IN THE CASE OF: BOARD DATE: 16 February 2023 DOCKET NUMBER: AR20220007240 APPLICANT REQUESTS: * correction of his service record to reflect that he was never passed over twice for promotion to the rank/grade of major (MAJ)/O-4 * personal appearance before the Board via video or telephonic APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored statement * DD form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (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 in effect, he requests that his service records be corrected to reflect that he was never passed over for promotion to the rank of MAJ/O-4. He should not have been passed over for promotion as he left the Army with an honorable discharge in 1982. He entered the service as a first lieutenant (1LT)/O-2 and was promoted to the rank of captain (CPT)/O-3. He was stationed at Fort Sam Houston, TX and Aberdeen Proving Grounds, MD. He was first in his class when he graduated the Army's Medical Technology Program at Fort Sam Houston. He was awarded the Army Commendation Medal on two occasions. a. He was honorably discharged to attend the Philadelphia College of Osteopathic Medicine and graduated in 1986 and continued his education through internship, residency, and fellowships in the Philadelphia area. He became board certified in pathology by the American Board of Pathology. b. About 1997 to 1998, he attempted to join the U. S. Army Reserve, but was told he was a twice passed over for promotion to the rank of MAJ. He explained to his recruiter that was impossible because he had not been in the military since 1982. He contacted his Congressman and was advised his service records were destroyed in a fire in Saint Louis, MO. He offered to provide his service records, but the Congressman's office stated they spoke to the military and they are never wrong. About the same time, he found out he was a victim of identity theft over a period of 15-years, where someone filed for bankruptcy in his name in a city that he never lived or been to. He was able to rectify the identity issue but was unable to correct his service records to reflect that he was never passed over for promotion. When someone is passed over for promotion, they must leave the service and receive severance pay. Did the person who was using his identity get his severance pay. He would like his service records corrected to reflect he was never passed over for promotion to the rank of MAJ. 3. Review of the applicant's service records shows: a. The applicant was appointed as a Reserve commissioned officer of the Army on 25 August 1977 in the rank of second lieutenant (2LT)/O-1. DD Form 214 shows the applicant was ordered to active duty on 6 October 1977. b. On 2 January 1980, Orders Number 2-1 issued by the U. S. Army Military Personnel Center, promoted the applicant to the rank of CPT/O-3, effective in with a Date of Rank of 19 February 1980. c. On 15 March 1982, Orders Number 41-2080 issued by the U. S. Army Military Personnel Center, promoted the applicant to the rank of CPT/O-3, effective 15 March 1982 with the DOR of 19 February 1980. Additional instructions stated Defense Officer Personnel Management Act (DOPMA) transition promotion and had no effect on current pay and entitlements. d. On 15 July 1982, Orders Number 136-19 issued by the U. S. Army Aberdeen Proving Grounds, relieved the applicant from active duty, effective 18 September 1982 and assigned him to the U. S. Army Reserve (USAR) Control Group (Reinforcement). The applicant had a military selective service act obligation until 29 September 1983. e. On 18 September 1982, the applicant was honorably released from active duty and assigned to the USAR Control Group (Reinforcement). DD Form 214 shows the applicant completed 4-years, 11-months, and 13-days of active service. The applicant's effective date of pay grade was 19 February 1980 and he had a reserve obligation termination date of 29 September 1983. f. On 22 June 1990, the applicant was notified he was non-selected for promotion after a second consideration, and he had a mandatory removal date of 19 September 1990. g. On 15 August 1990, Orders Number D-08-052525, issued by the USAR Personnel Center, honorably discharged the applicant from the USAR, effective 19 September 1990. 4. On 27 October 2022, in the processing of this case, the U. S. Army Human Resources Command, Chief, Officer Promotions Board Announcements, Support and Promotion Orders, provided an advisory opinion regarding the applicant's promotion status and the correction of the non-selection for promotion. The advisory official stated the promotion board documents were not available for review. It could only be speculated given the discharge order from the Ready Reserve effective 19 September 1990, he was placed in the Ready Reserve to complete his remaining service or contractual obligation. This would have allowed him to be considered for promotion upon reaching the minimum time in grade and criteria established for the promotion selection boards in question. This would explain his record being coded as a two time non-select. 5. On 3 November 2022, the Army Review Boards Agency, Case Management Division, provided the applicant a copy of the advisory opinion for review and comment. 