BOARD DATE: 12 December 2017 DOCKET NUMBER: AR20160013547 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 BOARD DATE: 12 December 2017 DOCKET NUMBER: AR20160013547 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. BOARD DATE: 12 December 2017 DOCKET NUMBER: AR20160013547 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, correction of the effective date of his promotion to lieutenant colonel (LTC)/pay grade O-5 (from 17 June 2014 to 11 January 2011) with all back pay and allowances and consideration for promotion to colonel (COL)/pay grade O-6 by a Special Selection Board (SSB). He also requests personal appearance before the Board. 2. The applicant provides a summary of the timeline pertaining to his request: * on 11 January 2011, the results of the Fiscal Year 2010 (FY10) LTC Army Promotion List (APL) Reserve Component (RC) Competitive Categories Promotion Selection Board (PSB) were released * on 12 January 2011, he was notified of his selection for promotion; at that time – * he was eligible to leave the Army National Guard (ARNG) and join the U.S. Army Reserve (USAR) for immediate promotion to LTC * he was unaware that his promotion to LTC could occur if he left the Washington ARNG (WAARNG) and joined the Army Reserve (AR) * from 12 January 2011 through 2016 he was on orders for several short-term assignments * on 27 January 2012, he reached the mandatory (i.e., seven (7) years) time in grade (TIG) as a major (MAJ)/pay grade O-4 * he was mobilized from 15 May 2012 to 30 April 2014 * on 8 February 2013, he wrote to the President, WAARNG, Officer Career Management Board (OCMB) – * his inquiry pertained to the mandatory requirement for promotion of mobilized officers and those who have reached the maximum TIG * he did not receive a response * from 2010 to 2014, the WAARNG conducted five (5) OCMBs * from 2012 to 2014, he wrote letters to the – * President, OCMB and explained that four Officer Evaluation Reports (OERs) were missing from his Official Military Personnel File (OMPF) * WAARNG Deputy G1 and G1, but he did not get a response a. He states that he learned that it is a tactic by WAARNG raters and senior raters to refuse to complete OERs for officers they do not want promoted, even if selected by the Department of the Army (DA). b. He refers to Army Regulation (AR) 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) and DA Personnel Policy Guidance (PPG): "ARNG officers DA selected for promotion by a DA Mandatory promotion board…will have the following options: (1) accept the promotion to fill a unit vacancy; (2) delay the promotion (up to three years for LTC and below); (3) decline the promotion; (4) accept the promotion in the Reserves." (1) He states the policy guidance shows, "A mobilized officer who is selected by a DA Mandatory promotion board and is on an approved promotion list shall…be promoted without regard to the existence of a vacancy, on the date on which the officer completes the maximum years of service in grade." (2) He adds that AR 135-155, paragraph 4-22, shows, "delay [of promotion] beyond the maximum period [7 years] is not authorized unless approved by the DCS [Deputy Chief of Staff], G-1." c. He states the WAARNG failed to provide him any written guidance on options after not being State-selected for promotion. If he had been given the required guidance, he would have immediately left the ARNG and been promoted to LTC in the USAR on 11 January 2011. From 2010 to 2014, he was never offered a promotion to fill any unit vacancy; however, during that period 43 WAARNG MAJs were promoted to LTC to fill unit vacancies. He adds that he never delayed or declined a promotion within the WAARNG. d. He refers to Title 10, United States Code, section 14316 (10 USC 14316), "If the officer has not been promoted to fill a vacancy in the higher grade in the ARNG, the officer's Federal recognition in the officer's reserve grade shall be withdrawn and the officer shall be promoted and transferred to the AR." e. He adds it has been difficult to obtain legal guidance on this complicated issue. Also, most legal advisors are not familiar with laws, rules, and policies that guide Army promotions within the National Guard Bureau (NGB) and USAR. He had to obtain all of the information himself and it took several years to assemble all pertinent data. f. He concludes that his promotion to LTC was deliberately delayed, refused, and ignored by senior officials within the WAARNG for five (5) years. He adds the WAARNG failed to follow established laws, regulations, and policies that govern promotions of military officers. 