IN THE CASE OF: 

		BOARD DATE:  14 October 2022

		DOCKET NUMBER: AR20220001843


APPLICANT REQUESTS: 

*	Reinstatement in the Army National Guard (ARNG) or U.S. Army Reserve 
(USAR)
*	Promotion to Lieutenant Colonel (LTC)
*	Back date date of rank (DOR) to LTC to 2019
*	Personal appearance before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	Notification of Promotion Status, 8 January 2021
*	Notification of Promotion Status, 7 July 2021
*	Notification of Eligibility for Retired Pay
*	Inspector General (IG) Memorandum
*	Orders Number 0001656245.00, 8 February 2022
*	DA Form 5016 (Chronological Statement of Retirement Points)

FACTS:

1.  The applicant states, in effect:

	a.  He was not boarded for LTC in the primary zone. The requested corrective action 
is reinstatement in the USAR or ARNG (preferably in his current position) as LTC with 
DOR back dated to 2019, when he should have been boarded in his primary zone for 
LTC.

	b.  He was not boarded at the correct 2019 board and he also was not allowed a 
primary zone board in subsequent years. Then he was required to separate from the 
ARNG on 1 January 2022, based on this erroneous board process. 

	c.  He is in a low-density Area of Concentration (AOC) of 73B (Clinical Psychologist), 
has a spotless military record, and has numerous hard-to-obtain additional military 
certifications as well as an additional master's degree beyond the requirements for his 
AOC. 

	d.  This injustice has resulted in lost pay and professional opportunities for him, and 
it will be permanently removing one of the only fully operationally qualified psychologists 
in the entire ARNG, putting his unit and the ARNG at an operational deficit.

	e.  He was denied the opportunity to board for LTC within his primary zone in 2019 
because he was reportedly too close to transition from the Regular Army to the ARNG, 
even though the same board applies to both components and he was under contract for 
transition to the ARNG.

	f.  In 2020, he was erroneously board for LTC as above the zone. This again denied 
him the opportunity for primary zone consideration. He was not told that he had been 
erroneously boarded above the zone until after receiving the board results later in 2020. 
No reason was given for the non-selection except the note that it was not due to 
educational requirements.

	g.  The applicant, his S-1, and his chain of command all inquired about the reason 
for non-selection and the mistaken above zone categorization, but the U.S. Army 
Human Resources Command (HRC)/G-1 provided no further information or recourse.

	h.  In 2021, he was boarded as above the zone again, and non-selected again, with 
no explanation and no opportunity for primary zone consideration. This time, he was 
given a mandatory removal date of 1 January 2022.

	i.  Selection rates show that a packet boarded as above the zone has a far lower 
likelihood of selection. Being in the low density 73B AOC does not mitigate the 
significant disadvantage. To make matters worse, the failure to allow him to board within 
his own primary zone year group put him into later boards with a junior officer year 
group that was more overstrength than his own, further diminishing his chances of 
selection. The board memos are attached for both the above zone board, and the final 
reply from the IG investigation is attached for the Board's consideration.  

	j.  The original injustice took place when he was not afforded the opportunity to 
board in his primary zone for LTC in March 2019. Subsequent injustices took place in 
March 2020 and March 2021, when he was again denied a primary zone board.

	k.  The final injustice was discovered when he received the memorandum, dated 
7 July 2021, informing him of non-selection at the 2021 LTC board and directing him to 
separate on 1 January 2022.

	l.  This is unjust because board selection rates are vastly diminished for Medical 
Service officers boarding above the zone and further diminished by the overstrength 
year group he was pushed into, when he was not boarded in the primary zone in 2019. 

	m.  At the time of this submission, he is two to three years behind his year group for 
promotion to LTC, without ever having been afforded a primary zone board. 
Additionally, due to his critically short AOC, he was on a retention incentive contract 
locking him into the ARNG that was cut short by the board directive requiring him to 
separate prematurely in January 2022. 

