IN THE CASE OF: BOARD DATE: 2 March 2020 DOCKET NUMBER: AR20170001118 APPLICANT REQUESTS: * correction of his military service records to reflect he was educationally qualified for selection to promotion for the Fiscal Year (FY) 2015 US Army Reserve (USAR) Major (MAJ) Promotion Board * reinstatement in the USAR with no break in service * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Memorandum, Subject: Letter of Recommendation for applicant, dated 1 December 2016 * Memorandum for Record, Subject: Record Correction and Selection Continuation (SELCON), dated 5 December 2016 on behalf of the applicant FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the 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 is requesting to have his file corrected to show he is educationally qualified due to Army regulation that states an Officer coming from Active duty has three years to complete his or her education requirements. b. He is currently pending discharge as of 1 April 2017. If relief is approved, he is requesting to be brought back into the USAR with no break in service. c. He also submitted a letter explaining he was not given an Officer Evaluation Report (OER) when he left active duty. When he tried to contact his command, his rater who was a civilian no longer worked at the command, and his senior rater was now retired. d. Within one month of pinning the rank of Captain (CPT), he was “PCS’ed” (permanent change of station) to Korea for 12 months. Six months after returning from Korea, he deployed to Iraq with the 61st Multifunctional Medical Battalion at Fort Hood, TX. During his deployment, he was injured in a training accident and was returned to the states. Due to the lack of 70D’s (Health Services Systems Management) available, he convinced his Commander to allow him to return to theater. After returning back to home station, the medical staff discovered he had contracted Leishmaniosis from the bite of a fly. For the next three years he was not able to go to the Captain’s Career Course (CCC) due to the effects of the disease and the back and knee injuries sustained in the training accident. e. He was eventually medical boarded and allowed to join the USAR as long as he could pass his Army Physical Fitness Test (APFT). He left active duty in October 2014 and was not placed in a unit until December 2014. f. The applicant was contacted by the Branch Manager and told he would be going to a promotion selection board very soon. He explained his files from the active component had not been transferred yet and he had not completed CCC. His branch manager sent a message to Army Human Resources Command (HRC) requesting to be removed from the slate, but the applicant was told that since he did not have a break in service, he would have to go to the board. g. He was told to write a letter to the Promotion Selection Boards (PSB) explaining his situation and to request an education waiver. He was informed after the board convened that his letter was not [received or considered] due to an error with his digital signature. h. Since joining the Reserves, he has tried everything to attend the US Army Medical Department (AMEDD) CCC. He was told by his branch manager that because he was flagged for being passed over, he could not change his file or get into school. He was never told he would have three years to complete CCC upon leaving Active Duty. i. When he came off active duty in October 2014, he was not given an OER. Adding the files allows him to get promoted to allow continuation in military service. 3. The applicant provides: a. Letter of recommendation, dated 1 December 2016, signed by Major General (MG) M_L_ wherein the MG requests for the applicant receive an educational waiver and his file corrected. The memorandum further states [the applicant] “has worked very hard with my staff trying to secure a slot in the AMEDD CCC,” and the applicant currently has a slot in the next Adjutant General CCC scheduled for 22 January 2017. The MG also contends the applicant will be very successful if granted this opportunity. b. Letter of Recommendation requesting correction of board file for the applicant and that he be granted SELCON. The letter further states the applicant has performed his duties in an exceptional manner. The applicant has served as the Headquarters and Headquarters Company Commander while being dual hatted as the unit’s Signal Officer. Providing support to over two hundred service men and women. He has been working with every agency in the hopes of getting a seat in the AMEDD CCC. 4. A review of the applicant’s military records shows the following: a. He was honorably separated on 12 September 2014 from Regular Army and transferred to the USAR. A copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in: * Item 4a (Grade, Rate or Rank), “CPT” * Item 12c (Net Active Service This Period), 8 years 4 months 1 day * Item 12d (Total Prior Active Service), 3 years 4 months 25 days * Item 12e (Total Prior Inactive Service), 3 years 10 months 3 days * Item 28 (Narrative Reason for Separation), “Disability, Severance Pay, Combat Zone (Enhanced)” b. Orders 15-224-00011, issued by Headquarters, 63d Regional Support Command (RSC), Mountain View, CA on 12 August 2015 transferred him to the 5501 US Army Hospital 1000 Bed in San Antonio, TX, effective 8 September 2015. c. Orders Number, issued by Headquarters, 63d RSC on 8 August 2016, transferred him to the 350th Civil Affairs Command, Pensacola, FL, effective 1 September 2016. 