3. The applicant provides copies of the following documents – * his promotion order to LTC * Military Personnel (Milper) message * extract of FY10 LTC APL selection list * promotion notification memorandum * five (5) memoranda to the WAARNG OCMB (2010–2014) * two email messages (promotion questions) * California ARNG (CAARNG) promotion eligibility memorandum * five (5) memoranda announcing results of the OCMB (2010–2014) * his promotion memorandum to MAJ * nine (9) active duty assignment orders CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a Reserve commissioned officer of the Army, in the rank of second lieutenant, on 15 May 1994. He attained the rank of captain on 1 June 1998 and served in the USAR through 22 March 2003. 2. He transferred to the ARNG of the United States (ARNGUS) and WAARNG on 23 March 2003. 3. NGB, Arlington, VA, memorandum, dated 27 January 2005, subject: Promotion as a Reserve Commissioned Officer of the Army, shows the applicant was promoted to the rank of MAJ (Transportation Corps) effective and with a date of rank (DOR) of 27 January 2005. 4. A review of the applicant's OMPF, in pertinent part, revealed the following evaluation reports: Beginning Date – Thru Date Type of Report Date Added 8 December 2003 – 30 June 2004 Change of Rater 5 March 2005 1 July 2004 – 11 April 2005 Change of Duty 27 October 2010 12 April 2005 – 11 April 2006 Annual 7 June 2006 1 June 2007 – 30 May 2008 Change of Rater 10 March 2011 1 June 2008 – 31 January 2009 Change of Rater 22 June 2009 1 February 2009 – 9 July 2009 Change of Duty 10 March 2011 10 August 2009 – 11 June 2010 Academic Report 19 July 2010 28 February 2011 – 20 May 2011 Academic Report 6 August 2011 12 June 2010 – 11 June 2011 Annual 5 August 2011 12 July 2011 – 11 June 2012 Annual 24 January 2014 12 June 2012 – 15 April 2013 Senior Rater Option 30 January 2014 16 April 2013 – 31 December 2013 Senior Rater Option 30 January 2014 5. Army Board for Correction of Military Records (ABCMR) Record of Proceedings for Docket Number AR20140003785, dated 29 April 2014, shows the ABCMR denied the applicant's request to remove the OER for the period 1 February 2009 through 9 July 2009. The Board noted U.S. Army (USA) Human Resources Command (HRC) returned (without action) his appeal of the OER because he did not submit the appeal within 3 years of the "Thru" date of the OER. In its review of the applicant's request, the ABCMR found insufficient evidence that the rater and senior rater did not comply with the regulatory requirements for evaluating the applicant in a fair and unbiased manner. 6. The applicant transferred to the USAR Control Group (Reinforcement) on 17 June 2014. 7. USA HRC, Fort Knox, KY, Orders B-06-403632, dated 24 June 2014, promoted the applicant to LTC effective and with a DOR of 17 June 2014. 8. On 3 August 2016, the DCS for Personnel and Logistics, USA HRC, Fort Knox, KY, notified the applicant of his eligibility for retired pay at non-regular retirement (20-Year Letter) upon application at age 60. 9. In support of his application, the applicant provided the following additional documents. a. A memorandum from the applicant to The Adjutant General, WAARNG, dated 1 October 2010, subject: OER. It shows he reported that four OERs (during the period 1 July 2004 through 9 August 2009) had not been completed by either the rater or senior rater and that he should not be penalized with a "non-selection" to the next higher rank due to the inactions of the raters/senior raters. (Note: the entry for the OER 1 July 2004 – 11 April 2005 is "lined-thru.") b. Milper Message Number 11-016, subject: Release of the FY10 LTC APL, ARNGUS, AR Active Guard Reserve (AGR), and AR Non-AGR, Competitive Categories PSB, that announced the official release date was 11 January 2011. An attached extract of the FY10 APL Selection List shows the applicant's name. c. WAARNG, Army Element, Joint Force Headquarters, Camp Murray, Tacoma, WA, memorandum, dated 12 January 2011, subject: DA Promotion List for LTC APL RC PSB, that shows the PSB was approved on 3 January 2011 and the applicant was recommended for promotion to LTC. It also shows that those officers DA recommended, but not State-selected must first be considered and selected by the OCMB and