2.  The applicant's service records contain the following documents for the Board's 
consideration:

	a.  On 14 January 2000, having had prior enlisted service in the Regular Army and 
the ARNG, the applicant was appointed as a Reserve commissioned officer and 
executed an oath of office in the rank/grade of second lieutenant (2LT)/O-1.

	b.  Orders Number C-03-007669, published by the USAR Personnel Command, 
dated 14 March 2000 mandatorily released the applicant from USAR Control Group 
(Annual Training) and assigned him to USAR Control Group (Reinforcement), effective 
14 March 2000.

	c.  Orders Number C-03-009257, published by the USAR Personnel Command, 
dated 31 March 2000 voluntarily reassigned the applicant from the USAR Control Group 
(Reinforcement) and assigned him to a unit, effective 31 March 2000. 

	d.  On 30 April 2001, DA Form 71 (Oath of Office) shows the applicant completed 
the oath of office as a Reserve commissioned officer in the Medical Service in the rank 
of 2LT.

	e.  On 28 March 2001, a DA Form 5074-1-R (Record of Award of Entry Grade Credit 
(Health Services Officers) shows the applicant was qualified for entry in the Army as a 
2LT.

	f.  On 14 July 2003, a memorandum from the USAR Personnel Command promoted 
the applicant to the rank/grade of first lieutenant (1LT)/O-2, effective 29 April 2003.

	g.  Orders Number B-08-606430, published by the U.S. Army Human Resources 
Command (HRC), dated 30 August 2006 shows the applicant was promoted to the 
rank/grade of captain (CPT)/O-3, effective on with a DOR of 7 August 2006.

	h.  Orders Number R-06-784530, published by HRC, dated 14 June 2007 ordered 
the applicant to active duty in an Active Guard/Reserve (AGR) status, in the rank of 
CPT, with a reporting date of 9 July 2007 for a period of three years. 

	i.  Orders Number 07-187-0001, published by Headquarters, 85th Division (Training 
Support) released the applicant from his current unit and assigned him to the USAR 
Control Group (AGR), effective 6 July 2007.

	j.  Orders Number R-06-784539A01, published by HRC, dated 4 Mar 2010 amended 
Orders Number R06784539 changing his active duty commitment from 3 years to 
indefinite, effective 4 March 2010.

	k.  Orders Number C-06-290463, published by HRC, dated 20 June 2012 released 
the applicant, in the rank of CPT, from active duty, effective 4 November 2012, and 
assigned him to USAR Control Group (Reinforcement).

	l.  Orders Number C-06-209145, published by HRC, dated 20 June 2012, reattached 
the applicant to Fort Knox, KY, for separation processing with a reporting date of 
24 September 2012.  

	m.  Orders Number B-09-205945, published by HRC, dated 26 September 2012, 
promoted the applicant to the rank/grade of major (MAJ)/O-4, effective on with a DOR of 
1 October 2012. 

	n.  On 4 November 2012, the applicant was issued a DD Form 214 (Certificate of 
Release or Discharge from Active Duty). The form shows he was in the USAR in the 
rank of MAJ. He was transferred to USAR Control Group (Reinforcement) and was 
honorably released for completion of required active service.

	o.  Orders Number C-03-304296, published by HRC, dated 22 March 2013 
reassigned the applicant, in the rank of MAJ, from the USAR Control Group 
(Reinforcement) because of appointment and assigned him to the USAR Control Group 
(Officer Active Duty Obligator (OADO)), effective 22 March 2013. 

	p.  Orders Number 12-1-A-113, published by HRC, dated 13 March 2014, appointed 
the applicant, as a MAJ, in the Regular Army effective upon execution of the oath of 
office.

	q.  Orders Number A-04-403957, published by HRC, dated 25 April 2014 ordered 
the applicant to active duty in the grade of MAJ with a reporting date of 3 June 2014.

	r.  Orders Number 241-001, published by HRC, dated 29 August 2014, announced 
the applicant's active duty DOR in the rank of MAJ as 1 October 2012.  
	s.  On 30 September 2015, the applicant received a DA Form 67-10-2 (Field Grade 
Plate Officer Evaluation Report (OER)), in the rank of MAJ, which shows he was 
proficient and highly qualified and had unlimited potential as a leader and clinical 
psychologist.  

	t.  On 21 July 2016, the applicant received a DA Form 67-10-2, in the rank of MAJ, 
which shows he was proficient and highly qualified, and states immediately select for 
promotion and continue to groom him for positions in healthcare leadership.

	u.  On 20 January 2017, the applicant received a DA Form 67-10-2, in the rank of 
MAJ, which shows he excelled and was most qualified. It states promote to LTC below 
the zone.

