ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 24 October 2019 DOCKET NUMBER: AR20170006153 APPLICANT REQUESTS: * Back pay of all pay and benefits of four years * Retroactive retirement with a date of 1 December 2015 * Promotion to Colonel with an effective date of 7 February 2013 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored statement * Memo Shaping the Force * DA Form 5016 (Chorological Statement of Retirement Points) * Promotion Board emails * Assignment emails * Memo Fort Meade out processing * List of assignments * Promotion orders * Component Reassignment * Component Reassignment 2011 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 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, she was involuntarily discharge from the United States Army Reserve (USAR) by being denied various positions that she applied for, promotion to colonel and subsequently denying her to remain within the USAR to retire with full honor and benefits. 3. The applicant provides, a. A self authored statement stating she is writing to the Board to have her military record corrected. She served honorably from 3 May 1987 to 1-December 2015; commissioned within the United States Army Reserve (USAR). However, despite her honorable service, she was involuntarily discharged from the USAR by being denied various positions that she applied for and was well qualified for. Denying her to remain within the USAR to retire with full honor and benefits. The following information and documentation will show that this denial of a position was done with discriminatory animus, where others were not treated the same as her. (1). She was assigned to the 311th Theater Signal Command from September 1998 through August 2009. In 2009, she began searching for a valid 42H military occupation specialty (MOS) lieutenant colonel (LTC) position in a unit because her losing Detachment at Fort Meade, Maryland was inactivated in 2009 due to the United States Army Reserve Command Army Reserve Transformation Shaping the Force which became effective 30 January 2009. Also, in 2009, she had a phone conversation with LTC X-----. X. about a senior officer 42 H (MOS) position at the Legal Command. LTC X------. stated that she couldn't place her into that position; however, she was going to send her the contact information for the Army Retention Program (AR) POCs within the District of Columbia area. (2). The Army Reserves (AR) career counselor, Sergeant First Class X---. X. assisted her in transferring into a Troop Program Unit (TPU) at the 1st Army Division East, Fort Meade, Maryland, and effective 1 September 2009. However, when she reported to the unit, she was unassigned due to the transition of the unit and restructuring of the Unit Manning Report (UMR) to include United States Army Reserve Command (USARC) Shaping the Force-Eliminating Senior Grade Over strength. From September 2009 to April 2011; AR career counselors, MSG X----.X---., SFC X----. ., and SFC X----.X----. had been assisting her in finding a valid MOS 42H/05 position in a unit. In addition, she contacted USARC, LTC X----. X-----, Chief Officer Branch, to assist her in finding a 42H LTC/05 TPU position in a unit. (3). LTC P. referred her to the AR career counselors which she had already established communication with in seeking a TPU position within a unit. During that time frame, SFC X----. stated that two LTC/05 42H positions were open, one at the Military Intelligence Readiness Command (MIRC) at Fort Belvoir, and one at the USAR Legal Command in Gaithersburg, Maryland. She contacted the MIRC G1, COL A.V. and LTC K. S. requesting a transfer to Paragraph 008A Line 01 Position Number 0825 (W85FA I) and emailed her biographical summary, last two Officer Evaluation Reports (OER), and her DA Form 4651, (Request for reserve component assignment or attachment dated 22 June 2010). After emailing and waiting for a response from the MIRC GI, COL V. responded to her email on July 28, 2010, stating "she is not able to offer her a position due to the G1 state of transition and she is just coming on board". (4). She in turn contacted the USAR Legal Command G1, COL S.S. and LTC I.B. requesting a transfer to Paragraph 007 Line 01 Position Number 0090 (W8H9AA). She emailed her last two OERs, and DA 4651 on 29 July 2010. When she didn't get a reply, she emailed COL S. on 12 September 2010 inquiring about the status of her request. COL S. responded to her email stating that "he has forward her information to LTC X----. and the G1, COL X------ On 4 October 2010, LTC B. emailed her stating that the G- 1, COL K. is reviewing her information. She still did not get a response from the USAR Legal Command in regards to the status of her request. The career counselor, SFC X------. made several attempts to contact the USAR Legal Command about her request to transfer in the position to include sending emails without any response. (5). In addition, SFC D. went to the USAR Legal Command seeking a response and was told by the USAR Legal Command Unit Administrator (UA) that "she was not aware of her requests". During her phone conversation with SFC X----., she told her that the unit administrator of the USAR Legal Command stated that the position had been filled. On 6 October 2010, she received notification giving her until 15 October 2010, to