officers would be notified when a board date was set. d. Four (4) memoranda from the applicant to the President, OCMB (2011 –2014) that show, in pertinent part: (1) On 9 July 2011, he advised that three OERs and one (1) Academic Evaluation Report had not been uploaded to his OMPF. He indicated that the OERs were attached for review by the 2011 OCMB. (2) On 13 July 2012, he advised that he was unable to review and update his OMPF due to his deployment to Korea; an OER with a "Thru" date of 31 May 2012 had not been completed; and an OER with a "Thru" date of 9 July 2009 was unsigned and not authorized. He noted that he had been denied promotion to LTC two times by the OCMB. (3) On 8 February 2013, he advised that his OMPF had not been fully updated due to his deployment to Korea; an OER with a "Thru" date of 31 May 2013 would be completed at that time; an OER was completed with a "Thru" date of 31 May 2012, but the rating chain is inaccurate (he was attempting to resolve the matter); and an OER with a "Thru" date of 9 July 2009 was unsigned, invalid, and not authorized. He stated that he volunteered for a 1-year assignment in Korea and attended three Pacific-theater exercises. He added that he had over 8 years TIG as a MAJ and referred to the statute governing the promotion of RC officers on the date of completion of the maximum 7 years TIG for MAJ. He noted that he had been denied promotion to LTC three times by the OCMB. (4) On 5 February 2014, he advised that he found several omissions, discrepancies, and errors in his OMPF. He stated that he appealed the OER with a "Thru" date of 9 July 2009 to HRC and he had an application pertaining to the OER pending at the ABCMR. He also stated that he participated in three Pacific-theater exercises and completed nearly 2 years of overseas service in Korea representing the ARNG. He added that he had over 9 years TIG as a MAJ and referred to the statute governing the promotion of RC officers on the date of completion of the maximum 7 years TIG for MAJ. He noted that he had been denied promotion to LTC four times by the OCMB. e. Email messages, dated 30 January 2013, and 5 March 2013, subject: Promotion Questions to a WAARNG and a USA HRC official, respectively, in which the applicant requested information/confirmation of the maximum TIG for MAJ. (There is no evidence of a response to his inquiries.) f. Headquarters, CAARNG, Sacramento, CA, dated 3 October 2013, subject: Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty, addressed to "MAJ" (name redacted). (1) It shows the G1, CAARNG, provided information pertaining to the individual's selection for promotion and the requirements to be promoted (i.e., active status and meet promotion eligibility). In addition, assignment to a duty position authorized a grade equal to or higher than the grade in which selected to be promoted, otherwise choose to: * accept promotion in the Individual Ready Reserve with submission of a letter of resignation requesting transfer to accept the promotion * remain assigned to the CAARNG by signing a memorandum (as permitted in AR 135-155) and submitting it to the CAARNG within 30 days (2) It shows, 'In the event your unit should request your future promotion, the lack of a signed delay on file will stop the processing of your promotion." g. Five (5) Washington Military Department, Joint Force Headquarters, Washington National Guard, Camp Murray, Tacoma, WA, memoranda, subject: Results of OCMBs (2010–2014). The memoranda announced, in pertinent part, the names of officers selected for promotion to LTC by the APL (Specialty Branch), APL, and APL (AGR) PSBs. A review of the five memoranda revealed (based on the applicant's LTC DOR) he was considered by the OCMBs; however, his name is not listed as being selected for promotion by the OCMB (2010-2014) on any of the memoranda. h. Nine (9) orders including seven (7) issued by Headquarters, Military Department, State of Washington, Office of The Adjutant General, Camp Murray, WA; one (1) issued by NGB, Arlington, VA; and one (1) issued by USA HRC (pertaining to the applicant) that show: * Orders 012-026, dated 12 January 2011, ordered him to Active Duty for Operational Support–Reserve Component (ADOS-RC) at Camp Kengun, Kumamoto, Japan, from 22 January 2011 to 5 February 2011; authority 10 USC 12301(d) * Orders 001-010, dated 22 February 2011, ordered him to active duty for training (ADT) at Fort Leavenworth, KS, from 