IN THE CASE OF: BOARD DATE: 24 March 2021 DOCKET NUMBER: AR20200007024 APPLICANT REQUESTS: reconsideration of her previous request to: * promote her to the rank/grade of Colonel (COL)/O-6 with an effective date of 7 February 2013 * back pay of all pay and allowances for four years * retroactive retirement effective 1 December 2015 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Orders Number B-02-801261, dated 25 February 2009 * Memorandum, Subject: Out-processing Procedures for the 311th Signal Command (Draft), dated 15 March 2009 * Orders Number 09-244-00006, dated 1 September 2009 * Memorandum, Subject: Shaping the Force – Eliminating Senior Grade Overstrength * DA Form 5016 (Chronological Statement of Retirement Points) * Orders Number 11-048-00088, dated 17 February 2011 * Orders Number D-03-505755, dated 23 March 2015 * Email correspondence * National Personnel Records Center (NPRC) letter, dated 3 November 2016 * Assignment history 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 AR20170006153 on 24 October 2019. 2. The applicant states: a. She was involuntarily discharged from the U.S. Army Reserve (USAR) by being denied various positions that she applied to and was well qualified for, promotion to COL, and subsequently denying her to remain within the USAR to retire with full honor and benefits. b. She served honorably from 3 May 1987 to 1 December 2015; as a commissioned officer within the USAR. The following information and documentation will show that this denial of a position was done with discriminatory animus, where others were not treated the same as her, again denying her the privilege to retire with full benefits that she earned/deserved. Lastly, during her military service she experienced Post Traumatic Stress Disorder, among other, service-connected disabilities. c. She was assigned to the 311th Theater Signal Command from September 1998 through August 2009. In 2009, she began searching for a valid 42H (Senior Human Resources Officer) Military Occupational Specialty (MOS) Lieutenant Colonel (LTC)/O-5 position in a unit because her losing detachment at Fort Meade, MD, was inactivated in 2009 due to the USAR Command (USARC) Army Reserve transformation shaping the force which became effective 30 January 2009. Also, in 2009, she had a phone conversation with LTC P- about a senior officer 42 MOS position at the Legal Command. LTC P- stated that she could not place her into that position; however, she was going to send her the contact information for the Army retention program points of contact within the District of Columbia area. d. The Army Reserves career counselor, Sergeant First Class (SFC) W- assisted her in transferring into a Troop Program Unit (TPU) at the 1st Army Division East, Fort Meade, MD, effective 1 September 2009. However, when she reported to the unit, she was unassigned due to the transition of the unit and restructuring of the unit manning report to include USARC shaping the force-eliminating senior grade over strength. From September 2009 to April 2011; USAR career counselors, Master Sergeant (MSG) P-, SFC D-, and SFC M- had been assisting her in finding a valid 42H LTC position in a unit. In addition, she contacted USARC, LTC P-, Chief, Officer Branch, to assist her in finding a 42H LTC TPU position in a unit. LTC P- referred her to the USAR career counselors which she had already established communication with in seeking a TPU position within a unit. During that time frame, SFC D- stated that two 42H LTC positions were open, one at the Military Intelligence Readiness Command (MIRC) at Fort Belvoir, Virginia and one at the USAR Legal Command in Gaithersburg, MD. She contacted the MIRC, G 1, COL V- and LTC S- requesting a transfer to paragraph 008A, line number 01 position number 0825 and emailed her biographical summary, last two Officer Evaluation Reports (OERs), and her DA Form 4651 (Request for Reserve Component Assignment or Attachment), dated 22 June 2010. After emailing and waiting for a response from the MIRC, G 1, COL V- responded to her email on 28 July 2010, stating "she is not able to offer her a position due to the G-1 state of transition and her just coming on board". She in turn, contacted the USAR Legal Command, G-1, COL S- and LTC B- requesting a transfer to paragraph 007, line number 01 position number 0090. She emailed her biographical summary, last two OERs, and DA Form 4651 on 29 July 2010. When she did not get a reply, she emailed COL S- on 12 September 2010 inquiring about the status of her request. COL S- responded to her email stating that "he has forwarded my information to LTC B- and the