 14. In the processing of this case an advisory opinion was obtained on 27 October 2017 from the Chief, Personnel Policy Division, NGB. The advisory official noted and opined: a. The Soldier states both his DOR to MAJ and his MRD date are incorrect in the Army’s database. He contends the ALARNG applied Army regulation improperly, which subsequently caused his two time non-selection for promotion to LTC and prevented his reversion to CW2. b. The Soldier was appointed as a 2LT on 10 June 1987. The Soldier has periods of service in the ALARNG and the USAR as reflected in the enclosed Army National Guard Retirement Points History Statement. The ALARNG reports the Soldier’s date of rank for MAJ was incorrectly entered (3 November 2008) during his transfer from the USAR to the ALARNG. For this reason the Soldier avoided being considered by the FY10, FY11, FY12, and FY13 DA Selection Boards. Additionally, the Soldier states he recognized the need to complete ILE for promotion to LTC, however, he did not have sufficient time to devote to ILE and he decided to continue his career as an aviator. c. The Soldier was non-selected at the rank of MAJ by the FY14 LTC AMEDD Board because he was not educationally qualified. The Soldier was notified of his second non-selection by the FY15 by the DA Mandatory Selection Board for LTC however he was selected for continuation by the DA Mandatory Selection Board for SELCON on the Reserve Active Status List (RASL) for FY15. Notwithstanding that selection, the Soldier had over 24 years of service at the time of his selection and was notified of the withdrawal of his Federal recognition IAW Army Regulation 135-155. d. Title 10, U.S. Code, section 14701, explains Reserve officers in grades O3 through O6 who are to be discharged due to failing of selection for promotion may be retained on the RASL if selected for continuation. The length limits of such continuation for Soldiers with the rank of MAJ are not to exceed 24 years of service. The applicant's SELCON was made in error. At the time of his SELCON he had over 24 years of service. There is no provision in statute or policy to retain an officer who is twice non-selected in these cases, except those officers who have reached at least 18 years of service; at that point, they must be retained for 2 years to qualify for 20 years towards retirement. e. The administrative errors that occurred allowed the Soldier to serve beyond his actual MRD date of 30 October 2015. The Soldier was SELCON with greater than 24 years of commission service. Army Regulation 135-155 and NGR 600-101 explains that Soldiers who are two time non-selects by a DA promotion board are not eligible for Federal recognition, thus preventing the Soldier from becoming a WO. Therefore it is the recommendation of this office to deny the Soldier’s request. f. This advisory opinion was coordinated with the Army National Guard, Officer Policy Branch. g. The ALARNG concurs with this recommendation. 15. The applicant was provided a copy of this advisory opinion on 1 November 2017, for an opportunity to comment and/or submit a rebuttal. He did not respond. REFERENCES: 1. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Army Regulation 135-155 prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned WOs) of the ARNGUS and of commissioned and WOs of the USAR. a. Paragraph 4-29 provides non-selection by a promotion board is administratively final. b. Paragraph 4-30 provides a second non-selection is an who twice fails to be selected for promotion to the grade of CPT, MAJ, or LTC will be removed from active status (see para 4-33) unless subsequently placed on a promotion list, selected for continuation, or retained under any other provision of law. c. Paragraph 4-33 provides MAJs on the RASL who has failed of selection for promotion to LTC for the second time and whose name is not on a list of officers recommended for promotion to LTC, will be separated unless the officer has a remaining service obligation or can be credited with 18 or more but less than 20 years of qualifying service for retired pay. Separation will be on the later of the first day of the month after the month in which the officer completes 20 years of commissioned service, or the first day of the seventh month after the approval date of the promotion board report that non-selected the officer for the second time. USAR officers will be transferred to an inactive status if the Secretary of the Army determines that the officers have skills which are required to meet mobilization needs; to the Retired Reserve or discharged. d. Paragraph 4-34 prescribes the policy for SELCON. (1) An officer twice non- selected for promotion by a mandatory Reserve of the Army selection board must be removed within the prescribed time limits. However, subject to the needs of the Army, officers pending separation because of having twice failed to be selected for promotion to MAJ or LTC, may be selectively continued on the RASL in their present grade. The Secretary of the Army may direct a selective continuation board to consider officers for continuation when required by the needs of the Reserve of the Army. A selective continuation board must recommend the officers for continuation and the Secretary of the Army must approve the recommendation before officers may be continued. (2) Selectively continued officers, if otherwise eligible, will continue to be considered for promotion until separation. (3) Continuation for MAJ will normally be for 3 years from the approval date of the selective continuation board by which the