ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 16 August 2019 DOCKET NUMBER: AR20170012385 APPLICANT REQUESTS: * adjust his date of rank (DOR) to reflect promotion to the rank of Colonel (COL) according to Fiscal Year (FY) 10 Special Selection Board (SSB) * personal appearance before the Board APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self authored letter * Army Board for Correction of Military Records (ABCMR) proceedings AR20070001144 * Email/suspend elimination/separation * original promotion orders to Lieutenant Colonel (LTC) * Chief, Special Actions, Department of the Army (DA) Promotions email * Chief, Office of Promotions Reserve Components email * corrected LTC promotion orders * SSB Notification for FY10 COL board * SSB update email * memo non-selection for FY10 COL SSB * SSB FY10 notification with document submission guidance * excerpt of Title 10 U.S. Code (USC) 14507(b) * four Officer Evaluation Reports (OER) * recommendation for and certificate for the Meritorious Service Medal (MSM) * recommendation for and certificate for the Army Commendation Medal (ARCOM) FACTS: 1. The applicant, states: a. He began the process of correcting his DOR on 13 September 2006 when he found errors in his records. His DOR for Captain (CPT) was corrected to 1 December 1991 through an ABCMR case. Thereafter a SSB corrected his DOR for Major (MAJ) from 19 May 2008 to 27 April 2004 and further corrected it to 8 August 1999. He was promoted to LTC in 2010 but still had the incorrect DORs when he was selected. The SSBs were still correcting his DORs in 2011. The DA Special Promotions Branch Chief requested he not be separated from the US Army Reserve (USAR) because he was approaching his mandatory removal date (MRD). He was separated on 1 September 2011. An SSB corrected his DOR for LTC in 2014 changing it from 20 October 2010 to 9 August 2005. With the change in his DOR in 2015, he would have been a LTC for 5 years and would have been retained according to 10 USC 14507. He was notified in 2014 by the SSB he would be considered for promotion to COL for FY10. b. He received notification in October 2014 that his records were boarded. The board voting process was complete and recommendations were sent for approval. He was notified in July 2015 that he was reconsidered for promotion by the DA SSB, however this was his first consideration for promotion. He was not selected for promotion. The results of the SSB stated they could only assume his overall record did not reflect as high a potential as those selected. c. The clerical errors within his records have caused and continue to cause an injustice to him and his military career. Not being a LTC according to his DOR prohibited him from having appropriate records to present before the FY10 COL SSB. Incorrect DORs for CPT and MAJ on official documents to go before the COL SSB prohibited submission of his Official Military Records. SSB guidance advised information contained in correspondence could only include information dated on or before 19 April 2010, which excluded official information contained in his records from appearing before the board. A lack of records required for the Senior Leader Board could not have reflected as highly, potentially as the records of his contemporaries that were recommended and selected for promotion because a lack of documentation reflects a lack of due diligent on the officer concerned. He was on the Reserve Active Status List for promotion. If he was promoted to COL under the FY10 SSB he would have been retained and extended until 2013 giving him 30 years of commissioned service. d. The incorrect DORs allowed documented official assignments equal to his incorrect DORs. He was regularly positioned to provide guidance, coordinate with, evaluate, and train Brigade level and Division level Senior Ranking Military Commanders during a time of war. Though evaluations at lower incorrect ranks were not permissible before the FY10 SSB, he submits them for the Board's consideration to support his ability to perform various high level functions at higher grade/rank level of responsibility. His LTC OER was not submitted to the SSB for consideration because it was outside of the SSB guidance. The rating was not PERMED [sic] due to his separation from systems and unable to contact his rater and senior rater who had retired for their signatures. e. He has answered the call of duty during a time of war and performed at the highest levels, provided leadership, coordination, training, and gave guidance to his units, other Soldiers, Commanders, and countless military services and civilian governmental organization in order to ensure their successful and safe mission completion. He humbly performed these tasks while wearing ranks that caused him to be subordinate to officers that were below his peer group due to clerical errors in his records. He requests this DOR correction for promotion to the rank of COL. 2. The applicant provides the following documents for the Board's consideration: * ABCMR case AR20070001144, which awarded him constructive credit in the amount of 6 years, 3 months, and 14 days and amended his DOR and effective DOR for CPT to 1 December 1991 * original promotion order to LTC with a DOR and effective date of 20 October 