ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 March 2019 DOCKET NUMBER: AR20160013357 APPLICANT REQUESTS: * promotion consideration by a special selection board (SSB) for promotion to Lieutenant Colonel (LTC) by the fiscal year 2013 (FY13) * to be awarded the Area of Concentration (AOC) 38A, as a Civil affairs Officer * correction to his service records to reflect attendance to the U.S. Army War College via correspondence courses * selection for promotion to Colonel (COL) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-written statement * DA From 1059, Service School Academic Evaluation Report * Orders Number C-01-501607, dated 23 January 1995 * DA Form 67-8, OERs for the periods of: * 23 November 1994 through 23 November 1995 * 23 November 1995 through 14 September 1996 * 14 September 1996 through 13 September 1997 * 14 September 1997 through 31 May 1998 * extract from the Reserve Officer Personnel Management Act (ROPMA) of 1996 * Orders Number C-03-709178, dated 6 March 1997 * DA From 4037, Officer Record Brief )ORB), dated 31 August 1999 * Memorandum, Subject: Verification of DA Form 67-8 U.S. Army Officer Evaluation Report (OER), dated 1 September 1999 * DA Form 1058-R (Application for Active Duty for Training, Active Duty for Special Work, Temporary Tour of Active Duty, and Annual Training for Soldiers of the ARNG and USAR), dated 20 March 2000 * three memorandums, subject: Notification of Promotion Status, on various dates * print-out of service documents listed in the Army Human Resources Command (HRC) Reserve Record Portal * print-out of assignment history on HRC Portal FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), 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, in effect: a. he was assigned an Infantry captain to prepare his Military Personnel Records Jacket (MPRJ) 201 File to be presented to the FY 99 U.S. Army Reserve (USAR) LTC promotion selection board (PSB). The applicant believes the captain was “up and coming, but not experienced enough” to handle his promotion packet. b. upon a review of records before the FY 00 PSB, he noted documents had not been added to his fiche (military personnel records) since being released from active duty on 30 September 1992. His Officer Evaluation Reports (OER), DA Form 1380 (Record of Individual Performance of Reserve Duty Training), and assignment orders in the U.S. Army National Guard (ARNG) were missing. He submitted his OERs directly to the PSB and the other documents to his assignments branch to be added. c. he was passed over a third time in 2001, and subsequently had to file a DD Form 149 with the Board, in which he requested “to obtain Retired Status [sic].” d. until the Reserve Officer Personnel Management Act (ROPMA), he was considered an Inactive Ready Reserve-A (IRR-A, – meaning of “A” is unknown), to be treated the same as an Individual Mobilization Augmentee (IMA). e. the pass-overs in promotion did not allow for him to complete phase II resident portion of the course. 3. The applicant provides: a. a self-authored summary of the chronological events outlining his request. In it, the applicant states the following: * as he started pulling files for his retirement package to apply for retired pay benefits at age 60, he realized that records were missing or misplaced, which could have affected his placement on the active listing for the LTC PSB. * his OERs or his attachment orders were not included in his “My Documents” files nor any record of an updated DA Form 4037, Officer Record Brief (ORB) * he was able to find copies of his OERs attached to the first request to the ABCMR, Docket Number AR2001056339, which was denied by the Board on 29 November 2001 and used these copies to resubmit for the following LTC PSB * he reviewed the PSB file documents hoping to see which documents were submitted to the PSB, but his board file was blank * he mentioned in his request to the ABCMR that he had also sent the aforementioned OERs and a copy of his ORB directly to the PSB for 2000, via U.S. Postal Service * in 1999, he requested a copy of his microfiche to see what his PSB file may contain and saw that it had not been updated since he was discharged from active duty in 1992 * he completed phase I of the Civil Affairs Advance Course and had submitted a request for funding for the resident phase II course on a DA Form 1058-R, dated 20 March 2000 * he requested an extension to complete the resident course * the school (for civil affairs) granted an extension, but he was not able to follow through due to the “mix up” stated on this request * his assignments history did not show his reassignment to the Maryland National Guard, Company B, 20th Special Forces Group (SFG) (Airborne), and instead shows he is “unassigned TPGBOG” (sic) * according to the 1996 ROPMA, he would have had the minimum time in grade as a Major (MAJ) to be considered to the 1998 LTC PSB * he knew he was due for a review from the branch assignments officer before his PSB, but it never occurred * he now sees this is why he had three non-select letters for promotion to LTC b. DA Form 1059 (Service School Academic Evaluation Report) issued by the U.S. Army Computer Science School on 2 November 1989 for completion of the systems Automation Course for the 53A (Information Systems Management Officer) Area of Concentration. c. Orders Number C-01-501607, issued by the Army Reserve Personnel Center (ARPC), on 23 January 1995, which attached