	v.  On 9 April 2018, the applicant received a DA Form 67-10-2, in the rank of MAJ, 
which shows he excelled and was highly qualified. It states promote to LTC below the 
zone.

	w.  Orders Number 011-0037, published by the Installation Management Command, 
dated 11 January 2019 reassigned the applicant, in the rank of MAJ, to the U.S. Army 
transition point releasing him from active duty, effective 21 July 2019. Orders Number 
043-0009, published by the same Headquarters, dated 12 February 2019 changed the 
unit the applicant was assigned to from the USAR Control Group (Reinforcement) to a 
unit in Alabama.

	x.  On 10 July 2019, the applicant received a DA Form 67-10-2, in the rank of MAJ, 
which shows he was proficient and highly qualified. It states he was in the top 10 
percent of Army Psychologists with whom his senior rater worked and promote ahead of 
peers.

	y.  On 21 July 2019, the applicant was issued a DD Form 214, which shows he was 
in the Regular Army in the rank of MAJ and was transferred to an ARNG unit. He was 
honorably released for completion of required active service.

	z.  A memorandum from HRC, dated 22 July 2019 shows the applicant was 
appointed as a Reserve Commissioned officer in the rank of MAJ.  

	aa.  Orders Number 205-584, published by the Joint Force Headquarters Alabama 
ARNG, dated 24 July 2019, appointed the applicant in the ARNG, in the rank of MAJ, 
effective 22 July 2019.

	bb.  Special Orders Number 36, published by the National Guard Bureau (NGB), 
dated 11 February 2020, shows the applicant transferred from the USAR, effective 
22 July 2019 in the rank of MAJ with a DOR of 1 May 2012.
	cc.  On 21 July 2020, the applicant received a DA Form 67-10-2, in the rank of MAJ, 
which shows he excelled and was highly qualified. It states promote ahead of peers 
now.

	dd.  On 21 July 2021, the applicant received a DA Form 67-10-2, in the rank of MAJ, 
which shows he was proficient and highly qualified. It states he was in the top 1 percent 
of all Army Medical Department officers with whom the senior rater served in his 23 
years of service. Promote ahead of peers.

	ee.  On 1 October 2021, the applicant received a memorandum from the Joint 
Forces Headquarters Alabama ARNG subject Notification of Eligibility for Retired Pay 
for Non-Regular Service (20 Years). 

	ff.  On 1 January 2022, the applicant received a DA Form 67-10-2, in the rank of 
MAJ, which shows he was proficient and highly qualified and remained in the top 5 
percent of officers within the group and promote ahead of peers. 

	gg.  On 1 January 2022, the applicant received an NGB Form 22 (Report of 
Separation and Record of Service), in the rank of MAJ, which shows he was honorably 
discharged from the ARNG because of Selective Qualitive Retention Action. He had 27 
years, 2 months, and 29 days total service for pay and 26 years and 3 months total 
service for retired pay.

3.  The applicant provides the following documents for the Board's consideration:

	a.  A memorandum from the Joint Forces Headquarters Alabama ARNG, dated 
8 January 2021, which states the applicant was not recommended for promotion by the 
fiscal year (FY) 20 mandatory selection board with no reason given. He would be 
considered again by the Department of the Army Board.

	b.  A memorandum from the Joint Forces Headquarters Alabama ARNG, dated 
7 July 2021, which states the applicant was non-selected for the second time by the 
Department of the Army Mandatory Selection Board. He would be removed from an 
active status on 1 January 2022.

	c.  A letter from the Office of the IG, dated 18 November 2021, which states, in 
effect:

		(1)  The letter was a final response to the applicant's 8 November 2021 complaint 
to the IG concerning promotion and mandatory removal date.

		(2)  They conducted a thorough inquiry and worked with the Deputy Chief of Staff 
Personnel to address the issue. In accordance with Army Regulation 600-8-29 (Officer 
Promotions) a warrant officer or commissioned officer twice non-selected for promotion  
would continue to be processed for separation. 

		(3)  They recommended the applicant submit an application to the Board for a 
decision regarding his promotion.

	d.  Orders Number 001656245.00, published by AUGOE Army Element Joint Force 
Headquarters, dated 8 February 2022, transferring the applicant to the Retired Reserve, 
effective 2 January 2022.

	e.  DA Form 5016 dated 7 July 2022, which shows he had 16 years, 3 months, and 
20 days qualifying for retirement.  

