BOARD DATE: 29 March 2016
DOCKET NUMBER: AR20160003768
_________ _______ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__x______ ___x_____ _x_______ DENY APPLICATION
1. Board Determination/Recommendation
2. Evidence and Consideration
BOARD DATE: 29 March 2016
DOCKET NUMBER: AR20160003768
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.
BOARD DATE: 29 March 2016
DOCKET NUMBER: AR20160003768
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT’S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests the Board overturn the decision by the Assistant Secretary of the Army (Manpower and Reserve Affairs) (ASA (M&RA)) to disapprove her request to retire under the provisions of Temporary Early Retirement Authorization (TERA) as an exception to policy (ETP) to Army Directive 2013-14, paragraph 4b.
2. In the alternative, she requests the Board restores her eligibility for the options contained in the 23 November 2013 selective continuation (SELCON) notice.
3. The applicant states:
a. This redress is appropriate because she relied on the advice of a human resources (HR) subject matter expert at the Judge Advocate General’s Corps (JAGC) Personnel, Plans, and Training Office (PP&TO), Mr. NP, that she could accept SELCON for one year (she had completed 14 years of active service at the time) and, following completion of 15 years of active duty service, apply for retirement under TERA. This information, on which she relied in good faith to her detriment, was incorrect as the SELCON election period could not, in fact, be truncated by TERA absent an ETP. As a result, the U.S. Army Human Resources Command (HRC) refused to process her TERA request based upon the SELCON election, and the ASA (M&RA) refused to allow retirement under the provisions of TERA. By regulation, the Board is authorized to correct records to remove an injustice. To allow the decision of the ASA (M&RA) to stand, or to
otherwise deny her request to restore her eligibility for the options available in the SELCON notice would be a grave injustice. The adverse impact of Mr. P’s good faith, erroneous advice, and the ASA (M&RA)’s decision, is extraordinary; these actions have catastrophically affected her life and career.
b. On 21 November 2013, she received notice of her SELCON on active duty. The SELCON notice stated at paragraph 3 that “the [SELCON] period ends on 31 January 2020 unless sooner discharged under any other provision of law.” A review of relevant guidance regarding TERA revealed that eligibility for commissioned officers required: a) two-time non-selection for promotion, including those who had been selected for but not accepted SELCON; b) service on active duty; and c) at least 15 but less than 20 years of active service as of their established involuntary separation date. At the time of receipt of her SELCON notice, she was on active duty and had completed almost 14 years of active service (13 years and 11 months), and had been twice non-selected for promotion. She wanted to determine whether she could accept SELCON for one year until she completed 15 years of active service, and then apply for TERA as a qualifying “other provision of law” described in the SELCON notice under which discharge would be authorized as she was not within the target population described in the guidance (i.e., not yet having completed 15 years of active service).
c. On 20 December 2013, she sent an email to Mr. P asking if the Field Grade Assignments Officer was out for the holidays as attempts to reach her over the previous few days to pose her question had been unsuccessful. Mr. P is an HR subject matter expert at PP&TO who had been listed by the Field Grade Assignments Officer, Lieutenant Colonel (LTC) LC, as an alternate point of contact for questions related to these personnel matters. Mr. P asked whether he could be of assistance. She called him and asked whether she would be eligible for TERA after completing 15 years of service, even if she accepted SELCON, given that at the time of the acceptance she was at 14 years of service and therefore not within the eligible target population. He stated that she would be eligible for TERA once she completed 15 years of service. Based upon that information, she elected to accept SELCON, and sent her acknowledgement to HRC. She also sent an email to Mr. P capturing his guidance to ensure she was tracking and that there was no misunderstanding, and his response did not indicate an error in her summation.
