IN THE CASE OF: BOARD DATE: 10 March 2020 DOCKET NUMBER: AR20180004428 APPLICANT REQUESTS: Correction of his record to show: * he was promoted to the rank/grade of captain (CPT)/O-3 effective 1 January 1996 * reinstatement of his commission * waiver for time in grade to retire in the rank of CPT APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * TRADOC Form 958-1 (Reserve Officers’ Training Corps (ROTC) Advanced Camp Cadet Evaluation), dated 17 July 1987 * Memorandum, Subject: Waiver of Academic Standing, dated 28 September 1987 * DA Form 4609 (Professor of Military Science Pre-Accession Evaluation), dated 30 September 1987 * Recommendation for appointment of ROTC graduate as a Regular or Reserve commissioned officer of the Army, dated 13 August 1988 * DA Form 1059 (Service School Academic Evaluation Report), dated February 1991 * Orders Number 79-39, dated 23 April 1992 * DA Form 67-8 (Officer Evaluation Report (OER)), dated 1 November 1991 and 28 June 1992 * Orders Number 142-142, dated 26 July 1993 * Orders Number D-08-855939, dated 31 August 1998 * Memorandum, Subject: Request for Age Waiver to Reappoint, dated 9 December 2010 * Army Board for Correction of Military Records (ABCMR) Docket Number AR20110000832, dated 18 October 2011 * Special Orders (SO) Number 219, dated 13 September 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 ABCMR 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: a. He received a commission as an officer in the U.S. Army National Guard (ARNG) on 25 May 1988. He attended and completed the Armor Officers Basic Course in 1991. He was promoted to the rank/grade of first lieutenant (1LT)/O-2, on 23 May 1992. He faithfully served in the ARNG until his unit was disbanded at which time he continued his service in the Individual Ready Reserve (IRR) effective 1 July 1993. While in the IRR, he completed two correspondence courses for the Armor Officers Advance Course. In addition, he began his Master’s degree in anticipation of future promotions. He graduated with his Master's Degree in July 1997. b. In March 1996, while in the IRR he received a notice stating he was passed over for promotion. It was unclear as to why he had been passed over, since all of his OER’s dating back to ROTC were exemplary. In addition, he was an ROTC distinguished military graduate, and was recommended for Regular Army at ROTC advance camp. He also served as a platoon leader, as well as an executive office in the Cavalry. At the time he received the promotion pass over notice, he was living in Arizona. He fervently searched the State looking for a U.S. Army Reserve (USAR) or ARNG unit to join in order to prevent the loss of his commission. However, due to the military cutbacks during this time, he discovered all the Army units (Reserve and ARNG) were well over 100 percent strength and they were not actively recruiting for officers or enlisted personnel. The only unit which was actively recruiting for enlisted personnel was the Arizona Air National Guard. Therefore, in order to prevent being passed over for a second time, he chose to join the Arizona Air National Guard in the grade of E-5. While in the Arizona Air National Guard, he received a second notice of being passed over, followed by a discharge from the U.S. Army. On 30 August 1999, he separated from the Arizona Air National Guard. c. In September 1999, he continued trying to find out why he had been passed over twice for the rank of CPT, without success. After September 2001, he repeatedly tried to get back into the Army as an officer; however, since his record showed he was passed over twice he was barred from being an officer again. After running into dead end after dead end, he decided to enlist in the grade of E-5 in the Ohio (OHARNG) on 9 March 2009; in an effort to just finish out his time in the military and retire as a lieutenant. d. In December 2010, he discovered the ARNG had failed to send in the Federal Recognition withdrawal when he went into the IRR in July 1993. Thus, all though he was placed into the IRR, he was still Federally Recognized in the ARNG, therefore due to no fault of his own he was not selected for CPT in 1996 due to this administrative error. The ARNG was aware of the administrative error in December 2010 and yet still failed to correct the error. It was not until he contacted the Board at which time they were instructed to correct the error. On 13 September 2011 the ARNG finally issued a back dated Federal Recognition withdrawal showing he had been transferred to USAR IRR. e. In August 2011, he was mobilized for deployment to Operation Enduring Freedom. Therefore, he was not permitted to be reappointed as a commissioned officer until he returned from deployment. After completing the deployment he took a commissioning physical in November 2012, however due to the onset of