ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 May 2019 DOCKET NUMBER: AR20170011367 APPLICANT REQUESTS: Reconsideration of his previous request to * promotion to Colonel (COL) * back pay for promotion to COL * retirement grade changed to COL * personal appearance before the Board APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * attorney letter FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Numbers AR20150010252, dated 26 July 2016 and AR20130014096, dated 11 June 2014. 2. The applicant, through his attorney, states: a. The ABCMR denied the applicant's request for retroactive promotion to the rank/grade of COL/O6 with an effective date of rank of 1 February 2004. This request for reconsideration is timely submitted and submits substantial new relevant evidence that is with the Board's authority to grant the relief request. b. The ABCMR decision states, "any correction by the ABCMR must comport with other laws." The Board may not ignore a requirement contained in or outcome dictated by another statute. Typically, the ABCMR achieves this by changing an operative fact in the record, thereby making the correction in compliance with that statute. Where officer personnel issues are involved that require approval by the Secretary of Defense, the Board's hands are often tied...any correction to the applicant's promotion would effectively amend the Secretary of Defense's action and goes beyond the authority of this Board. Although the applicant may have been eligible for promotion, he was never scrolled or extended Federal recognition." c. The United States Court of Claims in Skinner v. United States has reviewed the distinctions between selection and correction boards and determined that the correction board could give additional relief, such as ordering a promotion. If an individual has a clear-cut legal entitlement to a position but subordinate officials in the government misinterpret the Constitution, statutes, or regulations and improperly decline to recommend an individual for nomination or appointment, redress may be available. d. The applicant met all the legal requirements for promotion to COL. He was assigned to a COL billet and recommended for a unit vacancy within the Texas Army National Guard (TXARNG) effective 5 December 2003. He would have been promoted had it not been for the failure of the TXARNG leadership to properly submit his recommendation for appointment. Since the applicant is now in the retired reserve, the ABCMR is the appropriate authority for redress. e. The Board's decision also failed to consider the full context of the satisfactory service requirement under Title 10 United States Code (USC) 1370 where it states, an officer above the grade of major who had completed at least six months of satisfactory service in grade may be credited with satisfactory service in grade, notwithstanding failure of the person to complete three years of service in that grade, if that person is transferred from an active status due solely to the requirement of nondiscretionary provision of law requiring that transfer due to a person's age. f. The applicant served in a position for which COL was the minimum authorized grade for 10 months, from 7 June 2003 through 6 April 2004, until he was transferred to the Retired Reserve due to the nondiscretionary provision of law, requiring his transfer at age 60. g. Based on this information, the applicant would have met the satisfactory service requirement to be retired in the rank of COL. 3. The applicant’s service record shows he was a member of the TXARNG until his retirement at the age of 60 on 6 June 2006. His date of birth is 6 June 1946. The applicant retired in the rank of Lieutenant Colonel. 4. The supporting documents in the two previous ABCMR cases show the applicant was placed in a duty position which authorized the rank of COL effective 7 June 2003. He was promoted to the rank of COL on a DA Form 4187 (Personnel Action Request) effective 5 December 2003; however, he was not federally recognized or scrolled to the rank of COL. 5. The applicant remained in the COL position from 7 June 2003 through 6 April 2004 when he was transferred to the US Army Reserve Control Group (Reinforcement). The applicant's previous ABCMR cases contain officer evaluation reports from 2001 through 2003 in which he was ranked as the best qualified and where the senior rater stated he should be considered for promotion to COL. 6. On 13 January 2005, the Chief, Office of Promotions, Reserve Components (RC), U.S. Army Human Resources Command (HRC) notified the applicant that a Department of the Army (DA) RC Selection Board was convened on 17 May 2004 to consider officers in his grade for promotion. He was informed that he was considered but not selected for promotion by the board. He was advised that if he remained eligible, he would be considered by the next mandatory selection board for his grade and category. 