find a valid position or she would be placed into the Individual Ready Reserve (IRR) effective 1 December 2010. On Friday, 1 April 2011, she called the G1 USAR Legal Command and spoke to the lieutenant colonel whom had filled Paragraph 007 Line 01 Position Number 0090 (W8H9AA), 42H L TC/O5position. He stated that he has been in position for three months. (6). On 3 April 2011, she emailed USARC, LTC X-----. and explained to her about the vacant 42H MOS slot, at the USAR Legal Command and requested to be transferred into this valid position that was still vacant. On 4 April 2011, LTC X----. emailed the United States Special Troops Support Command, (USARJSTSC) G1 to explain to him what was going on with the position in question. When the USARJSTC G1 did not reply, she emailed LTC X----. requesting her to transfer her into the position. LTC X----. told her that she cannot transfer her into that position and to contact Major R., USARC, to send her a list of vacant LTC/05 positions. She contacted Major R. requesting the list of vacant LTC/05 positions and he stated that he would send her the email. (7). She never received the list and continued to follow-up to have her issues addressed. After being involuntarily transferred into the Individual Ready Reserve (IRR). She received an email from SFC X----., stating that the United States Army Reserve is seeking prior service members to be transferred into a Troop Program Unit with one of the reserve units in the Tri-State Region and to contact her. She emailed SFC X-----. and stated that she was still interested in finding a LTC/05 TPU position within a unit. SFC Morris emailed me a list of all available 42MOS LTC/05 TPU positions in the Tri-State Region area. On the list was the USAR Legal Command again and two new available LTC/05 TPU positions that were open at Fort Belvoir, VA. (8). The two new available LTC/05 TPU positions were O1A Officer Generalist at Fort Belvoir. She emailed SFC X---- to request a transfer into one of the O1A Officer Generalist positions. On 27 April 2011, SFC X----. emailed LTC X----.X---., USAR 316th to let him know that she was interested in one of his O1A generalist positions and to contact her. She did not receive a response from LTC H. However, on 27 April 2011, she did receive an email from SFC X----. stating that it would be hard to get a LTC/05 TPU position at Fort Belvoir and that the 78th Training Division has O1A Officer slots in the operations section available. When SFC X----. gave her the contact information, she in turn contacted LTC X----., G3, and emailed him her information to him requesting a LTC/05 position. (9). LTC W---. O----. had given her information to the G3, COL N. and stated that "they will be contacting her soon to let her know the status". Unfortunately, this game of cat and mouse continued to no avail for years. From being assigned into the Individual Ready Reserve (IRR) effective date 1 March 2011 from the USAR Support Command until being involuntarily discharged on 1 December 2015. She continued diligently to attempt to be placed in many positions that she was well suited for within her MOS. However, these positions that she was well qualified for, continued to remain vacant without any valid justification to why she couldn't be placed in them, or was filled with persons that were not qualified based on the required MOS. She was considered for the calendar year (CY) 12 and CY 13 Colonel Promotion Selection Board; however, this Board was delayed until CY 2015. On 13 May 2015, she was notified as an Army Reserve Lieutenant Colonel in the zone of consideration by the CY15 Colonel Promotion Selection Board, and that due to the delay in the release of the CY 15 Headquarters Department of the Army Mandatory Promotion Selection Boards (PSB) results, she would be retained beyond the removal date until the last day of the month in which the board results are publicly released or 1 December 2015, whichever is later. The CY 15 Colonel Promotion Selection Board was released 1 December 2015 and she was issued involuntary honorable discharge orders with maximum authorized years of service effective 1 December 2015. (10). In summary, she allege that the decisions that were made to prevent her from being assigned to any one of the numerous positions that were vacant and that she was well qualified for, was done with discriminatory animus. Therefore, others not of her race and sex were not treated the same and/or were given preferential treatment over her. For example, when the Lieutenant Colonel (MOS 70H) was placed into the), 42H LTC/05position. She also tried for over 4 years to get placed into a position that would have allowed her to continue serving honorably until eligible for retirement. In addition, these discriminatory actions, prevented her from competing for promotion to Colonel due to the delay of the CY 12 and CY 13 Colonel Promotion Selection Board. And to add insult to injury, as an Army Reserve Lieutenant Colonel in the zone of consideration by the CY l5 Colonel Promotion Selection Board, she was issued involuntary honorable discharge orders with maximum authorized years of service effective 1 December 2015, the same date as the release of the CY 15 Colonel Promotion Selection Board. (11). She is quite confident that the facts of his case