BOARD DATE: 8 November 2016 DOCKET NUMBER: AR20160009547 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x_____ ___x_____ ___x_ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 8 November 2016 DOCKET NUMBER: AR20160009547 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army and Army National Guard records of the individual concerned be corrected by: a. reinstating him as a Reserve commissioned officer in the Army National Guard of the United States and the New York Army National Guard, effective 1 July 2016, in the rank of lieutenant colonel/pay grade O-5, with entitlement to all pay and allowances he is credited with (as outlined in paragraph c, below) and with a mandatory removal date of 30 August 2019; and b. correcting his Chronological Statement of Retirement Points to show for the period from 1 July 2016 through 30 November 2016, he was credited with the following points for a pro-rated/portion of a year – * Inactive Duty: 021 (ET: 1 point for each 4-hour rule of IDT at UTAs) * Extension Course: 000 * Membership: 006 (portion of a year; 153 days) * Active Duty: 000 * Qualifying for Retirement: To Be Determined (RYE: 2 July 2017) * Total Points: 027 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to adjustment of the mandatory removal date to 30 September 2019. ____________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. BOARD DATE: 8 November 2016 DOCKET NUMBER: AR20160009547 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 mandatory removal date (MRD) to 30 September 2019 (instead of 30 June 2016) and, as a result of the correction, reinstatement in the U.S. Army Reserve (USAR) in the rank of lieutenant colonel (LTC)/pay grade O-5. 2. The applicant states he was separated from the Army National Guard (ARNG) in July 2003 after being non-selected for promotion to major (MAJ)/pay grade O-4 by a second consecutive Army Reserve Components Promotion Selection Board (PSB). The reason for his non-selection was a result of the two PSBs not following the requirements set forth in the governing U.S. statute and Army regulation. a. The error was identified and his non-selection was reversed by a Special Selection Board (SSB) on 4 November 2005. The effective date of his promotion to MAJ was established as 19 July 2000 and he was assessed back into the New York ARNG (NYARNG) on 30 August 2006. b. On 20 May 2015, he found out that when he was separated from the NYARNG, he was erroneously transferred to the Individual Ready Reserve (IRR) (i.e., the USAR Control Group (Reinforcement)). He should not have been transferred to the IRR. Instead, Federal recognition should have been withdrawn and he should have been completely separated (discharged) from the USAR due to the two-time non-select for promotion. As a result of the error, he spent 38 months in the IRR, which was counted toward his total commissioned service and resulted in an MRD of 30 June 2016. c. He adds that he is currently serving as the Command Inspector General (IG), 42nd Infantry Division, NYARNG. A break in service (beginning 1 July 2016) would cause him to be removed from the IG position and it would take at least 6 months for him to be reappointed, or for another officer to be vetted by the Department of the Army IG to fill the position. d. The applicant requests a personal appearance before the Board. 3. The applicant provides copies of his promotion orders and four letters pertaining to his promotion. CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a Reserve commissioned officer, in the rank of second lieutenant (Engineer Corps), on 10 June 1988. 2. He was promoted to captain/pay grade O-3 on 19 July 1993. 3. On 26 July 2001, the Chief, Office of Promotions, U.S. Total Army Personnel Command, St. Louis, MO, notified the applicant that a Department of the Army Reserve Components PSB convened on 6 March 2001 to consider officers of his grade for promotion. He was considered; however, he was not among those selected by the PSB. As a result of this second non-selection, he was to be discharged not later than 1 January 2002, unless he was eligible for and requested transfer to the Retired Reserve. 4. An NGB (National Guard Bureau) Form 22 (Report of Separation and Record of Service) shows the applicant was honorably separated from the NYARNG on 2 July 2003 and transferred to the USAR Control Group (Reinforcement). He had completed 15 years and 23 days of net service this period, 8 years of prior Reserve Component service, and 23 years of total service for pay/retired pay. It also shows, in pertinent part, in: * item 18 (Remarks): NGB Form 22 and NGB Form 55a (Honorable Discharge from the Federally Recognized ARNG) were mailed to the Soldier's last known address as shown in item 19 (Mailing Address After Separation) * item 20 (Signature of Person Being Separated): "Soldier Not Available for Signature" 5. On 18 August 2003, the Director, Military Personnel, Headquarters, NYARNG, Latham, NY, notified the applicant that his eligibility for retired pay had been established upon attaining age 60 (Twenty Year Letter). 