27 February 2011 to 20 May 2011; authority 32 USC 504 * Orders 193-061, dated 12 July 2011, ordered him to ADT in Singapore, from 16 July 2011 to 30 July 2011; authority 10 USC 12301(d) * Orders 325-020, dated 21 November 2011, ordered him to Full Time National Guard Duty–Operational Support (FTNGD-OS) at Camp Smith, HI, from 5 December 2011 to 16 December 2011; authority 32 USC 502(f)(2) * Orders 055-008, dated 24 February 2012, ordered him to FTNGD-OS at Fort Shafter, HI, from 4 March 2012 to 10 March 2012; authority 32 USC 502(f)(2) * Orders 097-072, dated 6 April 2012, ordered him to ADOS-RC at Camp Aguinaldo, Manila, Philippines, from 11 April 2012 to 28 April 2012; authority 10 USC 12301(d) * Orders 128-095, dated 7 May 2012, ordered him to ADOS-RC in Seoul, Republic of Korea (ROK), from 15 May 2012 to 30 April 2013; authority 10 USC 12301(d); section 142, WA & NGB ODO Memo ("Do Not Access Into The Strength of the Active Army") (two copies submitted) * NGB, Orders NG-101-001, dated 11 April 2013, ordered him to ADOS-RC in Seoul, ROK, from 1 May 2013 to 30 April 2014; authority 10 USC 12301(d); section 142 ("Do Not Access Into The Strength of the Active Army") (two copies submitted) * USA HRC, Orders HR-5173-00014, dated 22 June 2015, ordered him to ADOS at Camp Lemonier, Djibouti, from 17 July 2015 to 19 August 2016; authority 10 USC 12301(d) 10. In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB, Arlington, VA, dated 29 August 2017. a. Based on the advisory official's review of the records and information provided, the NGB recommends disapproval of the applicant's request. b. The NGB advisory official referenced: (1) AR 135-155, chapter 4 (Processing Selection Board Recommendations), paragraph 4-5 (ARNGUS promotion), that shows ARNGUS commissioned officers who are on a promotion list resulting from a mandatory promotion board will be extended federal recognition in the higher grade. This will be without examination by a Federal recognition board when the officer is appointed in the State in that higher grade to fill a vacancy in the ARNG. (2) 10 USC 14311, that governs requirements for officer promotions that required delay due to limitation on officer strength in grade or duties to which assigned. (3) DA PPG, dated 1 July 2009, that governs the requirement for promotable officers pending mobilization upon reaching maximum TIG. c. The advisory official stated, "The G1, WAARNG, reports [the applicant] did not submit State promotion packets for the 2011, 2012, and 2013 State OCMBs. Additionally, [applicant] refused to sign delinquent OERs that should be part of the State promotion packet. According to the WAARNG promotion process, it is necessary for all assigned officers to go through the State promotion evaluation system per National Guard Regulation (NGR) 600-100 [Commissioned Officers – Federal Recognition and Related Personnel Actions], Chapter 8-1 and per DA Pam[phlet] 600-3, Chapter 7-3." d. He stated the assignment orders (Orders NG-101-001, dated 11 April 2013) that reassigned the applicant to Seoul, ROK, is not considered a mobilizing assignment. It is a voluntary ADOS-RC assignment directed by the ARNG–HRM Division, which did not preclude the applicant from requesting a delay to his promotion. He added, "According to the DA Mandatory Selection to LTC that was released for FY10, the applicant did not request a delay or decline his promotion, which should have resulted in a non-selection status for FY12 and FY13. This should have resulted in [applicant] becoming a two-time non-select. Based on the two-time non selection status, [applicant] should have been released from the National Guard and transferred to the USAR." e. He noted the advisory opinion was coordinated with the NGB Federal Recognition Section and the WAARNG concurs with the recommendation. 11. On 6 September 2017, the applicant was provided a copy of the NGB advisory opinion to allow him the opportunity to submit comments or a rebuttal. 