ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:    24 April 2019

	DOCKET NUMBER:  AR20170012610


APPLICANT REQUESTS: 

* Mandatory retirement date (MRD) be adjusted
* receive a Special Selection Board (SSB) for promotion to Colonel (COL) back dated to the date that is determined by the Board 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Self Authored letter, dated 1 June 2017
* Officer Record Brief
* Memorandum for applicant Subject:  Appointment as a Reserve Commissioned Officer of the Army Under Title 10, United States Code, Sections 591, 593, 2104, 2106, and 2107, dated 18 July 1989
* Self Authored letter request to go into the U.S. Army Reserve, undated
* DA Form 4651 (Request for Reserve Component Assignment or Attachment), dated 5 October 1989
* DA Form 591e (ROTC Supplemental Service Agreement)
* DARP Form 2635 (Unit Assignment)
* Photo of applicant 
* DA Forms 1059-1 (Civilian Institution Academic Evaluation Report) x 4
* DA Forms 67-10-2 (Field Grade Plate Officer Evaluation Report) x 3
* DA Form 67-9 (Officer Evaluation Report)
* DA Form 67-8 (US Army Evaluation Report)
* Awards and Decorations
* applicant’s Webster University transcript Master of Arts Management
* applicant’s Completion of Human Resource Management Qualification Course
* applicant's LOE for Army War College
* certificate of combined arms and services staff school waiver
* Virginia Union University Transcript
* Memorandum for Human Resource Command (HRC) Subject: Request for Promotion Reconsideration by a Special Selection Board, dated 5 February 2017
* Memorandum for [Applicant], Subject: Special Selection Board Panel Results FY16, dated 25 April 2017
* Memorandum for President and Board Members, Subject: Instruction for the Fiscal Year (FY) 2016, Colonel Army Reserve Active Guard Reserve (AR-AGR) and Army Reserve Non-Active Guard Reserve (AR Non-AGR) Judge Advocate General Corps (JAGC) Competitive Categories, Promotion Selection Boards (PSB), dated 3 June 2016
* Promotion Lists for FY16 COL JAGC Promotion Selection Board Release, dated 28 October 2016
* Memorandum Army Directive 2017-06 (Promoting Diversity and Inclusion), dated 18 January 2017
* Approved Assignments: 2016 AGR PCS Assignment Cycle 
* PBS New Hour Article; Report US Military Leadership Lacks Diversity at Top, dated 11 March 2011
* Valparaiso University Law School Legal Studies Research Paper Studies: The Intertwined Fates of Affirmative Action and the Military, dated June 2014

FACTS:

1.  Applicant states her MRD should be adjusted.  She was not selected for promotion to COL by the FY16 promotion board.  There were inherent standing procedures with the assignment and promotion process that inadvertently violates an officer's constitutional rights.  Specifically, assignment results recommended by the Judge Advocate General Corp (JAGC) Officer's Steering Committee and the fear of reverse discrimination claims filed by majority race officers significantly impact promotion results contrary to law.  

2.  She states she asked HRC and Personnel, Plans and Training Office (PPTO) to review her files concerning her service as a Troop Program Unit (TPU) while attending law school, and it was determined that her MRD would not be recalculated.  The applicant states in effect, in accordance with Title 10, U.S. Code (USC), section 14706, and Army Regulation (AR) 601-25 (Delay in Reporting for and Exemption from Active Duty, Initial Active Duty Training, and Reserve Forces Duty) time served in an approved educational delay after her initial appointment and before commencing initial service in the Ready Reserve (17 May 1992) should not be counted as years of service towards her MRD.

3.  A review of the applicant's records show:

* 18 July 1989 - appointed as a Second Lieutenant (2LT) in the United States Army Reserves (USAR), the appointment was for an indefinite term
* 18 December 1989 - signed DARP Form 2635 (Officer's Statement of Understanding), to serve in the Adjutant General Corp (42B)
* 5 October 1989 - was assigned to HHD 2d BDE, 80th Division Training USAR Unit 
* 17 May 1992 - received a Juris Doctor degree
* 4 May 1993 - was assigned to the JAGC, the applicant was credited with 4 years and 13 days of entry grade credit effective 5 July 1993
* 1 March 1994 - promoted to Captain (CPT) 
* 30 November 2003 - promoted to Major (MAJ) 
* 22 October 2009 - promoted to Lieutenant Colonel (LTC) 

4.  On 18 December 1989 the applicant signed a DARP Form 2635 showing:

* if assigned to Reserve or national guard unit, such service will not be credited toward fulfillment of any active duty or initial active duty training obligation
* if unit assigned is mobilized or otherwise ordered to active duty the delay will automatically terminate 
* the applicant must be available for unit participation for more than 6 months prior to active duty availability date or tentative completion date of college degree 
* applicant will not be a deployable unit asset until Officer Basic Course is completed