arthritis in his right knee he was not able to pass the physical. A couple months later, he suffered from several other health issues which resulted in retirement from the military. f. For 16 years (1996 to 2012) due to no fault of his own, his career as a commissioned officer in the military was derailed by the ARNG's administrative error. Had this unjust error not occurred he believes he would have been promoted to CPT and would not have attempted to save his commission by going into the Arizona Air National Guard or enlisting in the grade of E-5 in 2009 into the OHARNG. Currently his commissioned peer groups are Lieutenant Colonel (LTC)/O-5 and Colonel (COL)/O-6. Had he not suffered this administrative error he believes with his education background and commitment he would have reached the rank of at least a major. 3. A review of the applicant’s official records show the following on: a. On 25 May 1988, the applicant was appointed as a Reserve commissioned officer in the OHARNG in the rank/grade of second lieutenant (2LT)/O-1, and executed an oath of office. b. On 23 April 1992, Orders Number 79-39, issued by the Adjutant General’s Department, Columbus, OH, promoted the applicant to the rank of 1LT, effective on 23 May 1992. c. On 1 July 1993, the applicant was honorably released from the OHARNG and transferred to the USAR Control Group (Reinforcement). National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows in item 5a (Rank) 1LT. d. On 26 July 1993, Orders Number 142-142, issued by the Adjutant General’s Department, honorably released the applicant from the OHARNG and transferred him to the USAR Control Group (Reinforcement) by reason of resignation. e. The applicant’s records are void of any Federal Recognition withdrawal documents during this time. Likewise, it is void of documents showing he was a two- time non-select for promotion to CPT (as a result of the decision rendered in ABCMR Docket Number AR2011000832) f. DA Form 2-1 (Personnel Qualification Record) shows in item 35 (Record of Assignments) the applicant served in the OHARNG from on or about 2 July 1993 to on or about 11 November 1996 and in an enlisted status in the Arizona Air National Guard from 12 November 1996 – 30 August 1999. g. On 9 March 2009, the applicant enlisted in the OHARNG in the rank/grade of sergeant (SGT)/E-5. h. On 9 December 2010, the NGB issued a memorandum to the Adjutant General OHARNG that stated in pertinent part: (1) Under the provisions of National Guard Regulation (NGR) 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions), paragraph 2-7b, your request for a waiver to the maximum age limit for the appointment of the applicant in the OHARNG is approved if otherwise fully qualified. The State must conduct a Federal Recognition Board to determine eligibility for appointment. (2) Based on the service documents provided it appears the applicant was erroneously non-selected for promotion in 1998. He will remain ineligible for reappointment until either there is a correction of his military record or he obtains the Secretary of the Army's approval. (3) Additionally, his Federal recognition was not withdrawn upon his transfer to the USAR in 1993. To correct this error, the State should submit the request for withdrawal of Federal Recognition to the Federal Recognition Section. i. On 16 December 2010, the applicant petitioned the Board to have a non-selection of promotion removed from his record (ABCMR Docket Number AR20110000832). On 18 October 2011, the Board corrected the applicant’s records to show orders withdrawing his Federal Recognition effective 1 July 1993 were issued, and voiding his second non-selection to CPT. j. On 13 September 2011, SO Number 219, issued by the NGB, withdrew the applicant’s Federal Recognition effective 1 July 1993. k. On 26 November 2011, the applicant petitioned the Board to be reappointed as a CPT in the OHARNG effective March 2009. On 31 January 2013, the Board granted partial relief to correct his record to show he was reappointed in the OHARNG on 11 September 2011 in the rank of 1LT with a date of rank of 11 September 2010. His request for reappointment as a CPT was denied. l. On 15 January 2014, the applicant requested medical separation and transfer to the Retired Reserve due to receiving a permanent profile for a pulmonary emboli and being medically disqualified in accordance with Army Regulation (AR) 40-501 (Standards of Fitness). On 27 January 2014, by memorandum, the applicant was informed he was being transferred to the Retired Reserve based on his election. m. On 3 February 2014, Orders Number 034-911, issued by the Adjutant General’s Office, discharged the applicant from the OHARNG and reassigned him to the Retired Reserve by reason of medical retirement in the rank of SGT. n. On 25 January 2018, the Adjutant General’s Department issued the applicant a Notification of Eligibility for Retired Pay for Non-Regular Service (15-Year Letter) showing he completed 15 years but fewer than 20 years of qualifying service for application for retired pay at age 60. 