6. On 13 November 2022, the applicant responded to the advisory opinion and stated in part: a. First, when he signed his contract with the U.S. Army, it stipulated that he had a 6-year military obligation that consisted of a minimum 3-year active duty and a 3-year inactive reserve. He served on active duty for approximately 5 years and had only a one-year inactive reserve duty obligation. This can be seen on his DD Form 214 which shows that reserve obligation termination date was 29 September 1983. He had no further service obligation past that date. It appears that the individual(s) that reviewed his case did not look at the most important document, his DD Form 214. With his paperwork, he sent the Board his DD Form 214. Army Regulation (AR) 635-5 (Separation Documents) dated 12 September 2000, (page 5) states the following about section 12i on DD Form 214: "Reserve Obligation Termination Date. This is the completion date of the statutory Military Service Obligation (MSO) incurred by a Soldier on initial enlistment or appointment in the Armed Forces." b. Furthermore, his contract (DA Form 3574—Certificate of Acknowledgement and Understanding of Service Requirements for Individuals Applying for Appointment in the USAR under the provisions of AR 135-100 (Appointment of Commissioned and Warrant Officers of the Army), AR 135-101 (Appointment of Reserve Commissioned Officers for Assignment to Army Medical Department Branches) or AR 601-139 (Appointment as, and Active Duty for, Reserve Commissioned Officers for Assignment to the Army Nurse Corps and the Army Medical Specialist Corps) as applicable individuals under 26 Years of Age Without Prior Service) that he signed on 9 May 1977 (copy available upon request), under certification, item 1 states: "he would incur a statutory MSO of 6 years commencing with the effective date of appointment." "Upon satisfactorily completing a total of 5 years of combined active duty, unit and/or Individual Ready Reserve service, he will be eligible for transfer to the Standby Reserve for the remainder of his service obligation and will be so transferred unless he elected to remain in the Ready Reserve." c. When he was discharged from the Army, with a separation date of 18 September 1982, he was placed in the inactive reserves for one year. He was never placed in any other reserve status, nor did he elect any other reserve status. He received a card from the Army (Department of Defense) that he was on inactive reserve until September 1983. He never said nor signed anything that stated he wanted to remain in the Ready Reserve or any other reserve status beyond September 1983. Accordingly, his service obligation was completed in September of 1983. d. Please immediately provide a copy of the Ready Reserve discharge orders that are cited, supposedly effective 19 September 1990, including the address to which they were sent. Based on his communications and orders, he had no military obligation whatsoever after 1983. There was no obligation to complete any remaining service or contractual obligation past September 1983. e. It is totally improper for the Army to "speculate" about what happened, contrary to the only available documents (his discharge papers). Yet it appears the Army is again assuming the 1990 documents (which have never been provided to me) are accurate. Since he completed all his contractual obligations to the Army, any documents dated after 1983 would seem to be invalid because he did not have any remaining service obligation or contractual obligation, and he does not even know if the Army had his then current address. Also, the sequence of the events that the Army "speculates" about does not make any sense. He became a CPT in early 1980. He received an Army Commendation medal while he was at Brooke Army Medical Center and at Aberdeen Proving Ground (after he signed and was given his DD Form 214—Headquarters, United States Army Health Services Command, Permanent Orders Number 69-1, dated 30 June 1982, first oak leaf cluster). He received a certificate appreciation/achievement for his work at Fort Chaffee, AK, for setting up a medical laboratory for the Cuban Refugees in 1980. Despite these commendations, however, there was no way he was up for promotion for MAJ by 1983, just three years after his promotion to CPT. But he was discharged and without any remaining connection to the Army starting in 1983. f. The reference in the letter to the possibility that his Army records had been destroyed in a fire is also misstated. He did not come up with that information; rather, this was something that was indicated to him by his then-Congressman after he raised this issue with his office. If the timing on that is incorrect, that is simply another bit of misinformation that seems to have emanated from the Army. In short, there is no indication that he was ever even considered for MAJ, let alone passed over, let alone passed over twice. Was there monetary compensation for being twice passed over? If so, he never received it. g. Given the strong indications that the Army's version of events is wrong, he would like to speak with the individual that issued this Memorandum. Please let him know how he can contact that person. He also plans to send a copy of this email as well as the memorandum to his Congresswoman, the Honorable although he would prefer not to bother her about something that the Army should be able to correct. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found relief is not warranted. The Board found the available evidence sufficient to consider this case fully and fairly without a personal appearance by the applicant. 2. The Board noted the applicant was not discharged in 1982, rather he was relieved from active duty and transferred to the USAR Control Group (Reinforcement) to complete his military service obligation. The applicant should note that officers are not automatically discharged from the USAR when they complete their obligated period of service. Unlike enlisted members, an officer must resign, which it appears the applicant did not do, resulting in him continuing to have a status in the USAR until his discharge in 1990. 