4.  In the processing of this case, an advisory opinion was obtained on 9 August 2022, 
from the HRC, Chief, Officer Promotions.  The advisory stated:

	a.  Based on a review of the documents received, current records, laws, regulation, 
policies, and the systems available to HRC Officer Promotions Branch, they found the 
applicant's request had not merit.

	b.  Promotion Selection Boards' zones of considerations are compiled for review and 
approved by the Army G-1 and the Secretary of the Army prior to announcement via 
Military Personnel message. While the applicant's decision to transfer from the Active 
Duty List to the Reserve Active Status List or vice versa, may have placed him in a 
different zone of consideration for promotion, he was not disadvantaged. He was 
considered as fully eligible in the correct zones of consideration based upon the 
approved zones of consideration and his DOR at transfer and thereafter; however, he 
was not selected.

	c.  Officers' records or board files are not labeled, separated, and/or presented in 
batch groups to voting board members as in zone, above zone, or below zone. In 
addition, promotion selection boards allow every officer the opportunity to submit 
correspondence to the President of the Board, and its members to address any issues 
he or she feels important, during consideration; failure for him or her to do so does not 
constitute material unfairness, a material error, or an unlawful or wrongful act. 

5.  The applicant was provided a copy of this advisory opinion in August 2022, to 
provide him an opportunity to comment and/or submit a rebuttal. He responded on 
31 August 2022, in part:

	a.  Placing an officer in a different zone of consideration is an inherent disadvantage 
because it delays their promotion eligibility for an entire additional year. Moreover, while 
that officer may be fully eligible in the sense that the packet still makes it to the board, 
they now have a DOR that only other officers who were passed over would have. In his 
case, he had not been passed over or even boarded in the primary zone by the time he 
was boarded above the zone. However, it looked to the board as though he had been 
passed over, due to his DOR being much earlier than others receiving their primary 
zone consideration. That would certainly bias the board.

	b.  Additionally, his officer record brief (ORB) was wiped out upon transfer from the 
Regular Army to the ARNG. He spent innumerable hours with his unit S-1, training 
team, and other resources restoring everything possible, but at the time of the board, it 
was still missing pieces that had been entirely accurate when he left the Regular Army. 
To the advisory's comment about correspondence, they did submit correspondence to 
explain the Army data system failure and identifying the missing information on his 
ORB. It was impossible for him to submit correspondence about being boarded above 
the zone because he did not know that was happening until he was informed months 
after the board had taken place.

	c.  Notably, that same year (which should have been his delayed primary zone 
board) the Army inexplicably also tried to board him for another (incorrect) USAR board 
even though he was in the ARNG. As soon as they were told (last minute) that this was 
happening, his unit and he did everything possible to verify that his packet was going 
only to to the correct board. They never received confirmation that it had gone to the 
ARNG board until afterward. This may not be relevant to the case at hand if all pertinent 
data went to the correct board, but if the correct data did not make it to the correct 
board, it would be highly relevant. They requested to see the packet the board had 
received, but no one was willing to share that. From what they could see at the unit 
level, they have strong reason to suspect that there were numerous material errors. 
They know for a fact that there were errors in the ORB due to the Army data system 
failure. They also know that there were errors in processing the packet for the correct 
board. They just do not know what other errors may have existed in the packet that the 
correct board saw.

	d.  In summary, in addition to the material errors noted above, the material 
unfairness was that his packet was not allowed to board in his primary zone, which 
caused it to go to a board where the DOR was at the absolute extreme earlier of the 
packets being considered. The advisory's comment about batching is irrelevant in this 
respect. The board members see the DOR and his was at the extreme by the time he 
was allowed to board, putting him at a disadvantage relative to the rest of the group, 
even if there had not been the aforementioned errors. Board outcome data clearly show 
that the Medical Service Corps officers boarded above the zone have a vastly lower 
likelihood of selection than those boarded in the zone and regardless of batching, his 
DOR made it appear as though he was one of those officers who had already had his 
shot in the primary zone, when he had not.  