4. The applicant provides: a. TRADOC Form 958-1 showing he was recommended for a Regular Army commission. b. Memorandum, Subject: Waiver of Academic Standing wherein the author granted a waiver of academic standing and designated him as a distinguished military student. c. DA Form 4609 showing his overall evaluation by his Professor of military science and the recommendation for a Regular Army commission and his he was deemed a distinguished military student. d. Recommendation for appointment of ROTC graduate as a Regular or Reserve commissioned officer of the Army showing the applicant met all of the qualifications for appointment as a commissioned officer. e. DA Form 1059 showing he attended and completed the Armor Officer Basic Course. f. DA Forms 67-8 showing the applicant was evaluated as a 2LT and 1LT platoon leader and always exceeded requirements and was recommended to be promoted ahead of his contemporaries. g. Orders Number D-08-855939, issued by the U.S. Army Reserve Personnel Command, St. Louis, MO, honorably discharged the applicant from the USAR effective 31 August 1998. 5. On 25 February 2020, the NGB reviewed the applicant's records and rendered an advisory opinion in his case. After a thorough review, the Chief, Special Actions Branch opined that: a. The applicant has requested to be reinstated as an officer effective September 1999 and to be promoted and retired as a CPT. He has submitted two previous requests to the ABCMR for consideration on this issue. Most recently the ABCMR rendered a 2013 decision that awarded him reinstatement as a 1LT; however, he was unable to meet the physical criteria to be reinstated. Due to medical issues he received a 15 year retirement in 2014. b. Based on the evidence provided in his previous cases and available in his personnel records, his initial request should be denied. He was initially a non-select for promotion while in the USAR. The USAR failed to properly discharge him upon his enlistment into the ARNG resulting in the second non-select. This non-select was voided by a previous ABCMR decision and he was allowed to be reappointed by the ARNG provided he could pass a physical. Unfortunately, he was unable to pass the physical and unable to be reappointed. While the situation is unfortunate, the ARNG has not committed any injustice against him. The applicant voluntarily resigned from the ARNG and after two stints in other military components, and a ten (10) year civilian break, he was unable to be reappointed. There is no way to fairly assess his performance compared to his peers over the course of his career due to the differing scopes of responsibility between him and his peer groups. Due to this, it is not recommended that he be granted promotion to or retirement as a CPT. c. It is the recommendation of their office that the applicant’s request be denied. His request cannot be reasonably or justly obtained. In addition, his claims of wrongdoing were not due to the actions of the ARNG. While he is not entitled to retirement as a CPT, he is projected to receive retirement pay at the grade of 1LT, which is accurate based on his service record. The NGB Officer Policy Branch and the OHARNG concurred with the recommendation. 6. With the advisory opinion the State provided: a. A memorandum from the State Adjutant General states in pertinent part, the State concurred with the Board’s recommendation but non-concurred with the reappointment date and date of rank determination. The applicant was on active duty through the Board recommendation date of 11 September 2011 assisting the 37th Infantry Brigade Combat Team for mobilization in support of Operation Enduring Freedom. He was released from active duty on 26 October 2012. His reappointment date would be no earlier than 27 October 2012, and his time in grade credit would be no earlier than 27 October 2011 based on his adjusted reappointment date. b. ARNG retirement points history statement shows the applicant’s output reason was for a 15-Year Letter and his highest held grade was 1LT. 7. On 2 March 2020, the applicant provided a rebuttal to the NGB advisory that states: a. Within paragraph b the NGB stated, "Soldier was allowed to be reappointed by the ARNG provided he could pass a physical. Unfortunately, he was unable to pass the physical and unable to be reappointed. While this situation was unfortunate the ARNG has not committed any injustice against the Soldier." The first two sentences are accurate and correct. However, to say the "ARNG has not committed any injustice to this Soldier" is inaccurate. This situation would not exist, were