ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 September 2019 DOCKET NUMBER: AR20180001861 APPLICANT REQUESTS: in effect, review of his non-selection for continuation in the Active Guard Reserve (AGR) program. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter from the U.S. Army Human Resources Command (HRC) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Separation orders * 2012 Notice of Selective Continuation 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 he recently received a letter, dated 2 November 2017, from HRC concerning the Notification of Change to Active Guard Reserve (AGR) Policy pertaining to Selective Continuation (SELCON) in an AGR Status. 3. Review of the applicant’s service records shows: a. Having had prior enlisted service, he was appointed as a Reserve commissioned officer of the Army on 21 December 1990. b. He entered active duty on 6 October 1994. He served in a variety of assignments and he was advanced to major in August 2004. c. In November 2004, the U.S. Army Reserve Command issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). d. On 1 March 2012, he was notified that a Department of the Army Reserve Components Promotion Selection Board (PSB) convened to consider officers for promotion to the next higher grade. He was not selected. The letter further stated: * the Secretary of the Army directed that a Selection Continuation (SELCON) board convene to consider for continued service on the Reserve Active Status List (RASL) those officers who were twice non-selected by the PSB * Even though the PSB did not select him for promotion, the SELCON Board recommended his continuation in his present grade and the Secretary of the Army approved the recommendation * As an AGR officer, he must be released from active duty and the AGR no later than the first day of the seventh month after the board has been approved * Unless he specifically decline continuation, he would be continued on the RASL, not to exceed the maximum years of service allowed by law * An Acknowledgment and Options Statement is enclosed e. The Acknowledgement and Options Statement is not signed or completed by the applicant. f. He was honorably retired from active duty on 30 April 2013, by reason of having sufficient service for active duty retirement, and he was placed on the retired list in his retired grade of MAJ on 1 May 2013. He completed 18 years, 6 months, and 15 days of active service this period and 1 year, 6 months, and 3 days of prior active service. g. On 2 November 2017, by letter, HRC dispatched a memorandum to the applicant, Subject: Notification of Change to AGR Policy pertaining to SELCON in an AGR Status. The memorandum stated: (1) The Deputy Chief of Staff (DCS), G-1, Headquarters, Department of the Army (HODA), has recently discovered that the past practice of releasing officers from the AGR Program after selection and acceptance of selective continuation (SELCON) was not in compliance with current Army policy. He was one of the officers impacted. (2) Based upon the previous policy, the DCS, G-1, advised HRC to consider notifying all former AGR CPTs and MAJs who were released from the AGR program to a reserve active status to serve their SELCON of the right to appeal to the ABCMR. (3) This discovery was made while reviewing the practice of releasing AGR CPTs and MAJs. It was determined this practice was in contravention of AGR Program policy. Because he was removed from the AGR program due to being selected for SELCON, he fell under the population affected. 4. By law (Title 10, U.S. Code, section 14701), a reserve officer of the Army who is required to be removed from the reserve active-status list under section 14504 of this title, or a reserve officer of the Army who is required to be removed from the reserve active-status list under section 14505, 14506, or 14507 of this title, may be considered for continuation on the reserve active-status list under regulations prescribed by the Secretary of Defense. Additionally, a reserve officer who holds the grade of major and who is subject to separation under section 14513 of this title may not be continued on the RASL under this subsection for a period which extends beyond the last day of the month in which the officer completes 24 years of commissioned service. 5. By regulation (AR 600-8-24), commissioned officers on the active duty lost twice non-selected for promotion to the grade of captain, major, or lieutenant colonel be involuntarily released or discharged unless they are, (1) Selectively continued, (2) Within 2 years of retirement (completes 18 or more years active federal service on their scheduled release date), or retired. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. Board members acknowledged the memo he received from HRC with respect to the impact of the change of policy to AGR Soldiers. However, Board members agreed that just because he was impacted, it does not mean he would have been selected for continuation in the AGR. Board members agreed that they do not know what was in his file or have the ability to “review” his file in comparison to other AGR candidates. There is insufficient evidence or reason to explain his selection or non-selection. 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. X CHAIRPERSON Signed by: 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 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, U.S. Code, section 14701 (Selection of officers for continuation on the reserve active-status list (a) Consideration for Continuation): a. A reserve officer of the Army described in subparagraph (B) who is required to be removed from the reserve active-status list under section 14504 of this title, or a reserve officer of the Army who is required to be removed from the reserve active- status list under section 14505, 14506, or 14507 of this title, may be considered for continuation on the reserve active-status list under regulations prescribed by the Secretary of Defense. The consideration of a reserve officer for continuation on the reserve active-status list pursuant to this paragraph is subject to the needs of the service and to section 14509 of this title. b. A reserve officer who holds the grade of major or lieutenant commander and who is subject to separation under section 14513 of this title may not be continued on the reserve active-status list under this subsection for a period which extends beyond the last day of the month in which the officer completes 24 years of commissioned service. 3. Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes the officer transfers from active duty (AD) to the Reserve component (RC) and discharge functions for all officers on AD for 30 days or more. a. Chapter 2, an AGR officer on initial period of duty will be separated from AD 90 calendar days after notification of continuation board action of non-selection or at the end of the initial period of duty, whichever later, unless earlier release is requested by the officer. An AGR officer on a subsequent period of duty who is not recommended for continuation will be released from AD 90 calendar days after notification of continuation board action unless earlier release is requested by him/her. The AGR officers on AD who are within 2 years of eligibility for military retirement will ordinarily not be involuntarily released from AD until eligible for such retirement. The Secretary of the Army may approve the REFRAD of officers when there are unusual circumstances and their retention is not considered to be in the best interests of the Army. b. Chapter 5, Commissioned officers on the AD list twice non-selected for promotion to the grade of captain, major, or lieutenant colonel be involuntarily released or discharged unless they are, (1) Selectively continued, (2) Within 2 years of retirement (completes 18 or more years AFS on their scheduled release date), or retired. /NOTHING FOLLOWS//