will show and support that in spite of her best efforts to work through all the proper personnel channels and her own Independent outreach efforts for positions. The Army failed her over the course of 4 years and the subsequent involuntarily discharge prevented her from a well-earned promotion to Colonel and retirement with full military honors. As a dedicated and loyal Solider, she served the Army during three deployments; Operation Iraqi Freedom, Operation Joint Endeavor, and Operation Noble Eagle and Enduring Freedom. In addition, she completed 100 percent of her military education culminating with a Master's Degree in Human Resources/Management. She is seeking full restoration of all benefits and honors that she was denied; a retroactive retirement date effective as of 1 December 2015, at the rank of Colonel/O6 from the Army Reserves with a promotion effective date of 7 February 2013 and full military honors; four years back pay and leave that she would have accrued but for her premature an unwarranted discharge. With her exemplary service of 28 years, she has earned the right to be promoted and retired in the U.S. Army. b. Memorandum Shaping the Force, stating in effect commanders and human resource strength managers now have to make hard, tough decisions on their current Soldier population, and further, enforce regulation and policy applicable to assignments, attachments, details, and transfers now and in the future for involuntary actions. c. DA Form 5016 (Chorological Statement of Retirement Points). d. Promotion board email notification, in effect, explaining to the applicant due to the delay in the release of the year CY 15 Mandatory Promotion Selection Boards (PSB) results she will be retained beyond her mandatory removal date until the last day of the month in which the board results are publicly released or 1 December 2015, whichever is later. Her mandatory retirement date will be extended unless she informs them otherwise. e. Reassignment emails, in effect a conversation between the applicant and different personnel trying to assist her in getting a valid slot in the Army Reserves. f. National Personnel Records Center in effect the applicant submitted a request for her records. g. Fort Meade Out-processing, in effect the purpose of this memorandum is to explain the out processing procedures for the 311th Fort Meade Detachment relocation to Costa Mesa California. h. A list of the applicant assignments i. Promotion orders dated 25 February 2008 with an effective date 10 February 2008 promoting the applicant to lieutenant colonel. j. Orders 09-244-00006 dated 1 September 2009 with an effective date reassigning the applicant to another unit. 4. The applicant service record shows: a. Appointment as a Reserve Commission Officer was effective 3 May 1987. She also signed her DA Form Oath of Office on 3 May 1987. b. She enlisted in the United States Army Reserves (USAR) as a cadet on 30 September 1985. c. She entered active duty for training (ADT) on 25 October 1987. She completed required training for award of military occupational specialty 42A (Adjutant General). She was honorably released from ADT to the control of her USAR unit on 10 February 1988 in accordance with Self terminating orders T-08-735974, dated 18 August 1987) as the separation authority due to completion of period of ADT. d. The applicant entered active duty on 6 January 1996. She was honorably released on 17 September 1996 in accordance with Army Regulation 600-8-24 for completion of required active duty services. Net Active Service this period 3 months 16 days. e. Orders A- 12 -296103 dated 9 December 2002 ordered the applicant to active duty with a reporting date of 16 December 2002. f. Orders 305-2223 dated 1 November 2005 released her from active duty effective 9 December 2005. g. Orders B-02-801261 dated 25 February 2008 promoted her to lieutenant colonel (LTC) effective 10 February 2008. h. Orders D-03-202755 dated 23 March 2015 reflects that effective 1 June 2015, the applicant was honorably discharged from the (USAR). 4. By regulation Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) paragraph 4-21, b (1) and b (2), promotion to fill USAR position vacancies will be no earlier than the approval date of the board or the date the officer is assigned to the position, whichever is later. Also, unit officers selected by a mandatory board will have a promotion date and effective date no earlier than the date the board is approved or the date Senate confirmation (if required), provided they are assigned to a position in the higher grade. a. To be considered for promotion by a selection board, a commissioned officer (other than a commissioned warrant officer) must have continuously performed service on the Reserve Active Status List (RASL), the Active Duty List (ADL), or a combination of both during the 1 year period ending on the date the board convenes. b. Under section 14315(e), Title 10, United States Code (10 USC 14315(e)), a U.S. Army Reserve officer who has failed of selection for promotion by a mandatory promotion board may be considered for a position vacancy promotion or, if selected, promoted to the higher grade, only if the Secretary of the Army determines that the officer is the “only qualified officer available to fill the vacancy.” c. The policy contained herein applies only to officers in the grade of lieutenant colonel who have failed selection to the grade of colonel by a mandatory promotion board. Lieutenant colonel who has failed of selection and who has been continued beyond his or her mandatory removal date, regardless of reason, is not eligible for position vacancy promotion under this policy. Waiver of this provision is not authorized. 