it not for the ARNG negligence. Had the ARNG submitted the required documentation when he was moved from the ARNG to the USAR this entire situation would not have occurred. According to the findings of ABCMR Docket Number AR20110000832 "The evidence confirms he requested resignation from the ARNG 1 July 1993, but the State failed to withdraw his Federal Recognition at the time. He was not selected for promotion to CPT during this period due to this administrative error." It was because of the ARNG's failure to submit the proper documentation in 1993 which set the stage for being passed over for CPT in 1996. b. The NGB also stated, "There is no way to fairly assess the Soldier's performance compared to his peers over the course of his career due to the differing scopes of responsibility between him and his peer group." He is currently serving in the USAR Retired Reserve and am not asking for a performance comparison to his peers. He already has OER(s) prior to 1996 which show he was rated above his peer group and recommended for promotion ahead of his contemporaries. In paragraph c the NGB stated, "his claims of wrongdoing were not due to the actions of the ARNG." The actions of the ARNG in 1993 are clearly the cause of the situation which we face today regarding his commission as an officer. Because of the ARNG's negligence, he spent over 10 years trying to figure out what he did wrong, only to find out in 2010 it was the ARNG who was at fault. Then, once the problem was identified, the ARNG refused to correct the problem and it took the Board’s intervention to force the ARNG to correct their error from 1993. If this was not enough, once the error was corrected, he was then instructed to take a commissioning physical 15 years after he had been passed over. At the time of being passed over he was 32 years of age and in good health. However, 15 years later, he had arthritis in his right knee which prevented him from passing his commissioning physical. In addition, at the time of the commissioning physical, he had just returned from a one year deployment with Operation Enduring Freedom. He does not understand how the NGB can justify stating, "wrong doing was not due to the actions of the ARNG." c. He has faithfully served in the military until he was physically unable to serve any longer. During the time of his service as a commissioned armor officer, he had received exemplary OER(s) and when transferred to the USAR, he took the initiative to begin correspondence courses for his armor officer's advance course. He also obtained a Master's Degree in organizational management in anticipation of future promotions in the military. By 1996, he had served as a 1LT for five years and was due to be promoted to CPT. However, due to no fault of his own, he was passed over for promotion. It was not until 14 years later, it was discovered that being passed over was an administrative error by the ARNG. This error de-railed his career as a commissioned officer in the military. Had the administrative error not occurred, the natural progression of his career would have led to his promotion to CPT in 1996. He is respectfully requesting the Board please consider the actions of the ARNG, and how those actions impacted him being passed over for CPT in 1996. 8. NGR 600-100: a. Paragraph 8 (Promotion for Other than General Officers) states the promotion of officers in the ARNG is a function of the State. A member must serve a minimum of 2 years in the rank of 1LT to be considered for promotion and Federal Recognition to CPT. The member must complete a resident Officer Basic Course. b. Paragraph 8-15 (Federal Recognition after Selection for Promotion as a Reserve of the Army) states an ARNG commissioned officer, not on active duty, who is selected for promotion as a Reserve commissioned officer of the Army resulting from mandatory consideration may be extended Federal Recognition in the higher grade when: * the officer has reached the promotion eligibility date * the officer has remained in an active status since the date selected for promotion * the officer is medically qualified in accordance with Army Regulation (AR) 40- 501 (Standards of Medical Fitness) * the officer is promoted in a State status to fill an appropriate position vacancy in the higher grade c. Chapter 10 (Federal Recognition Boards for Other than General Officers) states in order for an officer to be promoted, as a Reserve commissioned officer of the Army, the State action must be federally recognized. Federal Recognition action is the acknowledgment by the Federal Government that an officer appointed, promoted, or transferred to an authorized grade and position vacancy in the ARNG meets the prescribed laws and regulations. 