G-1, COL K-." On 4 October 2010, LTC B- emailed her stating that the G-1, COL K- was reviewing her information. She still did not get a response from the USAR Legal Command in regards to the status of her request. The career counselor, SFC D- made several attempts to contact the USAR Legal Command about her request to transfer into the position to include sending emails without any response. In addition, SFC D- went to the USAR Legal Command seeking a response and was told by the USAR Legal Command Unit Administrator (UA) that "she was not aware of her requests". During her phone conversation with SFC D-, she told her that the UA of the USAR Legal Command stated that the position had been filled. e. On 6 October 2010, she received notification giving her until 15 October 2010, to find a valid position or she would be placed into the Individual Ready Reserve (IRR) effective 1 December 2010 from the G-1 and Headquarters and Headquarters Detachment, USAR Support Command, 1st Army Division East. f. On Friday, 1 April 2011, she called the G-1, USAR Legal Command and spoke to the LTC (MOS 70H (Medical Operations Officer) who had filled paragraph 007, line number 01 position number 0090. He stated that he had been in position for three months. He had requested a transfer to paragraph 007, line number 01 position number 0090 since late 2010. He stated, "he is well qualified for the position because he was mobilized". In addition, he stated "he has been trying to get USARC to move the position from the vacant list because he has filled the position". On 3 April 2011, she emailed USARC, LTC P- and explained to her about the vacant 42H MOS slot, paragraph 007, line number 01 position number 0090 at the USAR Legal Command and requested to be transferred into this valid position that was still vacant. On 4 April 2011, LTC P- emailed the USAR Joint and Special Troops Command (USARJSTC), G-1 to explain to her what was going on with the position in question. When the USARJSTC, G-1 did not reply, she emailed LTC P- requesting her to transfer her into the position. LTC P- told her that she cannot transfer her into that position and to contact Major (MAJ) R-, USARC, G-1, to send her a list of vacant LTC positions. She contacted MAJ R- requesting the list of vacant LTC positions and he stated that he would send her the email. She never received the list and continued to follow-up to have her issues addressed. After being involuntarily transferred into the IRR, she received an email from SFC M-, stating that the USAR was seeking prior service members to be transferred into a TPU with one of the Reserve units in the Tri-State Region and to contact her. She emailed SFC M- and stated that she was still interested in finding a LTC TPU position within a unit. SFC M- emailed her a list of all available 42 MOS LTC TPU positions in the Tri-State Region area. On the list was the USAR Legal Command again and two new available LTC TPU positions that were open at Fort Belvoir. The two new available LTC positions was 01A Officer Generalist in the 80th Regiment Battalion Headquarters at Fort Belvoir. She emailed SFC M- to request a transfer into one of the 01A Officer Generalist positions. On 27 April 2011, SFC M- emailed LTC H-, USAR 316th Expeditionary Sustainment Command to let him know that she was interested in one of his 01A Generalist positions and to contact her. She did not receive a response from LTC H-. However, on 27 April 2011, she did receive an e-mail from SFC M- stating that it would be hard to get a LTC TPU position at Fort Belvoir and that the 78th Training Division had 01A officer slots in the G-3 available. When SFC M- gave her the contact information, she in turn contacted LTC O-, 78th Training Support Division, G-3, and emailed him her information requesting a LTC position. LTC O- had given her information to the G-3, COL N- and stated that "they will be contacting me soon to let me know the status". Unfortunately, this game of cat and mouse continued to no avail for years. g. From being assigned to the IRR effective 1 March 2011 from the USAR Support Command 1st Army Division East until being involuntarily discharged on 1 December 2015, she continued diligently to attempt to be placed in many positions that she was well suited for within her MOS. However, these positions that she was well qualified for, continued to remain vacant without any valid justification to why she could not be placed in them, or was filled with persons that were not qualified based on the required MOS. She was considered for the Calendar Year (CY) 2012 and CY 2013 COL Promotion Selection Board (PSB); however, this board was delayed until CY 2015. On 13 May 2015, she was notified as an Army Reserve LTC in the zone of consideration by the CY 2015 COL PSB, and that due to the delay in the release of the Fiscal Year 2015 Headquarters Department of the Army mandatory PSB results, she would be retained beyond the removal date until the last day of the month in which the board results were publicly released or 1 December 2015, whichever is later. The CY 2015 COL PSB was released on 1 December 2015 and she was issued involuntary honorable discharge orders with maximum authorized years of service effective 1 December 2015. h. In summary, she alleges that the decisions that were made to prevent her from being assigned to any one of the numerous positions that were vacant and that she was well qualified for, was done with discriminatory animus. Therefore, others not of her race and sex were not treated the same and/or were given preferential treatment over her. For example, when the LTC (70H) who was placed into the paragraph 007, line number 01 position number 0090, 42H LTC position. She also tried for over 4-years to get placed into a position that would have allowed her to continue serving honorably until eligible for retirement. In addition, these discriminatory actions, prevented her from competing for promotion to COL due to the delay of the CY 2012 and CY 2013 COL PSB. And to add insult to injury, as an Army Reserve LTC in the zone of consideration by the CY 2015 COL PSB, she was issued involuntary honorable discharge orders with maximum authorized years of service effective 1 December 2015, the same date as the release of the CY 2015 COL PSB. She is quite confident that the facts of her case will show and support that in spite of her best efforts to work through all the proper personnel channels and her own independent outreach efforts for positions, the Army failed her over the course of 4-years and the subsequent involuntarily discharge prevented her from a well-earned promotion to COL and retirement with full military honors. i. As a dedicated and loyal Soldier, she served the Army during three deployments; Operations Iraqi Freedom, Joint Endeavor, Noble Eagle and Enduring Freedom. In addition, she completed 100 percent of her military education culminating with a Master's degree in Human Resources/Management. She is seeking full restoration of all benefits and honors that she was denied; a retroactive retirement date effective as of 1 December 2015, at the rank of COL from the Army Reserves with a promotion effective date of 7 February 2013 and full military honors; four years back pay and leave that she would have accrued but for her premature and unwarranted discharge. With her exemplary service of 28 years, she has earned the right to be promoted and retired in the U.S. Army. 3. On 3 May 1987, the applicant was appointed as a Reserve commissioned officer and executed an oath of office. 4. On 25 October 1987, the applicant entered Active Duty for Training (ADT), attended and completed the General Officer Basic Course. 5. DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 10 February 1988, honorably released the applicant from ADT and returned her to her USAR unit. She completed 3 months and 16 days of net active service. 6. DD Form 214, ending on 17 September 1996, shows the applicant was ordered to active duty in support of Operation Joint Endeavor from 19 January to 23 August 1996. She completed 8 months and 12 days of net active service, with 10 years, 3 months, and 6 days of prior inactive service. 7. DA Form 1059 (Service School Academic Evaluation Report), dated 23 June 2000, shows the applicant attended and completed the resident Adjutant General Officer Advanced Course from 12-23 June 2000. 8. DA Form 1059, dated 15 August 2003, shows the applicant completed the Command and General Staff Officer Course non-resident course from 4 October 2001 to 15 August 2003. 9. Orders Number A-12-296103, issued by the U.S. Total Army Personnel Command, St. Louis, MO, dated 9 December 2002, ordered the applicant to active duty in support of Operation Noble Eagle for a period of 179 days. 10. Orders Number B-02-801261, issued by the U.S. Army Human Resources Command (HRC), St. Louis, MO, dated 25 February 2008, promoted the applicant to the rank of LTC, effective on, with a date of rank of 10 February 2008. 11. Orders Number 11-048-00088, issued by Headquarters, 81st Regional Support Command, dated 17 February 2011, released the applicant from the USAR Support Command 1st Army Division East and assigned her to the USAR Control Group (Reinforcement) by reason of senior grade overstrength, effective 16 March 2011, under the authority of Army Regulation (AR) 140-10 (Assignments, Attachments, Details, and Transfers). 