IN THE CASE OF: BOARD DATE: 6 February 2020 DOCKET NUMBER: AR20170003621 APPLICANT REQUESTS: a. promotion to the rank of Lieutenant Colonel (LTC)/O-5 effective January 2010 with back payment from January 2010 through December 2015 to include BAH increases, less retirement pay and Veterans Administration (VA) disability entitlements b. promotion to the rank of Colonel (COL)/O-6 effective January 2016 with back payment from January 2016 through Mandatory Retirement Date (MRD) to include BAH increases, less retirement pay and VA disability entitlements c. reimbursement of Virginia Taxes possibly incurred should the above (item a. and b.) be granted effective September 2012 through MRD d. waiver of Survivor Benefit Program (SBP) cost increases should the above (item a. and b.) be granted effective 1 September 2012 until final determination of this request e. award of the Legion of Merit (LOM) effective 28 October 1982 through 31 August 2012 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * List of compensations being requested * Service Computation for Retirement * NGB Form 23B (Army National Guard (ARNG) Retirement Points History Statement) * DA Form 31 (Request and Authority for Leave) * Freedom of Information (FOIA) Request * Memorandum for Record (MFR) Human Capital Management (HCM) Personnel Records Maintenance and Support * Department of the Army Office of the Inspector General (DAIG) Records Release Office letter * DAIG Report of Investigation (ROI) * Order# 205-6 dated 23 July 2012 * Order# 206-21 * DD Form 214WS (Certificate of Release or Discharge from Active Duty) * DA Form 4037 (Officer Record Brief) FACTS: 1. The applicant states: a. that the ARNG improperly conducted the 2011 Release From Active Duty (REFRAD) board which resulted in the denial of her promotion to LTC and continued service and opportunity for probable promotion to COL. She contests that DAIG conducted an investigation into the conduct of the 2011 REFRAD Board and determined that it was conducted inappropriately resulting in the removal of 22 Officers from the Title 10 program. Due to her non-selection for promotion status in June of 2011, she was prevented from competing for future promotions despite having advanced degrees as a mental health counselor, 4 of 5 “top block” Officer Evaluation Reports (OER) and the respect of senior leadership and peers alike. She further contends that the 2011 REFRAD board is just one event that demonstrates the poor management and supervision of both the promotion and retention systems within the ARNG Title 10 program. b. With promotion to COL, it would be 30 years total service in effect; Public Law 109-364. c. Her home of record while on active duty was California, which is tax-free for active duty military pay. She has been a resident of VA since retirement date of 31 Aug 2012 and has been paying VA taxes on retirement income. d. She currently pays SBP at the MAJOR/O-4 rate. LTC and COL promotions will trigger a cost increase for SBP for insurance coverage that has already elapsed (1 Sep 2012-11 Mar 2017). She does not request reimbursement of this money as coverage was provided. She does requests that no additional cost increase is incurred due to back-pay if possible. Once final determination is made on this action, request adjustment of SBP at the newly established retirement rank and collections made from that point forward only. 2. A review of the applicant’s available service records reflects the following on: a. 1 November 1982 – she enlisted in the Army at the pay grade of E-1 (Private) b. 29 October 1987 – she was released from active duty and placed in the Inactive Reserve (IRR) c. 10 February 1988 (Order# C-02-006591) – she was transferred from the IRR into the Reserve d. 14 May 1992 – she enlisted in the ARNG e. 16 August 1993 (Order# 158-58) – she was commissioned at the rank of Second Lieutenant (2LT) f. 20 August 1996 – she was promoted to the rank of First Lieutenant (1LT/O2) g. 7 April 1999 (Order# 097-011) – she was ordered to active duty in the Active Guard Reserve (AGR) program (Title 10) effective 7 June 1999 h. 26 May 1999 – she was promoted to the rank of Captain (CPT/O3) i. 21 October 2004 – she was promoted to the rank of Major (MAJ/O4) j. 18 December 2009 – she completed the Intermediate Level Education (ILE), replaced the Command and General Staff Officers Course (CGSOC) k. 31 August 2012 (Order# 206-21) – she was released from the AGR program (Title 10) and placed on the Retired list at the rank of MAJ, effective 1 September 2012; credited with 21 years, 8 months and 11 days of active service and a total of 29 years, 10 months and 11 days for pay purposes l. 1 October 2012 – she was awarded the Meritorious Service Medal (MSM) covering the period of 15 June 2009 through 30 July 2012 3. The applicant provides the following a: a. Service Computation for Retirement dated 20 July 2012 – reflective of her military service from 7 June 1999 through 31 August 2012 b. Army National Guard (ARNG) Retirement Points History Statement dated 30 April 2012 – reflective of 29 years of creditable service for retired pay c. Memorandum for Record (MFR) Human Capital Management (HCM) Personnel Records Maintenance and Support dated 29 April 2011 – reflective of the zones of consideration requirements for the Calendar Year (CY) 2011 ARNG REFRAD board d. Department of the Army Office of the Inspector General (DAIG) Records Release Office letter dated 11 March 2014 – reflective of a partial denial of her request for information pertaining to the ROI (13-001) from the ARNG 2011 REFRAD Board e. DAIG Report of Investigation (ROI) dated 18 September 2013 – reflective of the findings associated with the conduct of the CY 2011 REFRAD Board. This document in its redacted entirety is contained within the supporting documents for review. Contained within this ROI is the following: i. approximately 225 officers were notified and submitted their packets to the board ii. due to the large amount of officers to be presented before the board, the decision was made to reduce the numbers by applying several variations of “time in grade” requirements iii. the number of officers to appear before the board was reduced from 225 to 36 based upon this criteria in violation of Policy memo 10-002 which states that “Selective objections that would narrow the board population to the point that it targets individual Soldiers will not be developed” f. Order# 205-6 dated 23 July 2012 – reflective of her reassignment to her transition point with a report date of 30 August 2012 g. Order# 206-21 dated 24 July 2012 – reflective of her release from active duty effective 31 August 2012 h. DA Form 4037 (Officer Record Brief) – reflective of her service history from 21 August 1993 to 17 July 2012; date of rank to MAJ is 21 October 2004 4. An advisory opinion was obtained from the Department of the Army (DA) G-1, Selection Board Policy Branch on 2 January 2020. Contained within is the recommendation to direct the ARNG to promote the applicant under her FY10 selection and correct her MRD based on her promotion to LTC. Following this action, a determination would be made to see which board she would be eligible for promotion to COL, provided she met the educational requirements. Also stated on 19 December 2019 by Mr. S_W_ of the Promotions Branch in part is that review of the applicant’s records indicates that she was selected for promotion under the FY10 LTC Army Promotion List (APL) ARNG promotion board. 5. On 17 January 2020 the ARBA Case Management Division provided the applicant with copies of the correspondence received from DA G-1 further affording her with the opportunity to respond and or submit a rebuttal. There was no response received from the applicant. 6. A review of the applicant’s provided documents and electronic records are void of the FY10 LTC Army Promotion List (APL) ARNG promotion board results or orders. 7. See all applicable regulatory guidance below under REFERENCES. 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, her record of service, her removal from the AGR program and placement on the retired list as a Major. The Board considered the DAIG Records Release letter and redacted DAIG Report of Investigation provided by the applicant. The Board considered the advisory opinion from the Department of the Army (DA) G-1, Selection Board Policy Branch and the recommendation to direct the ARNG to promote the applicant under her FY10 selection and correct her MRD based on her promotion to LTC as well as correspondence from the Promotions Branch showing in part that review of the applicant’s records indicates that she was selected for promotion under the FY10 LTC Army Promotion List (APL) ARNG promotion board. The Board concurred with the advising official and determined that a decision regarding the applicant’s eligibility for promotion to Colonel is premature pending her promotion to LTC and a review of her records. The Board found that any increase to the applicant’s BAH, back pay thru MRD, reimbursement of Virginia taxes, waiver of SBP costs is subject to her promotion and reinstatement. The Board found insufficient evidence to support awarding the applicant a Legion of Merit. Based on a preponderance of evidence, the Board determined that a correction to the applicant’s record to reflect promotion to LTC was warranted. 2. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: - Revoking the applicant’s REFRAD and placement on the retired list; - Promoting the applicant to LTC IAW FY10 LTC Army Promotion List (APL) ARNG promotion board; - Adjusting the applicant’s MRD as a result of this promotion and paying her any pay and allowances due, and; - Suspending further SBP premiums contingent upon the applicant’s return to an active status. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to relief in excess of that described above. 