ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 February 2020 DOCKET NUMBER: AR20190006729 APPLICANT REQUESTS: Correction to his military records to reflect the following: * change his effective date of rank to 19 January 2012 versus 19 June 2012 * compensation for Permanent Change of Station (PCS) travel and transportation allowance APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Author Letter * National Guard Bureau (NGB) Advisory Opinion (Adjusted) * Orders 180-1015 * Orders 261-039 * Email, Texas Army National Guard (TXARNG) G1 * Weight Estimator FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20160002256 on 17 October 2018. 2. The applicant states the following: a. On 17 October 2018, the ABCMR voted to “grant partial relief” from his application submitted on 6 January 2016 (AR20160002256). Of the three requests, one was fully granted, one was not granted, and the third request was not voted on at all (the Board thought the issue was already resolved – thus not needing a vote at all). b. He requested the Board correct his effective date of promotion to O5 and was denied. The Board cited in the advisory opinion, the National Guard Bureau (NGB) did not recommend a date in which to set as the effective date; however the adjusted advisory opinion acknowledged he was fully qualified for the rank and determined the orders placing me in the O5 position should be the effective date of his promotion c. He requested he be compensated for his final move he completed after his retirement which is clearly authorized and permitted in the Joint Travel Regulation (JTR) d. the Texas Army National Guard (TXARNG) immediately realized he was authorized the final move and informed either NGB or the Board that a memorandum had been written. He was instructed to contact the AGR (Active Guard Reserve) and transportation office at Camp Mabry to file for compensation which resulted in Camp Mabry transportation not having any idea of what he was talking about. They had no copy of the memorandum nor do they retain that type of information, they do not even process payments for residence moves. e. Next he contacted Fort Sam Houston (he moved just outside San Antonio ? so it is the closest installation). Fort Sam transportation office told him even with the memorandum, there are many things that would make the memorandum useless unless specific statements were contained in the memorandum – statements that TXARNG would not, nor could not have known at the time the memorandum was supposedly written. f. He next contacted the Texas Military Forces (Headquarters over both the Air National Guard of Texas and the Army National Guard of Texas) G1, he searched and combed through electronic files and there was no trace of the memorandum, then he contacted NGB to see if they had a copy of the memorandum mention in the advisory opinion, they could not find the memorandum. Per the transportation office, the document that is needed (orders or memorandum) will need to state the following: * the originally retired date and the new retirement date * the date the move was completed, the fact that the move is authorized for compensation and will be compensated * state the estimated weight calculator is authorized to determine/estimate weight moved * he was incorrectly denied an authorized move ? he did not, nor could he have contact and receive assistance and guidance on what was required from a transportation office * he originally retired on 30 September 2015 his retirement date was adjusted by the Board to 18 September 2016, he completed final household move on 15?18 July 2016 * the reason the Board did not vote on his request to correct the injustice on not being authorized a final move is because TXARNG told the Board and NGB that a memorandum had been written and he could file for compensation for his PCS move using the memorandum * he never received a copy of the memorandum either in my electronic files, at my old address, my new address or my home of record * attempts to obtain a copy have been unsuccessful at the Camp Mabry transportation office, the Headquarters of the Texas Military Forces, NGB and from the ABCMR 3. A review of the applicant’s records show: * 19 August 1988 – he commissioned as an officer in the TXARNG as an Infantry Officer * 19 August 1991 – he was promoted to First Lieutenant (1LT/O2) * 28 March 1997 – he was promoted to Captain (CPT/O3) * 7 January 2004 – he was promote to Major (MAJ/O4) * 6 January 2011 – he was promote to Lieutenant Colonel (LTC/O5) 4. The applicant provided the following: * NGB Advisory Opinion (Adjusted) – recommended a partial approval, retroactively reinstate the Soldier into the AGR program with an effective date of 1 October 2015, not to exceed established Mandatory Removal Date (MRD) of 1 February 2016, and pay travel expenses for PCS upon retirement (1 February 2016), and an effective date of promotion to be determined based on the decision of the Board * Orders 180-1015 – the applicant was slotted in an O5/LTC Inspector General (IG) positon effective date 19 June 2012 * Orders 261-039 – dated 18 October 2015 he was placed on retired list, retired grade of rank of MAJ/O3, effective date 1 October 2015 * Email, TXARNG G1 – showed the applicant requested the memorandum for his household goods move * Weight Estimator – 19,334 constructed weight 5. On 18 October 2019, the NGB corrected advisory opinion stated the following: a. requested an amendment to be generated to correct the date of rank (DOR) on the promotion order to O5; revocation of retirement orders and subsequent reinstatement into the Texas AGR Program, and in accordance with Joint Travel Regulations the applicant be authorized travel due to being placed on retirement orders b. recommended partial approval, retroactively reinstate the applicant into the AGR program with an effective date of 1 October 2015, not to exceed established Mandatory Removal Date (MRD) of 1 February 2016, and pay travel expenses for PCS upon retirement (1 February 2016). Effective date of promotion to be determined based on the decision of the Board. c. applicant stated he was forced to involuntarily resign from the AGR program and requests reinstatement. He explained he discussed with leadership his desire to continue his service in the Guard, but was unsuccessful. The applicant stated NGB, incorrectly and unjustly determined and then set the effective date of his promotion. He further