6. U.S. Army (USA) Human Resources Command (HRC), St. Louis, MO, Orders B-05-603695, dated 12 May 2006, promoted the applicant to MAJ effective and with a date of rank of 19 July 2000. The Additional Instructions show: "Special Board 2005SS12RA, adjourned on 4 November 2005." 7. Headquarters, Department of the Army (HQDA), USA HRC, St. Louis, MO, Orders C-09-629221, dated 5 September 2006, terminated the applicant's membership in the USAR on 29 August 2006 and reassigned him from the USAR Control Group (Reinforcement) to the NYARNG effective 30 August 2006. 8. An NGB Form 337 (Oaths of Office) shows the applicant executed an oath of office for appointment in the NYARNG in the rank of MAJ on 30 August 2006. 9. Office of the Adjutant General, Joint Force Headquarters, Latham, NY, Orders 265-1095, dated 22 September 2010, promoted the applicant to LTC effective and with a date of rank of 22 September 2010. 10. Joint Force Headquarters – New York, Latham, NY, memorandum, undated, subject: Selection for Retention Under the Provisions of NGR 635-102 (Officers and Warrant Officers Selective Retention) shows the Adjutant General, NYARNG, notified the applicant that the 2012 Selective Retention Board had adjourned and was approved, and that he had been selected for retention for a period of 2 years. 11. NGB, Washington, DC, Special Orders Number 139, dated 14 July 2016, announced the withdrawal of Federal recognition status of the applicant on 30 June 2016 and transferred him to the USAR Control Group (Retired Reserve) effective 1 July 2016. 12. In support of his request the applicant provides copies of the following documents. a. Two USA HRC, St. Louis, MO, memoranda, dated 3 and 12 May 2006, that show the applicant was notified an HQDA SSB (2005SS12R8) convened on 4 November 2005 and selected him for promotion to MAJ with a promotion eligibility date of 19 July 2000. b. USA HRC, St. Louis, MO, memorandum, dated 30 June 2006, that shows the applicant was notified of his selection for promotion and that to be promoted he must remain in an active status and meet promotion eligibility criteria. c. Headquarters, NYARNG, Joint Forces Headquarters, Latham, NY, memorandum, dated 23 July 2007, from the applicant to the President, 2007 MAJ-LTC Selection Board. It shows he notified the President of the Board that he had not completed the required Intermediate Level Education due to an administrative error by HQDA that resulted in his separation in July 2003. He advised that he was returned to duty with the NYARNG on 31 (sic) August 2006, completed Phase I on 21 July 2007, and expected to graduate in the summer of 2008. 13. In the processing of this case, an advisory opinion was obtained from the Deputy Chief, Personnel Policy Division, NGB, Arlington, VA. a. The advisory official noted the applicant is requesting his MRD be extended from 30 June 2016 to 30 September 2019, a period of 1,188 days. b. The advisory official stated that, on 26 July 2001, the applicant was notified he was a two-time non-select for promotion to MAJ. When a Soldier is a two-time non-select for promotion to MAJ, the Soldier will be separated or transferred to the Retired Reserve, if otherwise eligible. In the applicant's case, an NGB Form 22 separated him on 2 July 2003 and erroneously transferred him to the IRR. The applicant was in the IRR from 3 July 2003 to 29 August 2006. c. On 3 May 2006, he was notified of his selection for promotion to MAJ by an SSB, which determined his non-selection to MAJ was due to an administrative error. He was promoted to MAJ effective 19 July 2000. d. Had he actually been promoted on 19 July 2000, as the SSB determined should have occurred, he would not have been erroneously separated from the NYARNG nor erroneously transferred to the IRR. e. Orders were published transferring him from the IRR back to the NYARNG effective 30 August 2006. Since he was not in an active drilling status for the period 3 July 2003 to 29 August 2006 (1,155 days), he was unable to complete any active service during that period. Consequently, he could not earn the retirement points necessary for any qualifying retirement year(s). However, he continued to accrue creditable service for pay while assigned to the IRR, which counted toward his MRD. f. The advisory official recommends, as a matter of fairness and justice, the applicant's MRD should be extended by 1,155 days to 30 August 2019 to allow him the opportunity to earn creditable qualifying service for retirement that he was not able to earn as a result of the administrative error. g. The advisory official also recommends the applicant's separation based on the 30 June 2016 MRD should be revoked and the applicant reinstated in the NYARNG as the Command IG, 42nd Infantry Division, NYARNG. He noted that the NYARNG concurs with the recommendation. 14. On 11 August 2016, the applicant was provided a copy of the NGB advisory opinion to allow him the opportunity (30 days) to submit comments or a rebuttal. A response was not received from the applicant. REFERENCES: 1. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), chapter 4 (Processing Selection Board Recommendations), section V (Nonselection for Promotion), shows in: a. paragraph 4-30 (Mandatory consideration nonselection policy), that an officer who twice fails to be selected for promotion to the grade of CPT, MAJ, or LTC will be removed from active status, unless subsequently placed on a promotion list, selected for continuation, or retained under any other provision of law; and b. paragraph 4-33 (Action resulting from nonselection), a MAJ on the reserve active status list 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 nonselected the officer for the second time. ARNGUS officers will be processed according to NGR 635-100 (Termination of Appointment and Withdrawal of Federal Recognition). 2. Army Regulation 140-1 (Mission, Organization, and Training) prescribes policy on the USAR mission, its organizations, and training. Chapter 3 (Training), paragraph 3-10, shows that unit commanders will grant credit for constructive attendance for Soldiers taking part in rescheduled training (RST) for the scheduled Unit Training Assembly (UTA) or Multiple UTA (MUTA). Soldiers taking part in equivalent training (ET) in lieu of attending scheduled training assemblies will be considered constructively present at training assemblies. They will be entitled to pay and retirement point credit upon satisfactory performance of duty. 3. Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) prescribes the types of training and activities for which retirement points are authorized and the procedures for recording retirement point credits and training for USAR Soldiers. a. Chapter 2 (Crediting and Awarding of Retirement Points), paragraph 2-1 (Criteria for crediting retirement points), in pertinent part, shows the maximum limitations on the number of points which may be credited to a Soldier during a retirement year – * Membership – 15 points for each year in an active status * Inactive Duty Training (IDT) – 60 points for IDT and Membership points * RY – 365 points (366 points during leap year) b. Chapter 3 (Records), Table B-1 (Retirement Point Credit – Minimum Required for a Portion of a Year of Qualifying Service for Retirement), shows that over the course of a 365-day retirement year, a Soldier must earn a minimum of 50 retirement points. 4. Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers. a. Paragraph 7-1 (Removal from Active Status): Soldiers removed from active status will be discharged or transferred to the Retired Reserve except as stated in (1) and (2) below. Transfer to the Retired Reserve is authorized when requested by Soldiers who are eligible. b. Paragraph 7-2 (Length of Service): LTCs are removed on the earlier of the following dates except as shown in (2), below. The actual removal date will be 30 days after (a) they complete 28 years of commissioned service if under age 25 at initial appointment, and/or (b) their 53rd birthday if age 25 or older at initial appointment. c. Paragraph 7-11 (General Exceptions) (b) (Erroneous removal from an active status): The removal of a Soldier from active status becomes void if the removal was contrary to law. When the erroneous removal is discovered, the Soldier will be allowed to resume active participation in the Reserve. Removal orders will be revoked to clarify the record and the Soldier's active status will be confirmed. 5. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-11 states that applicants do not have a right to a hearing before the ABCMR. The Director of the ABCMR or the chair of an ABCMR panel may grant a formal hearing whenever justice requires. DISCUSSION: 1. The applicant contends, in effect, that his records should be corrected to show his reinstatement as a Reserve commissioned officer in the ARNGUS and the NYARNG with an MRD of 30 September 2019. 2. The applicant's request for a personal appearance hearing was carefully considered. However, 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 is sufficient to render a fair and equitable decision at this time. 3. The evidence of record shows the applicant was incorrectly twice non-selected for promotion to MAJ, erroneously separated from the ARNGUS and the NYARNG on 2 July 2003, and transferred to the USAR Control Group (Reinforcement) effective 3 July 2003. a. On 4 November 2005, an SSB determined his non-selection to MAJ was due to administrative error. As a result, he was promoted to MAJ effective 19 July 2000. b. He was reinstated in the ARNGUS and the NYARNG on 30 August 2006. c. From 3 July 2003 through 29 August 2006 (1,155 days), he was not in an active drilling status, he was unable to complete any active service during this period, and he could not earn the retirement points necessary for any qualifying retirement years. However, he continued to accrue creditable service for pay while assigned to the IRR, which counted toward his MRD. 4. During the processing of his application, the applicant reached the MRD of 30 June 2016 and was transferred to the USAR Control Group (Retired Reserve). Therefore, as a matter of justice, his records should be corrected to show he was reinstated in the ARNGUS and the NYARNG, in the rank of LTC, effective 1 July 2016 with an MRD of 30 August 2019. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160009547 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160009547 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2