12. On 1 November 2017, the applicant provided his response/rebuttal. a. The applicant stated that the facts and recommendations provided by the NGB advisory official are untrue and not supported by the preponderance of the evidence. b. He stated that he did submit complete promotion packets during all WAARNG OCMBs from 2010–2014 and the memoranda he provided with his application to the ABCMR offers documentary evidence of this. c. The information related to delinquent OERs is misleading. He restated his assertion that the WAARNG routinely uses the method of writing late OERs for those it does not want to promote. As his letter in 2010 indicated, he had four (4) missing OERs over a 5-year period as a MAJ. From 2004–2014 he had five (5) OERs that were severely delinquent because they were administratively incorrect and prepared by improper rating officials. The WAARNG used these missing and delinquent OERs to justify his non-selection for promotion to LTC. He noted that he was a first-time DA select to LTC in FY10. d. He stated 10 USC 12301(d) is considered an individual mobilization by the Department of Defense and DA. His assignment to Korea was similar to his deployment to Afghanistan and Africa under the same authority. In accordance with DA PPG, personnel under 10 USC 12301(d) orders may be matched against a vacancy higher grade, selected reserve position to be promoted. During his assignment in Korea, he filled a LTC authorized position on the United States Forces Korea manning document. He added 10 USC 14304(b) and DA PPG requires his promotion to LTC at the maximum 7-year TIG for MAJ. e. He addressed the advisory official's statement that his assignment to Korea did not preclude him from requesting a delay to his promotion. He referred to AR 135-155 and the requirement that all DA-select officers are required to be offered one of three options in writing [previously outlined]. He asserted that neither the NGB nor the WAARNG provided him the required memorandum offering the three choices. He never requested a delay or declined his promotion to LTC. He added that he reached his maximum TIG in January 2012 and, had he not transferred from the WAARNG to the USAR, he would still be a MAJ. He noted the DCS, G-1 must approve delay beyond the maximum (7-year) period. f. He stated both the NGB and the WAARNG should be held responsible for their actions, non-actions, and negligence for not complying with the pertinent Army regulations, polices, and protocols. He concluded by stating, "It is their responsibility to follow the regulatory guidance so that officers can make intelligent and informed decisions regarding their careers. The WAARNG Chief of Staff and G-1 ignored and never responded to [his] numerous inquiries reference his TIG and promotion status." REFERENCES: 1. Title 10, United States Code, in pertinent part, shows in: * section 12301 (Reserve components generally), paragraph (d), at any time, an authority designated by the Secretary concerned may order a member of a reserve component under his jurisdiction to active duty, or retain him on active duty, with the consent of that member. However, a member of the ARNGUS or the Air National Guard of the United States may not be ordered to active duty under this subsection without the consent of the governor or other appropriate authority of the State concerned. * section 14316 (ARNG Guard and Air National Guard: appointment to and Federal recognition in a higher reserve grade after selection for promotion), subparagraph (a), Opportunity for Promotion to Fill a Vacancy in the Guard. If an officer of the ARNGUS or the Air National Guard of the United States is recommended by a mandatory selection board convened under section 14101(a) or a special selection board convened under section 14502 of this title for promotion to the next higher grade, an opportunity shall be given to the appropriate authority of the State to promote that officer to fill a vacancy in the ARNG or the Air National Guard of that jurisdiction. * section 14304 (Eligibility for consideration for promotion: maximum years of service in grade), paragraph (b), an officer holding a permanent grade specified in the table in subsection (a) who is recommended for promotion to the next higher grade by a selection board the first time the officer is considered for promotion while in or above the promotion zone and who is placed on an approved promotion list established under section 14308(a) of this title shall (if not promoted sooner or removed from that list by the President or by reason of declination) be promoted, without regard to the existence of a vacancy, on the date on which the officer completes the maximum years of service in grade specified in subsection (a) [Major or Lieutenant Commander, maximum 7 years of service in grade]. The preceding sentence is subject to the limitations of 10 USC 