states the DOR of 6 January 2011, on Special Order #188, dated 21 August 2015 is correct; it reflects the date he achieved maximum time in grade as an O4; however, the applicant contends the effective date of promotion on the order is incorrect. Army Regulation (AR) 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), section 4-21, states the effective date of promotion may not precede the date of the promotion memorandum. d. the applicant was placed in a higher graded position (O5) on 19 June 2012, he was removed from the position a month later, and was placed in an O4 position; subsequently documents showed he was placed back into an O5 position on 15 October 2014, based on documentation provided the applicant was eligible and recommended for promotion. TXARNG, in-house documents, show the intent of the State to promote the applicant to the rank of LTC. The documents showed he fell in Tier 2 of the State selection process. Those individuals in Tier 2 were to be promoted to LTC at date to be determined. e. Officers on the same Tier 2 list were effectively promoted to the rank of LTC well before the applicant on or about 25 January 2012 and 10 June 2013. f. applicant’s request regarding payment of travel when he PCS’s to his residence for retirement, TXARNG initially stated they did not grant this entitlement due to the applicant’s resignation from the AGR program; however documents showed the applicant involuntarily resigned. TXARNG Memorandum, NGTX-AH, dated 19 June 2017, showed the Soldier could contact the AGR Services Office at Camp Mabry, TX for assistance with any entitlements provided to him under Joint Travel Regulation 6. On 30 October 2019, the applicant responded to the NGB Advisory Opinion states: a. The NGB advisory opinion is wrong when it states his MRD was in February of 2016 – however that has been corrected, voted on by the Board and the decision is already being implemented by NGB, he is not sure why that date is wrong again on the newest opinion. b. The request for appeal on 28 May 2019 (AR20190006729), is for the two other injustices that he requested relief in his original submission. The NGB advisory opinion dated 18 October 2019, paragraph two entitled "Recommendation" - after saying to reinstate him into the AGR program and to move his retirement date the next issue addressed is his request to be paid PCS travel expenses when he retired. The opinion states that he should be paid for his final move associated with his retirement. He has spoken with the travel office that would be processing his paperwork (Fort Sam Houston) and have been instructed what MUST be on the orders to ensure the PCS move is processed and paid. c. The last issue addressed on the advisory opinion in paragraph two is the recommendation that his promotion date have an effective date of 15 October 2014. While this date does correct some of the injustice by the TXARNG, it does not address a key factor. The fact there are orders assigning him to a O5 position with an effective date of 19 June 2012, orders that have never been revoked, amended or been explained why they are not being used as the date setting the effective date of promotion. In the advisory opinion in paragraph 3.b. states that a set of orders placed him in a O5 position as of 19 June 2012. It goes on to say that those orders (#180- 1024) were changed a month later, and that is correct. The orders #180-1015 has never been revoked or amended and officially placed me in an O5 position with an effective date of 19 June 2012. With all the other information the same, the applicant questions why the date 19 June 2012 listed on orders #180-1015 is not used as the effective date of promotion. d. He stated he was the victim of Whistle Blower Reprisal by TXARNG. On 20 June 2017, TXARNG revoked his state promotion orders to LTC and then tried to revoke his federal promotion orders, which was rightly denied by NGB for lack of reason or proof. This revocation of orders took place two years after his retirement from the TXARNG, but immediately after TXARNG gained knowledge of his case with the ARBA reporting the injustices that were committed by them. He mentioned this to the ABCMR when he received the first advisory opinion from NGB (December 2017). Revoking orders, two years after a Soldier has retired, and immediately after being informed that the Soldier reported wrong doing is a text book example of Whistle Blower Reprisal. 7. See below for applicable REFERANCES. BOARD DISCUSSION: After reviewing the application and all supporting documents, the new evidence, and that facts above, the Board found the relief is warranted. Therefore, the Board determined the overall merits of this case are sufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20160002256 on 17 October 2018 to change the applicant’s effective date of rank to 19 January 2012, and to pay him travel expenses for PCS move upon retirement. ? 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 sufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20160002256 on 17 October 2018 to change the applicant’s effective date of rank to 19 January 2012, and to pay him travel expenses for PCS move upon retirement. 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 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), prescribes policy and procedures used in the selection and promotion of commissioned officers of the ARNG and the commissioned and warrant officers of the U.S. Army Reserve. a. Table 2-1 (Time in Grade Requirements for Commissioned Officers, Other Than Commissioned Warrant Officers) outlines the service requirements for promotion and indicates that for promotion to LTC, the maximum years in the lower grade is seven years. b. Table 2-2 (Military Educational Requirement Commissioned Officers, Other Than Commissioned Warrant Officers Grade) provides that for promotion from MAJ to LTC, the officer must have completed 50 percent of the Command and General Staff Officers Course. c. Paragraph 4-15, officers serving on active duty in an AGR status may be promoted to or extended Federal recognition in a higher grade provided the duty assignment/attachment of the officer requires a higher grade than that currently held by the officer. Effective date of promotion of AGR officers will be as shown in paragraph 4- 21 (Effective dates). AGR officers who have been selected for promotion and are not assigned/attached to a position calling for a