7. On 1 February 2006, the Chief, Office of Promotions, RC, HRC, notified the applicant that a DA Special Selection Board (SSB) was convened to consider SSB requests. The SSB examined the performance portion of his Official Military Personnel File. He was considered under the 2004 criteria, but, unfortunately, he was not selected for promotion by the SSB. He was advised that his nonselection by the SSB did not constitute an additional failure of selection, but was confirmation of the action of the regularly-convened board. He was further advised that the specific reasons for his nonselection were not known, as selection boards do not record their reasons for selection or nonselection. 8. Dated 17 January 2014, an advisory opinion obtained from National Guard Bureau was included in his first ABCMR case. The Chief, Personnel Policy Division recommended partial approval of the request. She stated: a. In light of the evidence submitted by the Soldier, consideration should be given to the Soldier being promoted to COL. The Soldier was placed in an 06 slot on 7 June 2003; he reached his minimum time in grade as of 5 December 2003; and documentation was submitted by his supervisor recommending the Soldier for promotion on 5 December 2003. This implies the intent of his Units leadership to have the State initiate and submit the promotion packet in order for the applicant to be promoted to COL. This recommendation is for the Soldier to be promoted to COL effective 5 December 2003, the day he became eligible. As he was placed in the 06 slot on 7 June 2003, it is feasible to recommend that his date of rank be effective on this date. b. According to regulation, Lieutenant Colonel's and above must serve satisfactorily in the higher grade for three years to receive retired pay in the higher grade. The Soldier's discharge on 6 April 2004 would negate his ability to maintain the grade. A favorable decision would be applicable if the reason for the discharge was a result of the Soldier not being promoted and/or the alleged acts of discrimination are found to have some validity affecting his decision. c. The State did not concur with this recommendation. 9. The Reserve Officer Personnel Management Act (ROMPA), Section I, paragraph 1-3, Retired Grade, applies only to those officers selected for promotion by a mandatory board or a Federal recognition board that convened on or after 1 October 1996. It provides that an officer in a grade above major must retire due to completing maximum years of commissioned service, or upon reaching maximum age (60 at the time), the officer must have held the grade for at least six months to retire at that grade and officers completing 20 years of active Federal service can retire at the highest grade held satisfactorily for six months. 10. Title 10 USC Section 1370 states: a. An officer in the grade above major who has served satisfactorily in that grade as a reserve commissioned officer in an active status for at least six months may be credited with satisfactory service in the grade in which serving at the time of transfer or discharge, notwithstanding failure of the person to complete three years of service in that grade, if that person is transferred from an active status or discharged as a reserve commissioned officer solely due to the requirements of a nondiscretionary provision of law requiring that transfer or discharge due to the person’s age or years of service. b. To the extent authorized by the Secretary of the military department concerned, a person who, after having been found qualified for Federal recognition in a higher grade by a board, serves in a position for which that grade is the minimum authorized grade and is appointed as a reserve officer in that grade may be credited as having served in that grade. The period of the service for which credit is afforded under the preceding sentence may only be the period for which the person served in the position after the Senate provides advice and consent for the appointment. 11. 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. 12. 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. 13. 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. d. There may be cases (specifically correction of constructive credit that affects original appointment grade) where relief is not possible because an appointment to a higher grade has not yet occurred. In those cases, the Board should be advised of the limits of its authority. The Board may also be advised that the applicant can submit a request for reconsideration after he or she has been appointed to a higher grade. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and the applicant’s statement. The Board discussed the applicant’s service in a Colonel position, but found no evidence of him being selected for and approved for promotion to Colonel and no evidence of him being federally recognized or scrolled as a Colonel. The Board did note the letters from HRC that inform him he was not selected by a Special Selection Board. The ABCMR cannot promote officers, only adjust date of rank of effective date of promotion after an appointment to a higher has occurred. In this case, the ABCMR cannot provide the requested relief. Based on that, the Board determined that a personal appearance was not warranted. 2. After reviewing the application and all supporting documents, the Board found the 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 to amend the decision of the ABCMR set forth in Docket Numbers AR20150010252, dated 26 July 2016 and AR20130014096, dated 11 June 2014. 