5. The applicant's service records are void of: * a promotion order to MAJ or that his name was on the Reserve Active Status List (RASL) or Active Duty List (ADL) for promotion to MAJ; * any copies of notification of non-selection memorandums; or * orders releasing him from the USAR with an effective date; his record is archived, and he is not currently serving 6. On 13 February 2020, an advisory opinion was obtained from HRC, Fort Knox, KY. In summary, the Chief of the Health Services Division opined: a. The applicant’s request to rescind his discharge and return him to an active status without a break in service cannot be accommodated by this office. b. The applicant was discharged from his reserve appointment because he failed selection for promotion to the grade of MAJ twice and was not SELCON on the RASL. c. He was duly considered, but not selected for promotion by the FY 2015 and FY 2016 MAJ AMEDD, Army Reserve (AR), PSBs. d. The applicant was deemed educationally qualified for promotion to MAJ at the time the PSBs took place. Although selection boards do not record the reason for selection, suffice it to say that no material error existed within his promotion file as it relates to being educationally qualified for promotion (if selected). A copy of the complete advisory opinion has been provided to the Board for their review and consideration. 7. Army Regulation 15-185 (ABCMR) states 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. 8. See additional REFERENCES below. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service, his departure from active duty and transfer to the USAR. The Board considered the letter of support he provided and the review and conclusions of the HRC advising official that stated the applicant was deemed educationally qualified for promotion to Major, but was not selected. The Board did not find evidence that the applicant was denied selection due to education qualifications. Based on a preponderance of evidence, the Board determined that there was no error or injustice pertaining to the applicant’s consideration for promotion to Major. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. REFERENCES: 1. Title 10, United States 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 Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation (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 MAJ 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. Paragraph 2-8b (Education substitution) further states an officer will be considered educationally qualified for promotion to the next higher grade under the conditions listed in paragraphs (1) through (3), below. The officer must have completed at least 2 years of consecutive ADL service as a commissioned officer but cannot be presently serving on the ADL. (1) The officer is being considered for promotion to a grade no more than one grade higher than his or her ADL grade. (2) The officer was not considered for promotion to a grade higher than his or her ADL grade that resulted in a recommendation by the board that the officer not be promoted. (3) The officer was released from ADL as a commissioned officer within 3–years of the date the board convenes. c. Officers who discover that material error existed in their file at the time they were nonselected for promotion may request reconsideration. To determine if there is an error in the promotion file, the officer may request, within 2 years of the board recess date, a copy of his or her file, as considered by the mandatory Reserve of the Army selection board. Send requests to CDR, HRC, Chief, Office of Promotions (RC), ATTN: AHRC-MSL-NS, 9700 Page Avenue, St. Louis, MO 631325200. 3. AR 135-155 states in Section V – Nonselection for Promotion, 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. a. Officers nonselected will be sent notification on public release of the approved board recommendations. b. The original copy of the memorandum will be sent to an officer through command channels or directly to the officer if he/she is in a non-unit status. (1) One copy will be filed in the officer’s MPRJ. (2) One copy will be filed in the officer’s OMPF 4. The ABCMR may not appoint an officer to a higher grade. That authority is reserved for the President and has not been delegated below the Secretary of Defense. 5. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170001118 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1