higher grade will receive a delay of promotion without requesting such action. AGR officers will remain on the promotion list and serve on active duty in the AGR program until they are: * Removed from the promotion list under paragraph 3-18 (Removal from a selection list) * Promoted to the higher grade following assignment/ attachment to an AGR position calling for the higher grade. * Promoted to the higher grade, if eligible, following release from active duty d. Paragraph 4-18 (Date of rank and effective date of promotion after an involuntary delay), except as provided below (4-18c), only the Secretary of the Army is authorized to determine whether an officer was unqualified for promotion during any part of an involuntary delay of promotion. Accordingly, except as provided below, only the Secretary of the Army may determine whether an adjustment must be made to an officer’s date of rank and effective date of promotion. e. Paragraph 4-18c, the Human Resources Command, Chief, Office of Promotions (Reserve Components), is authorized to adjust the date of rank and effective date of promotion for an officer whose promotion has been delayed. This is only if the basis for the officer’s delay of promotion is as found in paragraphs (1) through (5) below, and a determination is made that the basis for delay no longer exists. Adjustment to the officer’s date of rank and effective date must be per the guidance established below. If the basis for an officer’s delay of promotion is not as established below, the determination regarding adjustment may only be made by the Secretary of the Army: (1) Noncompliance with the height/weight standards; then the date of rank and effective date will be the day the officer complies with the standards. (2) Failure to pass the most recent Army Physical Fitness Test (APFT) or failure to take and pass the APFT within the period required by pertinent regulation 350-1 because of the fault of the officer concerned. (3) Disciplinary action under Article 15 of the Uniform Code of Military Justice. (4) Any adverse administrative action. (5) The officer’s enrollment in and successful completion of the Army Drug and Alcohol Prevention Control Program. f. Paragraph 4-21, provides that the effective date of promotion may not precede the date of the promotion memorandum. An officer is promoted after selection if all qualifications for promotion are met. When an officer does not meet the qualifications for promotion, the effective date of promotion will not be earlier than the later date all qualifications are met. In no case will the date of rank or effective date of promotion be earlier than the date the board is approved, or, if required, the date of Senate confirmation. g. Paragraph 4-21d (Promotion of AGR officers), provides that AGR officers selected by a mandatory board will be promoted provided they are assigned/attached to a position in the higher grade. An AGR officer who is selected for promotion by a mandatory promotion board, but who is not assigned/attached to a position in the higher grade, will be promoted on the date of assignment/attachment to a higher graded position or the day after release from AGR status. The date of rank will be the date the officer attained maximum time in grade or the date on which assigned/attached to a position in the higher grade, whichever is earlier. 2. Army Regulation 140-10 (Army Reserve – Assignments, Attachments, Details, and Transfers), chapter 7, section I, provides, with some exceptions, for the separation of first lieutenants, captains, MAJs, and LTCs for maximum age and/or service. It specifies that Soldiers in this category may not exceed 28 years of commissioned service (the actual removal date will be 30 days after) if under age 25 at initial appointment or on their 53rd birthday if age 25 or older at initial appointment. 3. NGR 600-100, chapter 8, provides that the promotion of officers in the ARNG is a function of the State. As in original appointments, a commissioned officer promoted by State authorities has a State status in the higher grade under which to function. However, to be extended Federal recognition in the higher grade, the officer must have satisfied the requirements prescribed herein. 4. Volume 1 (Uniformed Service Personnel) of the Joint Travel Regulation (JTR) contains basic statutory regulations concerning official travel and transportation of members of the uniformed services. a. Paragraphs U5130, U5230, and U5365-F contain the policy and procedures pertaining to the shipment of HHG to a permanent duty station (PDS) by uniformed service personnel upon retirement. In effect, these paragraphs authorize a member travel and transportation allowances to a PDS selected by the member from his or her last PDS upon retirement. They state that a member on active duty is entitled to travel and transportation allowances to a home selected by the member from the last PDS upon retirement. They also establish time limitations for shipment of HHG and state that travel must be completed within 1 year from the active service termination date. b. Extension provisions to the 1-year time limit are also provided for deserving cases under the Secretarial process. This process allows for extensions based on an unexpected event beyond the member's control that prevents movement to a PDS within the specified time limit. An extension of the time limit may be authorized by the Secretarial process if it is in the best interest of the service or substantially to the benefit of the member and not costly or otherwise adverse to the service. These extensions are approved for the specific period of time that the member anticipates is needed to complete the move, and if additional time is required, the member may request a further extension. Paragraph U5012-I of volume 1 of the JTR provides the policy on restrictions to time limit extensions and states that a written time limit extension that includes an explanation of the circumstances justifying the extension may be approved for a specific additional time using the Secretarial process. However, extensions under this process will not be authorized if it extends travel and transportation allowances for more than 6 years from the separation/retirement date. These JTR provisions and time limitations for the shipment of HHG were also in effect at the time of the applicant's retirement. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20190006729 6 1