officer is recommended for continuation. However, continuation may not extend beyond the date on which the officer completes 24 years of commissioned service as a MAJ. The Secretary of the Army may adjust the period of selective continuation. (4) An officer described in (1) above who has not been selected for continuation will be discharged, or if eligible and the officer requests, transferred to the Retired Reserve on the expiration of the continuation period established under paragraph (3) above, unless on or before that date one of the following has occurred: * The officer has been promoted or is on a list of officers recommended for promotion to the next higher grade * The officer has been selected again for continuation by a later selective continuation board * The officer is within 2 years of being eligible to retire under Title 10 U.S. Code, sections 3911 or 12732 * The officer has retired * The officer was retained under some other provision of law or regulation * The officer was involuntarily transferred to an inactive status because the Secretary of the Army determined that the officer had skills that were required to meet mobilization needs 3. Title 10, U.S. Code, section 14507(a) provides the MRD for any rank LTC and below is 28 years. Officers in the grade of LTC and below, who are not on a list of officers recommended for promotion to the next higher grade, shall be removed from the RASL on the first day of the month after the month in which the officer completes 28 years of commissioned service. The applicant reached 28 years of service on 10 June 2015; therefore his MRD would be 1 July 2015 (first day of the following month he reached 28 years of commissioned service) DISCUSSION: 1. The applicant requests correction of his DOR to MAJ and his MRD, and to allow him reinstatement in the ALARNG in order to appear before a WO selection board. He contends his DOR to MAJ and MRD were incorrect in the Army database, and this incorrect date caused him to lose eligibility to become a WO in the ALARANG after being a two-time non-select for promotion to LTC by a DA mandatory PSB. 2. A DA Form 71 shows the applicant was appointed as a Reserve commissioned officer of the Army on 10 June 1987, thus beginning his commissioned service. 3. The applicant received orders promoting him to MAJ with a DOR and effective date of 10 February 2005. 4. The governing regulation provides the MRD for a MAJ is on the first day of the month after the month in which the officer completes 28 years of commissioned service. ITAPDB listed his MRD as 1 April 2017, which is the first day of the month after 28 years based off of the 27 March 1989 commissioning date also shown in the ITAPDB. It appears his initial commissioning date was incorrectly listed at some point during his period of service. Therefore, his MRD should have reflected 1 July 2015; the first day of the month after he reached 28 years of commissioned service based on the date he accepted a Reserve commission, i.e., 10 June 1987 (approximately 2 years earlier than recorded). 5. The ITAPDB shows the applicant's DOR to MAJ as 3 November 2008. However, his official promotion orders to MAJ show his DOR as 10 February 2005 (approximately 3 1/2/ years earlier). It appears the applicant's DOR to MAJ was incorrectly changed at some point during his period of service. 6. The applicant was notified that he was not selected for promotion by the FY15 board, but was recommended for SELCON. 7. The applicant was not granted SELCON because he already exceeded the maximum 24 years of commissioned service allowed to MAJs approved for SELCON. He contends the incorrect DOR and MRD prevented him from accepting the SELCON and becoming a WO. Evidence of record confirms his initial commissioning date, his DOR to MAJ, and his MRD were incorrectly listed in the Army's database. Correcting these dates would have no effect on his record that would grant him eligibility to surpass maximum limit of 24 years of commissioned service allowed to MAJs twice non-selected established in law. 8. The applicant requested a waiver to remain in the service and become a WO. The NGB returned his request without action citing Title 10, U.S. Code, section 14701, that he exceeded his MRD due to a second non-selection for promotion rendering him ineligible for continued service. The NGB further recommended his state undertake immediate action to separate him. 9. The applicant was separated and transferred to the Retired Reserve on 1 February 2016. His NGB Form 22 shows he completed 32 years and 26 days of service. 10. An advisory opinion was obtained from the NGB in which the advisory official recommended disapproval of the applicant's request noting he was not educationally qualified for promotion and had already surpassed 24 years of commissioned service. The ALARNG concurred with the NGB's recommendation. 11. The applicant's OMPF contains official documentation that shows his correct DOR and initial commissioning date. The ITAPDB is an automated record of a Soldier's personnel management information in the form of data. The system is not maintained or updated subsequent to a Soldier's separation from active duty. 12. The applicant's request for a personal appearance hearing was carefully considered. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision at this time. BOARD DATE: 3 April 2018 DOCKET NUMBER: AR20160006697 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160006697 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006697 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2