3. While he was not actively serving, he was still a Reserve officer, and in his status in the USAR, he would been considered for promotion to the next higher grade when he became eligible for consideration. The record confirms he was not selected twice, and as a result he was discharged as required by law. Based on a preponderance of the evidence, the Board determined there is no error or injustice in the fact that the applicant’s record shows he was twice non-selected for promotion to MAJ/O-4. ? 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. 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. AR 135-155 (Army National Guard and Army Reserve Promotion of Commissioned Officers and Warrant Officers Other Than General Officers, in effect at the time, prescribes policy and procedures used in the selection and promotion of commissioned officers of the Army National Guard. of the United States (ARNGUS). a. Paragraph 2-4 (Eligibility for consideration), to be-eligible for consideration for promotion to the next higher grade, an ARNGUS or USAR officer must be in an active status and meet the service requirements. b. Paragraph 2-5 (Selection Criteria), b. Officers who have not completed their statutory MSO will be considered to be participating satisfactorily. This applies to officers assigned to Ready Reserve Control Groups listed in AR 140-1, paragraph 2-15, or Control Group. (Standby) if they comply with all of their Commander's instructions. c. Paragraph 4-27 (Mandatory consideration non-selection policy), a. (First non- selection), An initial non-selection for promotion to the next higher Reserve grade will constitute a first pass over for promotion. This will be to any grade other than W-2, ILT, and Colonel. An officer remaining in an active status following a first pass over will again be considered for promotion by the next regularly scheduled board considering that grade and branch. b. (Second non-selection), An officer who twice fails to be selected for promotion to the grade of W-3, W-4, CPT, MAJ, or LTC will not be considered again for promotion. d. Paragraph 4-30b, an officer who twice fails to be selected for promotion to grade W-3, W-4, CPT, MAJ, and LTC will not again be considered for promotion. Officers on extended Active Duty will be removed within 120 days after being notified on their second non-selection. All other officers not qualified for retention (paragraph 4-29) will be removed from an active status within 90 days after the selection board submits its results to Headquarters Department of the Army. USAR officers will be transferred to the Retired Reserve (AR 140-10, paragraph 7-4), or discharged (AR 135-175, paragraph 4-4). 3. AR 135-175 (Army National Guard and Army Reserve Separation of Officers), in effect at the time, prescribes the policies, criteria, and procedures governing the separation of Reserve officers of the Army. Paragraph 4-4 (Removal from active status) a (5) (Non-selection for promotion after second consideration), an officer in the grade specified below, who has completed his statutory MSO, will be discharged for failure to be selected for promotion after second consideration by a DA Reserve Components selection board. (b) A first lieutenant, CPT, or MAJ (AR 135-155) (Title 10, USC, section 3846). 4. Title 10, USC, chapter 363 ( Separation Or Transfer To Retired Reserve, Section 3846, (First lieutenants, CPTs, and MAJs not recommended by two selection boards), except as provided in sections 1005 and 1006 of this title, an officer in the reserve grade of first lieutenant, CPT, or MAJ who, while serving in the reserve grade that he then holds, was considered but not recommended for promotion by two selection boards convened under section 3366 or 3367 of this title, shall, within 90 days after the second selection board submits its report to the convening authority if he is not on active duty or is on active duty for training, or within 120 days after being notified of his failure of selection by the second selection board if he is on active duty (other than for training). (1) be transferred to the Retired Reserve, if he is qualified and applies therefor; or (2) if he is not qualified or does not apply therefore, be discharged from his reserve appointment. 5. AR 135-90 (Service Obligations, Methods of Fulfillment, and Enforcement Procedures) in effect at the time states a statutory obligation imposed by Title 10, USC, section 651 upon men under 25 years of age who become members of the Armed Forces after 9 August 1955, to serve on active duty and/or in a Reserve component for a period of 6-years unless sooner discharged. Officers who complete 4 years of active duty will be assigned to the Control Group (Standby). These officers may volunteer for assignment to the Ready Reserve. Physicians who are initially appointed prior to their 26th birthday fulfill their statutory service obligation by serving on active duty participating satisfactorily in the Reserve; or a combination thereof. When active duty is performed, the combined active duty and Ready Reserve service must total 5 years before the officer is eligible for transfer to the Standby Reserve. 6. AR 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 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) AR20220001717 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1