the applicant to Company C, 1st Battalion, 20th SFG for “Training/Points Only” effective 23 November 1994. d. copies of OERs submitted to the PSB, for evaluation periods covered ending on 23 November 1995, 14 September 1996, 13 September 1997, and 31 May 1998. e. extract from ROPMA, effective 1 October 1996, in which the applicant emphasizes the following sections: * paragraph b on page 3, which states that the reserve active-status list (RASL), is a single list of all officers who are actively participating members of the ARNG and the USAR, including those officers in the IRR * paragraph b further states that officers in an inactive status, such as the inactive NG, are not included on the RASL * on the 10 February 1997 Addendum to the ROPMA, he checked off next to paragraphs 2-4b, 2-6h(1a), 3-3, 5-3a, and 5-3c f. Orders Number C-03-709178, dated 6 March 1997, which attached him to Company B, 5th Special Forces Battalion, 20th SFG, for “Points Only.” g. DA Form 1058-R requesting funding for Civil Affairs Advance Course, scheduled for June 2000. h. three memorandums, subject: Notification of Promotion Status, dated 25 March 1999; 9 May 2000; and 8 March 2001; stating the applicant was among those selected for promotion. i. a print-out of his Interactive Personnel Electronic Records Management System (iPerms) from the HRC Portal website, as of 14 July 2016, shows the applicant’s service records. The last OER uploaded to his records is dated 15 July 1992. It also contains two records of ABCMR Proceedings. j. print-out of the assignments history listed on his HRC Portal records, which shows he was assigned to: * the UIC, WTPCC0, Special Forces Battalion, 20th SFG, Company C, on 23 November 1994 * the UIC, TPGB0G (UIC unknown) on 6 March 1997 4. A review of the applicant’s records shows that on: * 20 December 1980 – he was appointed as a Second Lieutenant in the USAR * 19 January 1981 – he was appointed in the Regular Army * 30 September 1992 – he was honorably released from active duty and transferred to the USAR Control Group (IRR) * 6 October 1992 – he was appointed to the USAR 5. On 25 March 1999, the applicant was notified via memorandum that he was considered for promotion to LTC by a USAR Mandatory Selection Board but was not among those selected for promotion. 6. On 9 May 2000, the applicant was notified that he was considered for promotion to LTC by a USAR Mandatory Selection Board but was not among those selected for promotion. 7. On 8 March 2001, the applicant was notified that he was considered for promotion to LTC by a USAR Mandatory Selection Board but was not among those selected for promotion. 8. The applicant’s record contains 2 previous Army Discharge Review Board (ADRB)/ABCMR cases on/for: * 23 March 2001 – petitioned the Board to be reinstated into the IRR for “points only” drill status; 29 November 2001, the Board denied his request * 22 October 2003 – petitioned the Board for correction to retirement points to reflect 20 years of qualifying service for retirement; 24 August 2004, the Board granted full relief of: * providing appropriate retirement points for Retirement Year Ending (RYE) December 2000 from the Records of Individual Performance of Reserve Duty Training (DA Form 1380’s) * void his 11 January 2001 discharge from the USAR * provide sufficient points in non-pay status for RYE of 19 December 2001 and 19 December 2002 to show as qualifying years * show he attained 20 years of qualifying service 9. On 20 December 2002, the applicant was released from the USAR Control Group (IRR) and transferred to the Retired Reserve. ARPC Form 249-E (Chronological statement of Retirement Points) shows he completed 20 years of service. 10. On 30 December 2004, HRC, St, Louis, MO, issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). This letter notified him of the completion of required service and eligibility for retired pay upon application at age 60. 11. On 8 May 2017, the applicant was honorably retired (at age 60) at the current rank of MAJ and placed on the retired list. 12. On 2 May 2018, an advisory opinion was obtained from HRC, Fort Knox, KY. The Chief of the Officer Promotions Branch opined: * based on review of HRC’s records and the information provided, the applicant’s request does have merit * had the applicant’s records been updated prior to the PSB, there may have been (no guarantee) a reasonable chance that he could have been selected for promotion * pending the Board’s directive, the entire process may take up to 12 months (or more) to complete an SSB and its approval for release by the appropriate signature authority. * approval of an SSB does not supersede any law or doctrine as it relates to Mandatory Eliminations, Mandatory Retirement Dates, and/or Voluntary Retirement Dates, Separations or Transition Services in general, nor does it constitute an automatic revocation of discharge/retirement order(s) * this may only occur, if warranted or directed in an approved Board proceedings * in addition, any adjustment of rank, date of rank or associated back pay and allowances will only occur upon favorable outcome that leads to promotion (unless otherwise proven ineligible) 13. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit comments/rebuttal. He did not respond. 14. Army Regulation 600-8-29 (Officer Promotions) states SSBs may be convened under Title 10 U.S. Code (USC), section 628 to consider or reconsider commissioned or warrant officers based on erroneous non-consideration or material administrative error. An SSB will consider the record of the officer as it should have been considered by the original board. 