5.  The applicant provided a Request for Orders Memorandum, dated 4 May 1993 showing:

* the applicant was appointed in the USAR with an assignment to the Judge Advocate General's Corps in the grade of 1LT
* the applicant should be credit with 4 years, 0 months and 13 days of entry grade credit effective 5 July 1993
* applicant will attend Judge Advocate General's Basic Course during period                            5 July 1993 to 24 September 1993

6.  The applicant provided 31 DA Forms 67 (Officer Evaluation Reports) and four                    DA Forms 1059 (Service School Academic Evaluation Report).  The applicant's last                   7 DA Forms 67 show she was rated as most qualified or above center mass and recommended for immediate promotion to COL. 

7.  The applicant provided a Memorandum for President and Board Members, Subject: Instructions for the Fiscal Year 2016 (FY16) Colonel (COL), Army Reserve Active Guard Reserve (AR AGR) and Army Reserve Non-Active Guard Reserve (AR Non-AGR), Judge Advocate General's Corps (JAGC) Competitive Categories, Promotion Selection Boards (PSB) dated 3 June 2016 showing: 

* Members are appointed to serve on these boards, board members are obligated to ensure that all eligible officers are considered without prejudice or partiality, must choose officers who will shape the future of the army over the next 10-15 years 
* Board Members seek leaders that are defined by the Army Profession, Character, Warrior Ethos and Service Ethos, Strategic Leadership, Leader Attributes, Team Building and Leader Development, Leading Change, Diversity, Soldier Fitness and Resiliency, Education, Experience, Officer Evaluations Reports, Soldier and Family Support, Operational Factors, and Assignment Considerations 
* Board president will review Memorandum of Instruction with all board members and confirm they all understand the guidance expressed 

8.  The applicant provided Memorandum Subject: Promotion list for Fiscal Year                       (FY) 2016, COL Judge Advocate General's Corp (JAGC), Army Reserve Active Guard Reserve (AR-AGR) and Army Reserve Non-Active Guard Reserve (Non-AR-AGR) Competitive Categories, Promotion Selection Board (PSB), dated 28 October 2016 showing:

* FY16 COL, JAGC AR-AGR and AR- Non- AGR Competitive Categories,                        PSB Convene on 12 July 2016 and recessed on 15 July 2016
* Summary of Board Actions:

o Previously Considered Selection Percentage AR-AGR COL JAGC 8%, AR Non-AGR COL JAGC 5%, 
o First Time Consideration Selection %: AR-AGR COL JAGC 0%, AR Non-AGR COL JAGC 17%, 
o Below Zone Selection %:  AR-AGR COL JAGC 0%, AR Non-AGR COL JAGC 0%
o ROPMA Opportunity %: AR-AGR COL JAGC 0%, AR Non-AGR COL JAGC 38%

9.  The applicant provided a Memorandum Subject: Army Directive 2017-06 (Promoting Diversity and Inclusion) dated 18 January 2017 showing:

* The Assistant Secretary of the Army (Manpower and Reserve Affairs) (ASA (M&RA)) and the Deputy Chief of Staff (DCS), G-1, working with the Diversity Council will engage in diversity and inclusion initiatives that support the Army's priorities of readiness, Future Army and taking care of troops
* Army has a compelling interest in ensuring senior civilian and military leaders are representative of the Nation and the Army, fostering diversity and inclusion at senior levels 
* Plans to address diversity will include objective qualification criteria for development positions that prepare employees and Soldiers to lead, analysis of whether any of the qualification criteria disproportionately exclude gender-specific, racial or ethnic populations, analysis of whether additional measures are necessary to improve the diversity of the underlying pool and recognition that diversity of backgrounds, cultures, perspectives, skills and experiences contribute to innovation, fosters inclusion and prepares leaders to resolve complex challenges 
* After considering a diverse slate, selecting officials will choose the candidate he or she believes is most qualified for the position

10.  The applicant provided JAGC mission and vision statement, Valparaiso University Law School; Legal Studies Research Paper, PBS News Hour Report and Legal Case Saunders V. Caldera to show the lack of diversity in senior leadership in the military.

11.  On 5 February 2017 the applicant submitted a request to Army Human Resource Command (HRC) for reconsideration for promotion to Col by a Special Selection Board (SSB).