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. Army Regulation (AR) 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system. It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support officer promotions. Chapter 7 provides for Special Selection Boards (SSB). a. Paragraph 7-2 states the SSBs may be convened under Title 10, USC, section 628 to consider or reconsider commissioned or warrant officers for promotion when Headquarters Department of the Army 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. This would include officers who missed a regularly scheduled board while on the temporary disability retired list and who have since been placed on the active duty list (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. Paragraph 7-3 (Cases not considered) states an officer will not be considered or reconsidered for promotion by an SSB when an administrative error was immaterial, or the officer, in exercising reasonable diligence, could have discovered and corrected the error in the Officer Record Brier (ORB) or Official Military Personnel File (OMPF). It is the officer’s responsibility to review his or her ORB and OMPF before the board convenes and to notify the board, in writing, of possible administrative deficiencies in them. c. Paragraph 7-11, states that officers who discover that material error existed in their file at the time they were non-selected for promotion may request reconsideration. 2. AR 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) states in table 2-1 to be eligible for promotion from MAJ to LTC the member must have a minimum of 4 years time in grade and a maximum of 7 years time in grade in the lower grade. For promotion from LTC to COL the member must have a minimum of 3 years time in grade. Table 2-2 states the military education requirement for promotion from MAJ to LTC is fifty percent completion of the Command and General Staff Officers Course (CGSOC). Chapter 3, Section Ill (Promotion Reconsideration Boards) provides guidance on reconsideration for promotion by either a promotion advisory board or an SSB for Officers and WOs who have either failed selection for promotion, or who were erroneously not considered for promotion through administrative error. These boards are convened to correct/prevent an injustice to an officer or former officer who was eligible for promotion but whose record, through error were not submitted to a mandatory promotion selection board for consideration, or whose records contained a material error when reviewed by the mandatory selection board. 3. AR 600-8-22 (Military Awards) states that the Legion of Merit (LM) was established by Act of Congress 20 July 1942 (PL 671–77th Congress). EO 9260, 29 October 1942 prescribed the criteria for the award and was amended by EO 10600, 15 March 1955. The LM is awarded to any Service member of the Armed Forces of the United States or a friendly foreign nation who has distinguished himself or herself by exceptionally meritorious conduct in the performance of outstanding services and achievements. The performance must have been such as to merit recognition of key individuals for service rendered in a clearly exceptional manner. Performance of duties normal to the grade, branch, specialty, assignment, or experience of an individual is not an adequate basis for this award. In peacetime, service should be in the nature of a special requirement or of an extremely difficult duty performed in an unprecedented and clearly exceptional manner. However, justification of the award may accrue by virtue of exceptionally meritorious service in a succession of important positions. Only one decoration will be awarded to an individual or unit for the same act, achievement, or period of meritorious service. 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. The ABCMR may correct an officer's date of rank/effective date of rank when a proper appointment has already occurred. a. Title 10 USC 624 and 741 provide for situations in which properly appointed officers are provided "backdated" dates of rank and effective dates to remedy errors or inequities affecting their promotion. The authority to remedy these errors or inequities is given to the Service Secretaries. b. DODI 1310.01 (23 August 2013) provides that a Service Secretary may "adjust the date of rank of an officer ... appointed to a higher grade ... if the appointment of that officer to the higher grade is delayed by unusual circumstances." c. What constitutes "unusual circumstances" will, generally, be for the Board to determine based on the available evidence, which often includes an advisory opinion. 6. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. The Army, by law, may pay claims for amounts due to applicants as a result of correction of military records. b. The ABCMR will furnish DFAS copies of decisions potentially affecting monetary entitlement or benefits. DFAS will treat such decisions as claims for payment by or on behalf of the applicant. DFAS will settle claims on the basis of the corrected military record. DFAS will compute the amount due, if any. c. The ABCMR may, in its discretion, hold a hearing. 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. 7. AR 37-104-4 (Military Pay and Allowances Policy) states, only the Director, DFAS–IN may make settlement actions affecting the military pay accounts of Soldiers as a result of correction of records by the ABCMR per provisions of AR 15–185. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170003621 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1