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 15-185 (ABCMR), the regulation under which this Board operates, provides that ABCMR members will review all applications that are properly brought before them to determine the existence of an error or injustice, and to direct or recommend changes in military records to correct the error or injustice, if persuaded that a material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record; it is not an investigative body. 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. 2. The Reserve Officer Personnel Management Act (ROMPA), states the retired grade provisions of ROPMA apply only to those officers selected for promotion by a mandatory board or a Federal recognition board that convened on or after 1 October 1996. a. An officer below the grade of lieutenant colonel can retire at the highest grade held satisfactorily for six months. b. An officer in a grade above major must serve satisfactorily in that grade for at least three years to retire at that grade. However, if the officer must retire due to completing maximum years of commissioned service, or upon reaching maximum age, the officer must have held the grade for at least six months to retire at that grade. c. Officers completing 20 years of active Federal service can retire at the highest grade held satisfactorily for six months. 3. Title 10 United States Code Section 1370 states: a. In order to be eligible for voluntary retirement under any provision of this title in a grade above major or lieutenant commander, a commissioned officer of the Army, Navy, Air Force, or Marine Corps must have served on active duty in that grade for not less than three years, except that the Secretary of Defense may authorize the Secretary of a military department to reduce such period to a period not less than two years. b. In order to be credited with satisfactory service in an officer grade above major or lieutenant commander, a person must have served satisfactorily in that grade (as determined by the Secretary of the military department concerned) as a reserve commissioned officer in an active status, or in a retired status on active duty, for not less than three years. c. A person covered by the paragraph above, who has completed at least six months of satisfactory service in grade may be credited with satisfactory service in the grade in which serving at the time of transfer or discharge, notwithstanding failure of the person to complete three years of service in that grade, if that person is transferred from an active status or discharged as a reserve commissioned officer solely due to the requirements of a nondiscretionary provision of law requiring that transfer or discharge due to the person’s age or years of service. d. To the extent authorized by the Secretary of the military department concerned, a person who, after having been found qualified for Federal recognition in a higher grade by a board under section 307 of title 32, serves in a position for which that grade is the minimum authorized grade and is appointed as a reserve officer in that grade may be credited for the purposes of subparagraph (A) as having served in that grade. The period of the service for which credit is afforded under the preceding sentence may only be the period for which the person served in the position after the Senate provides advice and consent for the appointment. 4. Skinner v. United States, 219 Ct. Cl. 322 at 332, 594 F. 2d 824 (1979), states the correction board could give additional relief, such as ordering a promotion. The correction board can also correct an injustice not amounting to legal error. 5. Smith v. Secretary of the Army, 384 F. 3d 1288, 15 1294-95 (Fed. Cir. 2004), states as a general matter, a service member is entitled only to the salary of the rank to which he is appointed and in which he serves. For that reason, in a challenge to a decision not to promote, the Military Pay Act ordinarily does not give rise to a right to the pay of the higher rank for which the plaintiff was not selected. There are two recognized exceptions to that general rule. Under the first exception, an action for money arises under the Military Pay Act in the unusual case in which, on the plaintiff's legal theory, "there is a clear-cut legal entitlement" to the promotion in question, he has satisfied all the legal requirements for promotion, but the military has refused to recognize his status. Under the second exception, an action for money arises under the Military Pay Act when the decision not to promote the service member leads to the service member's compelled discharge. If, in such a case, the effect of an order voiding the nonpromotion decision would be to give the service member a right to continue in the service at his previous rank, he would have a claim for the pay lost because of his improper separation. In that instance, the Military Pay Act would give the service member a right to back pay, because the Act "confers on an officer the right to pay of the rank he was appointed to up until he is properly separated from the service."