12.  On 25 April 2017 the applicant received a memorandum from Army HRC regarding her request for a SSB.  HRC denied her request stating:

* Evaluation Selection and Promotion Division Review Panel considered her request for promotion reconsideration; it was determined the promotion board file did not contain any material error
* HRC is confident that the applicant received fair and equitable consideration by the Special Selection Board Panel; the decision to deny the request for a SSB was not under arbitrary, capricious or erratic conditions 

13.  On 16 August 2018 Army HRC provided an Advisory Opinion showing:

* the applicant requested for Mandatory Removal Date (MRD) adjustment and immediate promotion to COL 
* HRC reviewed the applicant's application and administrative action and determined the applicant was not eligible for a MRD adjustment due to educational delay while attending law school
* the applicant attended law school from 21 August 1989 through 17 May 1992, during this time she earned 28, 44 and 52 inactive duty points 

14.  The applicant was provided a copy of the advisory opinion to provide her an opportunity to comment and/or submit a rebuttal.  On 29 August 2018 the applicant provided a rebuttal to the Advisory Opinion showing:

* she disagreed with the advisory opinion, although she was assigned to the USAR unit while in law school, she was not a member of the ready reserve due to not having completed Officer Basic School 
* she was a non-deployable unit asset and said time is exempt from MRD calculation 


15.  In Accordance with Title 10 USC, section 14706 states a Reserve officer’s years of service include all service of the officer as a commissioned officer of a uniformed service other than the following:

	a.  Service after appointment as a commissioned officer of a reserve component while in a program of advanced education to obtain the first professional degree required for appointment, designation, or assignment to a professional specialty, but only if that service occurs before the officer commences initial service on active duty or initial service in the Ready Reserve in the specialty that results from such a degree.

	b.  The exclusion under subsection (a)(3) does not apply to service performed by an officer who previously served on active duty or participated as a member of the Ready Reserve in other than a student status for the period of service preceding the member’s service in a student status. 

16.  Army Regulation (AR) 601-25 (Delay in Reporting for and Exemption from Active duty, Initial Active duty Training and Reserve Forces Duty) prescribes policy and procedures for delay in and exemption from entry on active duty, initial active duty for training (IADT), and Reserve Forces Duty (RFD) for members of the Army National Guard of the United States (ARNGUS) and the USAR.  An initial educational delay (category A) may be granted in 1–year increments.  Officers granted a category A delay will be assigned to USAR Control Group Officer Active Duty Obligator (OADO).  ROTC region commanders will issue orders.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that relief was not warranted.  One possible outcome discussed was to give the applicant a second review of her records to determine if she meets the criteria for an SSB.  However, based upon the documentary evidence provided by the applicant and found within the military service record, the Board concluded that there was insufficient evidence to show that the applicant had an error or injustice which would warrant any correction.  


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

X	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	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 USC, section 14706 states a Reserve officer’s years of service include all service of the officer as a commissioned officer of a uniformed service other than the following:

	a.  Service after appointment as a commissioned officer of a reserve component while in a program of advanced education to obtain the first professional degree required for appointment, designation, or assignment to a professional specialty, but only if that service occurs before the officer commences initial service on active duty or initial service in the Ready Reserve in the specialty that results from such a degree.

	b.  The exclusion under subsection (a)(3) does not apply to service performed by an officer who previously served on active duty or participated as a member of the Ready Reserve in other than a student status for the period of service preceding the member’s service in a student status. 

2.  Army Regulation (AR) 601-25 (Delay in Reporting for and Exemption from Active duty, Initial Active duty Training and Reserve Forces Duty) prescribes policy and procedures for delay in and exemption from entry on active duty, initial active duty for training (IADT), and Reserve Forces Duty (RFD) for members of the Army National Guard of the United States (ARNGUS) and the USAR.  An initial educational delay (category A) may be granted in 1–year increments.  Officers granted a category A delay will be assigned to USAR Control Group Officer Active Duty Obligator (OADO).  ROTC region commanders will issue orders.  (1) A statement from the ARNG or USAR unit commander that states
* There is a unit vacancy in a specified branch and SSI.
* The applicant is acceptable for assignment to the unit.
* The commander understands that the applicant will not be a deployable unit asset until he or she completes a resident officer basic course.
(2) A statement (signed by applicant) of understanding that
* Service will not be credited toward fulfillment of the obligation to perform AD or RFD, if assigned to an ARNG or USAR unit.
* Delay will automatically be terminated; the member will be ordered to AD with the unit, if the unit to which a member is assigned is mobilized or otherwise ordered to AD
* Delay must be renewed annually 
(3) Approved applicants will be—
* Placed by HRC in the branch and specialty called for by the unit vacancy.
* Required to renew their delay annually in accordance with instructions furnished by CG, HRC–STL.

ABCMR Record of Proceedings (cont)	 AR20170012610
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