2010 * email from Chief, Special Actions, DA Promotions dated 25 August 2011 stating the applicant was approved for consideration of promotion to COL by a SSB and requesting his elimination date be suspended pending the outcome of the board * corrected promotion orders to the rank of LTC with a DOR of and effective DOR of 9 August 2005 * notification of consideration before an SSB for FY10 * email from Army Human Resources Command (HRC) stating the SSB had met and he will updated of results after they were approved * memorandum from HRC stating he was not selected for promotion * notification of consideration before an SSB for FY10 explaining document submission guidance * an excerpt from 10 US 14507 regarding of removal from the reserve active-status list * an OER he received while mobilized as a CPT which lists him as best qualified and states the applicant should be promoted * an OER he received while mobilized as a MAJ which lists him as best qualified and he should be considered for military schooling and promotion is a must * an OER he received while deployed as a MAJ which lists him as best qualified and states he performed at the LTC level, he is a future leader, and promote now * an MSM he received for serving as a medical operation officer and his performance prepared units for worldwide deployment * an ARCOM he received as the S-4 Officer in Iraq * an OER he received as a LTC which lists him as best qualified and states he is poised for greater leadership responsibilities and promote now 3. The applicant's service records contain a memorandum from HRC stating the applicant would be considered for the SSB promotion board to MAJ from FY98 through FY03 using the criteria established for each FY's board based on the ABCMR decision for AR20100026100. The applicant was promoted to MAJ with his final DOR being 8 August 1999. 4. The applicant was promoted to LTC effective 20 October 2010. He was discharged from the US Army Reserve on 1 September 2011 due to his MRD. His DOR to LTC was corrected to 9 August 2005 on 26 June 2014. 5. The applicant was notified he was eligible for an SSB to promotion to COL using the FY10 Criteria. The guidance given in the notification was correspondence to the board should be undated, and must address only those events which occurred on or before 19 April 2010. The applicant's LTC OER was for the period of 20 October 2010 through 1 August 2011. 6. The applicant was notified on 9 August 2015 he was not selected for promotion to COL. The notification stated "the reason for your non-selection is unknown because statutory requirements set forth in Title 10, USC, Section 14104, prevent disclosure of board proceedings to anyone who is not a sworn member of the aforementioned board. We can only conclude that the special selection board determined that your overall record, when compared with the records of your contemporaries, did not reflect as high a potential as those selected." 7. Title 10 USC 14507 (Removal from the reserve active-status list for years of service) states reserve lieutenant colonels unless continued on the reserve active-status list or retained each reserve officer who holds the grade of lieutenant colonel or commander 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 on the first day of the month after the month in which the officer completes 28 years of commissioned service. 8. The applicant's service records contain a DA Form 2-1 (Personnel Qualification Record) which shows in item 18 (Appointments and Reductions) he was commissioned in the USAR on 16 August 1983. 9. The applicant requested in his previous ABCMR case to be granted a 4 year extension of his MRD. The Board denied that portion of his request. There is no evidence available that his MRD was changed or that he was allowed to remain in the USAR past the date of his MRD pending the results of the SSB. 10. 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. 11. 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. 12. 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 and evidence in the records. The Board considered the applicant’s statement, the changes to his dates of rank over time, his consideration and promotion to LTC, his subsequent consideration and non-selection for Colonel and his separation on 1 September 2011. The Board found no evidence of an MRD extension for the applicant and no reason was given for him not being selected for Colonel. The Board determined that the applicant had been considered for Colonel, there were no more date of rank adjustments the Board could make and that the Board may not promote the applicant to Colonel. In this case, the Board is unable to provide the requested relief. 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. 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. Title 10 USC 14507 (Removal from the reserve active-status list for years of service) states reserve lieutenant colonels unless continued on the reserve active-status list or retained each reserve officer who holds the grade of lieutenant colonel or commander 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 on the first day of the month after the month in which the officer completes 28 years of commissioned service. ABCMR Record of Proceedings (cont) AR20170012385 2