BOARD DATE: 12 December 2017 DOCKET NUMBER: AR20160014139 BOARD VOTE: __x______ __x______ __x______ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 12 December 2017 DOCKET NUMBER: AR20160014139 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20130008732, dated 12 December 2013. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. submitting his records to a duly-constituted SSB for promotion consideration to colonel (COL), under the criteria determined by Officer Promotions, U.S. Army Human Resources Command (HRC); b. if selected, further correct his records by showing he was promoted to COL on his date of eligibility, as determined by appropriate Departmental officials, using the appropriate criteria, provided he was otherwise qualified and met all other prerequisites for promotion; and c. if not selected, so notifying the applicant. ___________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: AR20160014139 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 reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision set forth in Docket Number AR20130008732 on 12 December 2013. Specifically, he requests correction of his records to show his date of rank (DOR) to lieutenant colonel (LTC) as no later than 13 January 2007. 2. In a separate letter to the Army Review Boards Agency (ARBA), dated 11 December 2017, the applicant requested consideration by a special selection board (SSB) for promotion to colonel (COL). 3. The applicant states he is submitting this application based on his eligibility for promotion as a Reserve officer on active duty. His current DOR is 1 June 2015, based on promotion orders dated 23 June 2015. 4. The applicant provides a self-authored letter and the following: * a memorandum from the U.S. Army Human Resources Command (HRC), dated 12 January 2006, subject: Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty * Orders 39-4, issued by the National Guard Bureau (NGB) on 8 February 2008 * Orders HR-5195-00003, issued by HRC on 14 July 2015 * Orders B-06-602560, issued by HRC on 23 June 2016 * Orders HR-5195-00003A07, issued by HRC on 16 September 2016 * a memorandum from the Executive Director, Warrior Care and Transition, Office of The Surgeon General, dated 1 October 2016, subject: Principal Duty Assignment for LTC [Applicant] * excerpt from the U.S. Army Wounded Warrior Support Center Table of Distribution and Allowances (TDA), prepared on 23 March 2017 * Orders HR-5195-00003A08, issued by HRC on 14 August 2017 * Orders HR-5195-00003A09, issued by HRC on 21 August 2017 * Unit Personnel Accountability Report (AAA-162), dated 25 October 2017 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130008732 on 12 December 2013. 2. As new evidence, the applicant provides promotion orders, dated 23 June 2016. He also provides as a new request for consideration by a SSB for promotion to COL. This new evidence and request was not previously considered by the Board. 3. The applicant's records were referred to a Promotion Review Board for reconsideration of his promotion status. He was informed, on 13 June 2016 that the Secretary of the Army had decided to retain him on the promotion list. Orders B-06-602560 were issued by HRC on 23 June 2016, which show he was promoted to LTC with an effective date and DOR of 1 June 2015. 4. The applicant's request for reconsideration of the previous ABCMR decision concerns an adjustment to his DOR to a date not later than 13 January 2007. Orders B-06-602560A01, published by HRC on 17 November 2017, amended his DOR to 13 January 2007. Therefore, this portion of the requested relief has been satisfied and will not be discussed further in this Record of Proceedings. 5. Due to the applicant's recent selection for promotion to LTC, which was effective 1 June 2015, he has not yet been considered for promotion to COL. 6. The applicant is currently on active duty; however, he will be transferred to USAR Control Group (Retired Reserve) on 1 January 2018 based on reaching his mandatory removal date (MRD). 7. In the processing of this case, an advisory opinion was obtained on 17 November 2017 from the Chief, Active Component/Reserve Component Board Support, Officer Promotions, HRC. The advisory official noted and opined: a. The applicant's request to adjust his DOR did have merit. b. The applicant was in the Maryland ARNG and an AGR officer and was not able to pin on in accordance with Title 10 U.S. Code 12011 due to limitations of the controlled grades. The applicant transferred to the U.S. Army Reserve (USAR) on 31 May 2015 and his promotion orders to LTC were published the next day with an effective date of 1 June 2015 due to the fact that HRC did not know he was AGR ARNG when he was transferred. c. His DOR has been adjusted to his maximum time in grade 13 January 2007. 8. The applicant was provided a copy of the advisory opinion for his information and possible rebuttal. He concurred with the advisory official on 4 December 2017 and submitted a request to HRC, wherein he requested his MRD of 1 January 2018 be extended to 1 July 2018. REFERENCES: 1. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 4-2d states "AGR officers selected by a mandatory board will be promoted provided they are assigned/attached to a position in a higher grade. The DOR will be the date the officer attained maximum time in grade or the date on which assigned/attached to a position in a higher grade, whichever is earlier." a. AGR promotions are subject to limitations of controlled grades per Title 10, U.S.C., section 12011 as mentioned above. Paragraph a(1) of Title 10, U.S.C., section 12011 states "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, LTC, and COL may not, as of the end of the Fiscal year, exceed the number determined (by the table in the section of law)." b. Table 2-1 specifies that a LTC must have a minimum of 3 years, up to a maximum of 5 years (subject to the needs of the Army), time in grade, for promotion consideration to COL. c. Paragraph 3-19 (Promotion Reconsideration Boards) states officers and warrant officers who have either failed selection for promotion, or who were erroneously not considered for promotion through administrative error may be reconsidered for promotion by either a PAB or SSB, if appropriate. This document also provides that PABs/SSBs will convene to correct/prevent an injustice to an officer or former officer who was eligible for promotion but whose records, through error, were not submitted to a mandatory promotion selection board for consideration or contained a material error when reviewed by the mandatory selection board. 2. Army Regulation 600-8-29 (Officer Promotions), prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the active duty list. Chapter 7 provides that SSBs are governed by the same instructions provided to the boards that considered or should have considered an officer for promotion. a. Paragraph 7-2 states SSBs may be convened under 10 USC section 628 to consider or reconsider commissioned or warrant officers for promotion when Headquarters Department of the Army (HQDA) discovers one or more of the following: (1) An officer was not considered from in or above the promotion zone by a regularly-scheduled board because of administrative error (SSB required). (2) The board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary). (3) The board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary). b. A material error is defined as being of such nature that in the judgment of the reviewing official (or body), had it been corrected at the time the officer was considered by the board that failed to recommend him/her for promotion, it would have resulted in a reasonable chance that the officer would have been recommended for promotion. Reconsideration may also be granted when material information was missing from the officer's file when seen by a promotion board. DISCUSSION: 1. In view of HRC's adjustment to the applicant's DOR, he now requests consideration for promotion to COL by an SSB. 2. Based on the evidence of record, the applicant would have been considered for promotion consideration to COL had his DOR been adjusted earlier. 3. The applicant will be transferred to the Retired Reserve effective 1 January 2018. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160014139 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160014139 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2