ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 15 April 2019 DOCKET NUMBER: AR20160013255 APPLICANT REQUESTS: promotion to the rank/grade of lieutenant colonel (LTC)/O-5. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149, (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Attachment, DD Form 149, Item 6 * List of Attachments, undated, DD Form 149, Item 9 * Master of Arts Degree * DA Form 2496 (Disposition Form), dated 1 July 1982 * Command and General Staff College Diploma, dated 27 October 1989 * Command and General Staff College Diploma, dated 27 June 1992 * Special Warfare Center Form 2221-7 (Civil Affairs Course Diploma), dated 11 August 1995 * U.S. Army War College Certificate, Defense Strategy Course, 22 May through 13 November 1996 * Letter, Headquarters, U.S. Army Civil Affairs and Psychological Operations Command (Airborne), dated 5 August 1996 * Memorandum, U.S. Total Army Personnel Command, dated 9 May 2000, subject: Notification of Promotion Status * Orders C-01-100466, U.S. Army Reserve Personnel Command, dated 9 January 2001 * Letter, U.S. Army Human Resources Command, dated 28 January 2005 * Letter, Army Board for Correction of Military Records, dated 2 May 2006 * Letter, Office of the Commanding General, Multi-National Force-Iraq, dated 8 May 2007 * DA Form 160-R (Application for Active Duty), dated 4 July 2008 * List of Attachments, undated, Promotion to LTC (Applicant) * List of Military and Civilian Education, undated * Letter, Headquarters, Multi-National Force-Iraq, dated 14 August 2008 * Self-Authored Statement, dated 19 July 2016 * Letter, Army Review Boards Agency, Congressional Liaison and Inquiries, dated 3 August 2016 * Self-Authored Statement, dated 15 August 2016 FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. He should be advanced to the rank/grade of LTC/O-5 under the provisions of Title 10, U.S. Code. He retired on 9 January 2001 in the rank/grade of major (MAJ)/ O-4. He believes he had almost 30 years of combined active duty, U.S. Army Reserve. and Army National Guard service. b. He had the required amount of time in service and time in grade for promotion to LTC/O-5 and served in the rank/grade of MAJ/O-4 for over 6 years. He received a promotion notification to LTC, dated 9 May 2000. c. He did not receive the notification until late December 2002, which was sent 2 1/2 years after it was written. His promotion notification was sent over 11 months after he retired. He has both the military and civilian education to earn the rank/grade of LTC/O-5. d. He volunteered to return to active duty on several occasions. He believes he should be promoted to LTC, but he did not receive his promotion through no fault of his own. He received letters of appreciation during his tenure as an MAJ/O-4. 3. On 1 March 1979, he was appointed as a second lieutenant (2LT)/O-1 in the U.S. Army Reserve following prior enlisted and warrant officer service. 4. He provided numerous copies of diplomas, certificates, and a letter of congratulations, attesting to his military and civilian accomplishments during the period 18 August 1978 through 5 August 1996. 5. On 28 July 1999, he was convicted of child pornography by the State of Illinois and ordered to a term of 30 months of probation. 6. The applicant provided a letter, dated 9 May 2000 that shows he was notified a USAR Selection Board convened on 8 September 1999 and selected him for promotion to LTC; this letter is not filed within his OMPF. The letter shows to be promoted, he must have a current security clearance, be medically qualified for retention, meet Army body compassion program standards, and meet promotion eligibility criteria set forth in Army regulation (135-155). 7. On 9 January 2001, he was reassigned to the Retired Reserve by reason of completion of 20 or more qualifying years of Reserve service. 8. On 10 January 2001, he was issued a memorandum of reprimand by the Commander, U.S. Army Reserve Personnel Command, for the civil conviction of child pornography. The commander informed him that he directed his transfer out of the Ready Reserve in a separate action. The commander advised him of his intention to file the reprimand in his Official Military Personnel File (OMPF). 9. On 12 February 2001, he acknowledged receipt of the memorandum of reprimand. He indicated he intended to submit a statement in his behalf. He stated he retired from the service on 10 January 2001 and questioned why the letter was being sent after his retirement. 10. A memorandum from the U.S. Army Reserve Personnel Command General Attorney, dated 7 March 2001, stated there is no legal issue or difficulty with the reprimand of a member of the Retired Reserve. Furthermore, the fact that an appeal is pending in the civilian court system does not preclude the imposition or filing of the reprimand. The report of conviction is a sufficient basis for the commander to reprimand the officer. 11. A memorandum from the Commander, U.S. Army Reserve Personnel Command, to the Chief, Army Reserve, dated 6 April 2001, recommended filing the memorandum of reprimand in the applicant's OMPF. The Commander stated the applicant is currently assigned to the Retired Reserve. The applicant acknowledged receipt and submitted a rebuttal on 12 February 2001, admitting to pleading guilty to the incident that took place in April 1977 and asking what authority the Commander had to issue the reprimand. The incident took place prior to the applicant's transfer to the Retired Reserve on 1 May 1999. The command was not aware of the incident until October 2000, at which time the applicant's separation was initiated. 12. On 14 June 2001, the Chief, Army Reserve, directed filing the reprimand in the performance section of the applicant's OMPF, stating the applicant's action displayed a severe lack of moral leadership. 13. On 14 July 2016, the Army Grade Determination Review Board informed the applicant the provision of law pertaining to advancement on the Retired List only pertains to certain retired enlisted Soldiers and certain retired warrant officers. He was advised to apply to the ABCMR if he believed there was an error or injustice. BOARD DISCUSSION After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. The applicant was notified by a letter, dated 9 May 2000 that he was selected for promotion to LTC in the USAR. His record shows an elimination action occurred in October 2000 after his chain of command learned of a civil conviction. The applicant provided no evidence showing he was in a promotable status and served in LTC positions as a MAJ (promotable) prior to his command’s elimination action. There is no evidence he was promoted to LTC and served successfully at that grade. Based upon the preponderance of evidence, the Board agreed there was no error or injustice in this case. With administrative regularity in consideration, the Board concluded he was properly separated without first being promoted as the civil conviction likely stripped him of his clearance and caused a flag from personnel actions. BOARD VOTE: Member 1 Member 2 Member 3 : : : Full Grant : : : Partial Grant : : : Formal Hearing Grant : :X :X :X Deny 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. ADMINISTRATIVE NOTE(S): not applicable. REFERENCES: 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 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. 2. Title 10, U.S. Code, section 1406, states a person who is entitled to Non-Regular service retirement pay is entitled to retired pay at the rate of the highest grade held satisfactorily by the person at any time in the Armed Forces. The highest grade in which a person served satisfactorily as an officer shall be determined in accordance with section 1370(d) of this title. 3. Title 10, U.S. Code, section 1370(d), states in order to be credited with satisfactory service in an officer grade above MAJ, a person must have served satisfactorily in that grade (as determined by the Secretary of the Military Department concerned) as a Reserve commissioned officer in an active status or in a retired status on active duty for not less than 3 years. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160013255 2