12. Orders Number D-03-505755, issued by HRC, Fort Knox, KY, dated 23 March 2015, honorably discharged the applicant from the USAR, effective 1 June 2015, under the authority of AR 135-175 (Separation of Officers). On the effective date of discharge, the applicant had completed 28 years and 1 month of service in the USAR. 13. On 26 January 2017, the applicant petitioned the Board for: * back pay of all pay and benefits of four years * retroactive retirement with a date of 1 December 2015 * promotion to COL with an effective date of 7 February 2013 14. On 24 October 2019, the Board denied the applicant's request citing insufficient evidence to corroborate the statements of the applicant showing improper actions were taken by leaders. 15. The applicant provides: a. Memorandum, Subject: Out-processing Procedures for the 311th Signal Command (Draft) showing the out-processing requirements for all Soldiers. The memorandum shows the procedures for filling out DA Form 4651 for those Soldiers who wished to stay with the unit until 30 September 2009 or who had identified a unit and wished to leave immediately. b. Orders Number 09-244-00006, issued by Headquarters, 200th Military Police Command, Fort Meade, reassigned the applicant from the Support Unit, Theater Support Command, Pacific and assigned her to the USAR Support Command, 1st Army Division East due to unit deactivation. c. Memorandum, Subject; Shaping the Force – Elimination Senior Grade Overstrength outlining guidance from the USARC Commander to shape the USAR force of overstrength TPU Soldiers through transformation on January 2009. The USARC Commander directed the immediate focus be on senior Soldiers in the grade of E8/E9 and O5/O6. Voluntary or involuntary actions per the personnel reliability program would be utilized to eliminate target overstrength Soldiers from TPUs. TPU Soldiers that were left over and could not be properly employed were the target senior over strength Soldiers. Reassignment would be in the IRR or Retired Reserve. d. DA Form 5016 showing the applicant had at the time 16 years of qualifying service for retirement. e. Email correspondence previously summarized in the applicant's opening statement. f. NPRC letter wherein the applicant was provided separation documents as well as her 2015 discharge order. g. Assignment history showing the applicant's assignments beginning in 1991 and ending in 2009. 16. On 23 February 2021, HRC reviewed the applicant's records and rendered an advisory opinion in her case. After a thorough review, the Chief, Officer Promotions Board Announcements, Support and Promotion Orders opined that: a. Based on a review of the documents received for inquiry, as it stands has no merit. We are not aware of the reasons why our office was contacted with this matter, the applicant has affirmed by her own accord as a matter of record, that it is the Commanders discretion to assign Soldiers or officers to positions within their units as they deem appropriate. HRC Officer Promotions Branch does not control the administrative processes, workload or assignment of personnel to any position outside of its own. Therefore, we cannot provide any view, judgment, comment or speculation for the Commanders reasoning of who and when he or she assigns to any positions of their choosing. b. We cannot speak towards any claims, comments, speculation or beliefs that the applicant was denied promotion or disadvantage from being assigned to higher grade positions. In addition, a review of our systems within HRC Officer Promotions Branch reflect that she was considered for promotion (fully eligible) to COL for FY 2014, FY 2015 and FY 2016 but was not selected. The exact reasons for her non-selection are unknown because statutory requirements set forth in Title 10, United States Code (USC), section 14104, prevent disclosure of board proceedings to anyone outside of the promotion boards in question. c. All promotions selection board announcements allow every officer an opportunity to submit correspondence to the President of the board, and its members to address any issues he or she feels is important during consideration; failure to do so does not constitute material unfairness or a material error nor is it an unlawful act. 17. The applicant was provided with a copy of this advisory opinion to give her an opportunity to respond and/or submit a rebuttal. She did not respond. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, the Chief, Officer Promotions Board Announcements, Support and Promotion Orders advisory opinion and the relevant statutory and regulatory provisions. The Board considered the applicant’s statement, her military service record, documents provided by the applicant, and the review and conclusions of the advising officials. The Board determined the applicant was considered for promotion (fully eligible) to COL for fiscal year (FY) 2014, FY 2015 and FY 2016 but was not selected. Her record shows that 1 June 2015 she hit 28 Commissioned service/Mandatory Removal Date (MRD). The Board agreed the applicant was not in a promotable status, upon realignment of her unit in 2011 she was determined to be excess and was unable to secure a valid position. Based on the applicant’s military records, the Board found no merit in the applicant’s request to promote her to the rank/grade of Colonel (COL)/O-6 with an effective date of 7 February 2013. 2. The Board determined her record is absent evidence that supports entitlement of back pay of all pay and allowances for four years. Furthermore, there Board found insufficient evidence that would warrant retroactive retirement with an effective date of 1 December 2015. The Board agreed the request for relief has no merit as the available evidence does not support the applicant requests. Therefore, relief is denied. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XXX XXX XXX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board found 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 to amend the decision of the ABCMR set forth in Docket Number AR20170006153 on 24 October 2019. 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): a. Paragraph 4-21b(1) states, promotion to fill USAR position vacancies. The effective date will be no earlier than the approval date of the board, the date of Senate confirmation of required, or the date the officer is assigned to the position, whichever is later. If not occupying the position, assignment of selectees to position vacancies will take place immediately on announcement of the results of the board. b. Paragraph 4-21b(2) states, unit officers selected by a mandatory board will have a promotion date and effective date no earlier than the date the board is approved or the date of Senate confirmation (if required), provided they are assigned to a position in the higher grade. When the board approval or, if required, Senate confirmation is before assignment to the position in the higher grade, the effective date and the date of promotion will be the date of assignment to the higher graded position. c. To be considered for promotion by a selection board, a commissioned officer (other than a commissioned warrant officer) must have continuously performed service on the Reserve Active Status List (RASL), the Active Duty List (ADL), or a combination of both during the 1-year period ending on the date the board convenes. 2. Title 10, USC, section 14315(e) states, a Reserve officer of the Army who has failed selection for promotion by a mandatory promotion board may be considered for a position vacancy promotion or, if selected, promoted to the higher grade, only if the Secretary of the Army determines that the officer is the only qualified officer available to fill the vacancy. 3. Army Regulation 135-175 (Separation of Officers) states members of the Army Reserve will be removed from an active status for length of service completion for maximum authorized years of service as prescribed in AR 140–10. 4. AR 140-10 (Assignments, Attachments, Details, and Transfers): a. Paragraph 7-1 states, these provisions apply to Soldiers assigned to the Selected Reserve, the IRR, and the Standby Reserve (active list). Soldiers removed from active status will be discharged or transferred to the Retired Reserve. Transfer to the Retired Reserve is authorized when requested by Soldiers who are eligible. Soldiers removed from units may be assigned to the IRR. b. Paragraph 7-2h(1) states LTCs will be removed on the first day of the month after the month in which the officer completes 28 years of commissioned service. 5. AR 37-104-4 (Military Pay and Allowance Policy) paragraph 20-1 (Settlement actions authority) states, only the director, Defense Finance and Accounting Service (Defense Finance)-IN may make settlement actions affecting the military pay accounts of Soldiers as a result of correction of records by the Army Board for Correction of Military Records (ABCMR) per provisions of AR 15-185 (ABCMR). //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200007024 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1