15. Please see below in REFERENCES for Memorandum (Limitation on the Authority of Military Department Correction Boards) from the Under Secretary of Defense, dated 10 February 2015. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant. The applicant’s contentions and the advisory opinion were carefully considered. Based upon the preponderance of evidence, and notwithstanding the advisory opinion, the Board agreed this case does not have merit. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 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, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 140-1 (Army Reserve - Mission, Organization, and Training) shows that USAR control groups include: a. Control Group (Annual Training) consists of non-unit Ready Reserve Soldiers with a training obligation. These Soldiers may take part in annual training when so directed. b. Control Group (IMA) consists of Ready Reserve non-unit Soldiers who are assigned to authorized augmentation positions documented on Active Army organization mobilization Tables of Distribution and Allowances (TDA). These Soldiers are considered available for mobilization or national emergency. IMA and drilling IMA Soldiers are required to perform a minimum of 12 days of annual training per fiscal year exclusive of travel time. Periods of inactive duty for training for pay may be authorized within budgetary constraints. c. Control Group (Reinforcement) consists of all other non-unit Ready Reserve Soldiers not assigned to another control group. These Soldiers may be assigned to a USAR unit or IMA position. d. IRR Soldiers may attend battle assemblies (inactive duty) with local Reserve units for retirement points only (non-pay status). 3. AR 600-8-29 (Officer Promotions) states: a. An SSB will be convened under Title 10 U.S. Code (USC), section 628 to consider or reconsider commissioned or warrant officers based on erroneous non-consideration or material administrative error. b. Material error is one or more errors of such a nature that in the judgment of the reviewing official (or body) it caused an individual's non-selection by a promotion board and that had such error(s) been corrected at the time the individual was considered for promotion, a reasonable chance would have resulted that the individual would have been recommended for promotion. c. An SSB will consider the record of the officer as it should have been considered by the original board. The record will be compared with a sampling, of those officers of the same competitive category who were recommended and not recommended for promotion by the original selection board. 4. AR 135-155 prescribes the policies and procedures for promotion of Reserve officers. This regulation specifies that to be eligible for consideration for promotion to the next higher grade, an ARNGUS or USAR officer must have continuously performed service on either the Reserve Active Status List (RASL) or the Active Duty List (ADL) (or a combination of both lists) during the 1– year period ending on the convening date of the PSB, and must meet the TIG requirements in tables 2-1 or 2-3, as appropriate. a. Mandatory selection boards will convene each year. These boards will consider ARNGUS and USAR officers on the RASL for promotion to CPT through LTC. These boards will consider officers for promotion without regard to vacancies in the next higher grade. (1) Those officers who were not selected for promotion on the first consideration, and who remain in an active status, will be reconsidered by the next PSB considering their grade and/or branch. (2) An officer who twice fails to be selected for promotion to grade of W-3, W-4, CPT, MAJ, and LTC will not again be considered promotion. USAR officers will be transferred to the Retired Reserve (AR 140--10, para 7-4), or discharged (AR 135-175, para 4-4). b. The Secretary of the Army has delegated the authority to convene SSBs to DCS, G-1. The DCS, G-1 will convene promotion advisory board/SSB on an ’as needed’ basis. These boards will be convened to reconsider officers who were either improperly omitted from consideration due to administrative error, or who were non-selected for mandatory promotion as a result of material error. SSBs are conducted as an additional duty of regularly scheduled mandatory Reserve of the Army selection boards for the same competitive category. 5. Memorandum (Limitation on the Authority of Military Department Correction Boards) from the Under Secretary of Defense, dated 10 February 2015, states under the Appointments Clause of the United States Constitution, the President appoints Officers of the United States by and with the advice and consent of Senate, unless by law, Congress has vested appointment authority for inferior officers in the President alone, in Courts of Law, or in the Heads of Departments. Accordingly, only the President may appoint Regular officers above the grade of 0-3 and Reserve officers above the grade of O-5 following Senate Confirmation. Only the Secretary of Defense may appoint all other officers because Congress has vested such appointment authority in the President alone, and the President has assigned that function to the Secretary of Defense. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160013357 0 7