9. AR 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) table 2-1 (Service Requirements) states for a member to be considered for promotion from 1LT to CPT a member must meet the following: * 1LT to CPT; 2 years as a 1LT when considered by a unit board * 1LT to CPT; 4 years as a 1LT, and 6 years of commissioned service when considered by a mandatory board 10. 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. 11. Title 10 USC 14308(f), amended as part of the FY19 NDAA (enactment date: 13 August 2018), provides the Secretary of the Army the authority to adjust the effective date of a reserve commissioned officer's promotion where undue delay in the Federal Recognition process has occurred. The FY19 NDAA also specifically states that the effective date of the amendment is the date of the enactment of the FY19 NDAA (i.e., 13 August 2018) "and shall apply with respect to promotions of officers whose State effective date is on or after that date." Therefore, this authority is only valid for promotions on or after 13 August 2018 (i.e., the enactment of the FY19 NDAA). 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, his record of service, transfer to the IRR by reason of resignation, his non-selection for promotion to CPT, his continued enlisted service in multiple components, his request for and notification of eligibility for non-regular retirement at age 60 and the reason for his separation. The Board considered the review and conclusions of the NGB advising official, the State input and the applicant’s rebuttal statement. The Board considered the previous ABCMR reviews and determination to reinstate him and the absence of timely USAR discharge upon his enlistment in the ARNG. The Board found insufficient evidence to support that the applicant’s non-selection to CPT was in error or unjust. The Board considered his medical condition that ultimately resulted in his separation. Based on a preponderance of evidence, the Board determined that the applicant’s rank upon retirement was not in error or unjust. 2. 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 : : : 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 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. NGR 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions): a. Paragraph 8 (Promotion for Other than General Officers) states the promotion of officers in the ARNG is a function of the State. A member must serve 2 years as 1LT to be considered for promotion and Federal Recognition to CPT. The member must complete a resident Officer Basic Course. b. Paragraph 8-15 (Federal Recognition after Selection for Promotion as a Reserve of the Army) states an ARNG commissioned officer, not on active duty, who is selected for promotion as a Reserve commissioned officer of the Army resulting from mandatory consideration may be extended Federal recognition in the higher grade when: * the officer has reached the promotion eligibility date * the officer has remained in an active status since the date selected for promotion * the officer is medically qualified in accordance with Army Regulation (AR) 40- 501 (Standards of Medical Fitness) * the officer is promoted in a State status to fill an appropriate position vacancy in the higher grade c. Chapter 10 (Federal Recognition Boards for Other than General Officers) states in order for an officer to be concurrently appointed, promoted, or receive a branch transfer as a Reserve commissioned officer of the Army, the State action must be federally recognized. Federal Recognition action is the acknowledgment by the Federal Government that an officer appointed, promoted, or transferred to an authorized grade and position vacancy in the ARNG meets the prescribed laws and regulations. 3. AR 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) table 2-1 (Service Requirements) states for a member to be considered for promotion from 1LT to CPT a member must meet the following: * 1LT to CPT; 2 years as a 1LT when considered by a unit board * 1LT to CPT; 4 years as a 1LT, and 6 years of commissioned service when considered by a mandatory board 4. 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. 5. Title 10 USC 14308(f), amended as part of the FY19 NDAA (enactment date: 13 August 2018), provides the Secretary of the Army the authority to adjust the effective date of a reserve commissioned officer's promotion where undue delay in the Federal Recognition process has occurred. The FY19 NDAA also specifically states that the effective date of the amendment is the date of the enactment of the FY19 NDAA (i.e., 13 August 2018) "and shall apply with respect to promotions of officers whose State effective date is on or after that date." Therefore, this authority is only valid for promotions on or after 13 August 2018 (i.e., the enactment of the FY19 NDAA). //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180004428 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1