5. Army Regulation (AR) 135-175 (Separation of Officers) in effect members of the Army Reserve will be removed from an active status for Length of service completion for maximum authorized years of service as prescribed in AR 140–10 (10 USC 3848 and 3851). 6. AR 37-104-4 (Military Pay and Allowance Policy) paragraph 20-1 settlement actions authority, states that only the director, DFAS (Defense Finance)-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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was not warranted. Based upon the documentary evidence provided by the applicant and found within the military service record, the Board concluded there was insufficient evidence to corroborate the statements of the applicant showing improper actions were taken by leaders. The Board agrees that command leadership are the proper authorities to determine who is qualified for any specific position based upon demonstrated performance. Without evidence of improper actions taken by the command in making those decisions, the Board concluded there was insufficient evidence of an error or injustice which would warrant making a correction to the applicant’s record. 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. 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 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. By regulation Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) a. To be considered for promotion by a selection board, a commissioned officer (other than a commissioned warrant officer) must have continuously performed service on the Reserve Active Status List (RASL), the Active Duty List (ADL), or a combination of both during the 1 year period ending on the date the board convenes. b. Under section 14315(e), Title 10, United States Code (10 USC 14315(e)), a U.S. Army Reserve officer who has failed of selection for promotion by a mandatory promotion board may be considered for a position vacancy promotion or, if selected, promoted to the higher grade, only if the Secretary of the Army determines that the officer is the “only qualified officer available to fill the vacancy.” c. The policy contained herein applies only to officers in the grade of lieutenant colonel who have failed of selection to the grade of colonel by a mandatory promotion board. Lieutenant colonel who has failed of selection and who has been continued beyond his or her mandatory removal date, regardless of reason, is not eligible for position vacancy promotion under this policy. Waiver of this provision is not authorized. 3. Army Regulation (AR) 135-175 (Separation of Officers) provides policy, criteria, and procedures for the separation of officers of the Army National Guard of the United States and the U.S. Army Reserve, except for officers serving on active duty or active duty for training exceeding 30 days. Chapter 4 provides for the discharge or removal from an Active Status of Army Reserve officers. Paragraph 4-3 provides for removal of officers from an active status. Members of the Army Reserve will be removed from an active status for a variety of reasons, including length of service. Such requests must be based on the needs of the Reserve Component and must be justified accordingly. Requests for individual exceptions to the regulatory removal requirement may be submitted through the officer’s chain of command and Deputy Chief of Staff, G-1, to the Assistant Secretary of the Army (Manpower and Reserve Affairs) [(ASA (M&RA)] for approval. 4. Title 10, U.S. Code section 14507 (Removal from the reserve active-status list for years of service: reserve lieutenant colonels and colonels of the Army, Air Force, and Marine Corps and reserve commanders and captains of the Navy). It states in sub- paragraph b (Colonels and Navy Captains), unless continued on the reserve active- status list under section 14701 or 14702 of this title or retained as provided in section 12646 or 12686 of this title, each reserve officer of the Army, Air Force, or Marine Corps who holds the grade of colonel, and each reserve officer of the Navy who holds the grade of captain, and who is not on a list of officers recommended for promotion to the next higher grade shall (if not earlier removed from the reserve active-status list) be removed from that list under section 14514 of this title on the first day of the month after the month in which the officer completes 30 years of commissioned service. This subsection does not apply to the adjutant general or assistant adjutants general of a State. 5. AR 140–10 (Army Reserve - Assignments, Attachments, Details, and Transfers), prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer U.S. Army Reserve (USAR) Soldiers. 6. AR 37-104-4 (Military Pay and Allowance Policy) paragraph 20-1 settlement actions authority, states that only the director, DFAS (Defense Finance)-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) AR20170006153 10 1