12011. * section 12011 (Authorized strengths: reserve officers on active duty or on full-time National Guard duty for administration of the reserves or the National Guard), (a) Limitations: of the total number of members of a reserve component who are serving on full-time reserve component duty at the end of any fiscal year, the number of those members who may be serving in each of the grades of major, lieutenant colonel, and colonel may not, as of the end of that fiscal year, exceed the number determined. * section 14311 (Delay of promotion: involuntary), subparagraph (e), Delay Because of Limitations on Officer Strength in Grade or Duties to Which Assigned, under regulations prescribed by the Secretary of Defense, the promotion of a reserve officer on the reserve active-status list who is serving on active duty, or who is on full-time National Guard duty for administration of the reserves or the National Guard, to a grade to which the strength limitations of section 12011 of this title apply shall be delayed if necessary to ensure compliance with those strength limitations. The delay shall expire when the Secretary determines that the delay is no longer required to ensure such compliance. 2. AR 600-8-104 (Army Military Human Resources Record (AMHRR) Management), paragraph 4-9, provides rules for administering officer pre-board processing. It shows that officers in the zone of consideration will review and update their Officer Record Brief; all current, available admissible personal information will be submitted to the AMHRR/OMPF; and these officers are responsible for maintaining and submitting current information to the PSB. 3. AR 135-155 provides policy for selecting and promoting commissioned officers of both the ARNGUS and the USAR and warrant officers of the USAR. a. Chapter 3 (Board Schedules and Procedures), section III (Promotion reconsideration boards), paragraph 3-19, provides that officers and warrant officers who have either failed of selection for promotion, or who were erroneously not considered for promotion through administrative error may be reconsidered for promotion by either a promotion advisory board or an SSB, as appropriate. b. Chapter 4 (Processing Selection Board Recommendations), section IV (Voluntary Delay of Promotion), shows in: (1) paragraph 4-22 (Policy), officers who are selected for promotion to the next higher grade may voluntarily request delay of the promotion for a period authorized in this section. Delay beyond the maximum period is not authorized unless approved by DCS, G-1. Request for an exception will not be considered unless the area commander or adjutant general recommends approval. (2) paragraph 4-23 (Approval authority), authority to approve delays of promotion is assigned to – * area commanders for USAR unit officers * the Commander, HRC, for non-unit USAR officers * State adjutants general for ARNGUS officers (3) paragraph 4-24 (Period of voluntary delay), unless an exception is authorized, the period of delay will not exceed one (1) year. The period will be computed from the date on which the officer would otherwise be promoted. The period of delay may be extended, in 1-year increments, to a maximum of 3 years from the date on which the officer would otherwise be promoted for ARNGUS officers (including technicians), with the consent of the adjutant general. 4. AR 15-185 (ABCMR) prescribes policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. 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. b. The regulation also provides that 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 contends that his records should be corrected to show he was promoted to LTC (O-5) effective and with a DOR of 11 January 2011 (instead of 17 June 2014) with back pay and allowances and consideration for promotion to COL (O-6) by an SSB. He also requests personal appearance before the Board. 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 are sufficient to render a fair and equitable decision at this time. 3. The sincerity of the applicant's comments with respect to a WAARNG tactic of submitting late, administratively incorrect, and improperly completed OERs; that the WAARNG used the late/missing OERs to justify his non-selection for promotion to LTC; and that he submitted complete promotion packets to the WAARNG OCMBs (2014–2014) is not in dispute. 