BOARD DISCUSSION:

After reviewing the application, all supporting documents, and the evidence found within 
the military record, the Board found that relief was not warranted. The applicant’s 
contentions, the military record, and regulatory guidance were carefully considered. The 
Board reviewed and agreed with the advisory official’s finding that although the 
applicant's decision to transfer from the Active Duty List to the Reserve Active Status 
List or vice versa, may have placed him in a different zone of consideration for 
promotion, he was not disadvantaged. He was considered as fully eligible in the correct 
zones of consideration based upon the approved zones of consideration and his DOR 
at transfer and thereafter; however, he was not selected. The Board found no error or 
injustice. 

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.1. 

		  
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) in effect at the time states in:

	a.  Paragraph 2-5 (Eligibility for consideration) to be eligible for consideration for 
promotion to the next higher grade, an ARNGUS or USAR officer must have 
continuously performed service on either the Reserve Active Status List or the Active 
Duty List (or a combination of both lists) during the 1– year period ending on the 
convening date of the promotion board, and must meet the time in grade requirements 
in tables 2-1 or 2-3, as appropriate. b. ARNGUS and USAR officers will be considered 
for promotion in their competitive category only: Army Promotion List (APL, to include 
Judge Advocate); Chaplains (CH); Army Nurse Corps (AN); Dental Corps (DC); Medical 
Corps (MC); Medical Service Corps (MS); Army Medical Specialist Corps (SP); and 
Veterinary Corps (VC).

	b.  Paragraph 2-10 states, mandatory selection boards will convene each year. 
These boards will consider ARNG and USAR officers for promotion to CPT through 
LTC. These boards will consider officers for promotion without regard to vacancies in 
the next higher grade. Below the zone consideration. The Secretary of the Army (SA) 
may, when the needs of the Army require, authorize the consideration of officers for 
promotion to the next higher grade from below the promotion zone. (1) Selection boards 
considering officers for promotion to MAJ, Lieutenant Colonel, or Colonel may 
recommend outstanding officers from below the zone of consideration. The 
Memorandum of Instruction (MOI) will state the number of officers who may be selected 
for promotion from below the promotion zone. The number of officers recommended for 
promotion from below the promotion zone may not exceed 10 percent of the total 
number recommended, except that the Secretary of Defense may authorize that 
percentage to be increased to not more than 15 percent. (2) Below the zone promotions 
are a part of the mandatory Reserve of the Army promotion system. They are intended 
to provide officers of exceptional ability an opportunity to advance quickly to more 
responsible positions, help retain high quality officers, and give officers an incentive to 
perform at their highest potential. (3) The board may recommend officers from below 
the zone, within the number established by the SA in the MOI, who have the qualities 
and potential to warrant early promotion. Officers selected from below the zone must be 
truly outstanding and clearly superior to those who would otherwise be selected from in 
or above the promotion zone. (4) Since only a few officers may be selected for 
promotion from below the zone of consideration, failure to be selected will neither count 
as a nonselection, nor reflect unfavorably on an officer.

	c.  Table 2-1 (Time in Grade Requirements commissioned officers, other than 
commissioned warrant officers) states for promotion to LTC the Soldier must have a 
minimum of 4 years time in grade and a maximum of 7 years time in grade.    
	d.  Paragraph 4-21 (Effective Dates) the effective date of promotion may not precede 
the date of the promotion memorandum. In no case, will the DOR or effective date of 
promotion be earlier than the date the board is approved, or, if required, the date of 
Senate confirmation.

2.  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. 

3.  Title 10, United States Code, section 14104 (Nondisclosure of board proceedings) 
states. the proceedings of a selection board convened under section 14101 or 14502 of 
this title may not be disclosed to any person not a member of the board, except as 
authorized or required to process the report of the board. This prohibition is a statutory 
exemption from disclosure, as described in section 552(b)(3) of title 5. (b)Prohibited 
Uses of Board Discussions, Deliberations, Notes, and Records.—The discussions and 
deliberations of a selection board described in subsection (a) and any written or 
documentary record of such discussions and deliberations—

*	are immune from legal process;
*	may not be admitted as evidence; and
*	may not be used for any purpose in any action, suit, or judicial or administrative 
proceeding without the consent of the Secretary of the military department 
concerned

4.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for 
correction of military records by the Secretary of the Army, acting through the ABCMR. 
The ABCMR may, in its discretion, hold a hearing or request additional evidence or 
opinions. Additionally, it states in paragraph 2-11 that 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.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20220001843


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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