4. The applicant was promoted to MAJ on 27 January 2005 and he was selected for promotion to LTC (first-time considered) by the FY10 DA Mandatory LTC APL PSB. It appears the delay in the submission of the OERs in question did not adversely affect his selection for promotion by the FY10 LTC APL PSB. a. He was considered by WAARNG OCMBs (2010–2014) for promotion to LTC. b. He submitted a memorandum to the Adjutant General, WAARNG, on 1 October 2010, in which he reported that four OERs (during the period 1 July 2004 through 9 August 2009) had not been timely completed and that he should not be penalized with a "non-selection" to the next higher rank. c. Three (vice four) OERs were not timely completed at the time of his letter. However, the three OERs were filed in his OMPF shortly thereafter (i.e., one on 27 October 2010 and two on 10 March 2011). (Note: The ABCMR denied the applicant's request to remove the OER for the period 1 February 2009 through 9 July 2009 (i.e., one of the three OERs that was not timely filed).) d. He submitted four memoranda to the President, OCMB (2011–2014) to advise the respective OCMBs of matters related to, in pertinent part, his OERs. In the case of completed OERs that were missing from his OMPF, he provided copies of the OERs to the OCMB for review and consideration by the board. e. The evidence of record shows that all of the OERs in question were filed in the applicant's OMPF prior by March 2011. In addition, based on the evidence of record, all of the OERs the applicant submitted to the President of the respective OCMBs (2010–2014) were available for consideration and review by each board. f. The evidence of record does not support the applicant's contention that the (late/missing) OERs were used to justify his non-selection for promotion to LTC. 5. The applicant reached the maximum (7-year) TIG for MAJ on 26 January 2012. a. He volunteered to serve two consecutive 1-year ADOS-RC assignments in the ROK (i.e., 15 May 2012 to 30 April 2013 and 1 May 2013 to 30 April 2014). b. The orders show the assignments were overseas deployment operations and "Do Not Access Into The Strength of the Active Army." (1) There is no evidence of record that he was assigned to a LTC (O-5) authorized position on the United States Forces Korea authorization document. (2) The applicant acknowledged that he participated in three Pacific theater exercises during his assignment in Korea. c. The NGB advisory official affirmed the applicant's assignments in the ROK were not considered mobilizing assignments. 6. The governing Army regulation shows officers who are selected for promotion to the next higher grade may voluntarily request delay of the promotion for a period authorized. a. The applicant did not request a delay or decline his promotion, which would have resulted in a non-selection status for FY12 and FY13 (i.e., becoming a two-time non-select) with release from the ARNG and transfer to the USAR. b. The authority to approve delays of promotion is assigned to, in pertinent part, State adjutants general for ARNGUS officers. c. Delay beyond the maximum period is not authorized unless approved by DCS, G-1. Requests for an exception will not be considered unless the adjutant general recommends approval. d. However, 10 USC 14311(e) provides that the Secretary of Defense shall involuntarily delay the promotion of a reserve officer on the reserve active-status list who is serving on active duty, or who is on full-time National Guard duty for administration of the reserves or the National Guard, to a grade to which the strength limitations of section 12011 of this title apply, if necessary to ensure compliance with those strength limitations. e. The NGB advisory official cited 10 USC 14311 with respect to the delay of the applicant's promotion. 7. On 17 June 2014, the applicant transferred to the USAR and he was promoted to LTC effective and with a DOR that same date. 8. The regulations governing the Board's operation require that the promotion process be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption. In the absence of evidence to the contrary, the promotion process and his promotion to LTC on 17 June 2014 are presumed to have been proper and correct. Accordingly, there does not appear to be a basis for consideration for promotion to COL (O-6) by an SSB. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160013547 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160013547 15 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2