d. In January 2015, she had completed 15 years of active service. In the spring of 2015, she prepared her request for retirement under TERA with an effective date of 1 January 2016. On 11 June 2015, Mr. P submitted her request for retirement under TERA. On 25 June 2015, HRC notified him the request had been returned without action based upon the fact that she had elected to accept SELCON, and thus her choices were to either remain on active duty until 2020 or separate. On 29 June 2015, she provided the new Field Grade Assignments Officer, LTC NH, the background discussions on the TERA request, including the email from Mr. P. On 10 July 2015, LTC NH and she discussed the way forward, and she stated she would resubmit her packet as an ETP to HRC with a cover letter that would include a number of arguments, including explaining the circumstances surrounding the decision to accept SELCON, the U.S. Army’s downsizing goals, and other points designed to persuade HRC to support the TERA request. On or about 16 July 2015, LTC NH suggested another course of action, namely having PP&TO resubmit her packet as an ETP not to HRC, but to the appropriate ASA. Additionally, instead of her drafting the cover letter with the arguments noted above, LTC NH volunteered to draft an endorsement for signature by the Chief, PP&TO (Colonel (COL) CB), and stated that PP&TO would engage either the Deputy Judge Advocate General of the Army (Major General TA) or The Judge Advocate General (TJAG) of the Army (Lieutenant General FD) to request an endorsement for her packet. She readily accepted this proposed course of action as it appeared to provide the strongest basis for approval. During the next 3 months, the packet, which ultimately included endorsements from the Chief, PP&TO and the TJAG, went through standard preparation and routing for a decision by the ASA (M&RA).
e. On 2 November 2015, she received the ASA (M&RA) memorandum, dated 28 October 2015, reflecting that the ASA (M&RA) had denied the request. On 3 November 2015, she requested an office call with the ASA (M&RA), which was denied. On 30 November 2015, she requested the ASA (M&RA) reconsider her decision. On 3 February 2016, she received the ASA (M&RA) memorandum, dated 28January 2016, denying her reconsideration request. Her decision was based not upon the substance of the request, but the assessment that said the request did not qualify as an exception to the administrative finality of her original 28 October 2015 ETP denial.
f. But for the information Mr. P of PP&TO provided, she would never have elected to accept SELCON. She reasonably relied on his advice to her detriment. Unlike many active component military occupational specialties, the JAGC has its own personnel office that works hand in hand with HRC. As a Judge Advocate (JA), PP&TO is the organization through which nearly all of her key personnel actions, including assignments, promotions, advanced schooling selections, retirements, and resignations, are coordinated. While bypassing PP&TO and sending queries to HRC may have also been an option, PP&TO was an appropriate entity for engagement regarding her eligibility for TERA. It would have been neither logical nor reasonable to doubt Mr. P’s offer to assist or the information that he, one of PP&TO’s HR subject matter experts, provided.
g. She is now faced with a choice. On the one hand, the Department of the Army, via HRC, has informed her that she is obligated to 2020 per the SELCON election. The 6-year long SELCON period is, by all accounts, exceptionally and unusually lengthy. It is simply untenable, given her profession as an attorney, her stellar record of excellent performance and demonstrated exceptional abilities, and her personal small business and community service aspirations, that she would have agreed to remain on active duty for 6 years. This would be a 6-year period in which she would not be promoted, would produce a quality of work above her pay grade for which she would not be appropriately compensated, and would not be eligible for assignments and duty positions with the level of responsibility commensurate with her capabilities and experience, further inhibiting opportunities for advancement. And, while she knows that there are many individuals for whom serving an entire SELCON period is a viable option as they are primarily concerned with receiving a full retirement, she is not one of these people. Her non-selection for promotion forced her to confront her calling to serve her community, a calling from which she had been running for years, and once she accepted where her true passions lay, she grasped them with both hands.
h. On the other hand, the Department of the Army, via HRC, also informed her that her only other option is to submit an unqualified resignation. This would mean she would receive no monetary compensation after an exemplary 16 year career of professional excellence, substantial productivity, and extensive sacrifice. This includes no separation pay, a benefit valued at nearly $100,000 based upon her time in service, for which she would have otherwise been eligible in November 2013 upon receipt of the SELCON notice. Resignation would also result in the loss of significant State and Federal benefits. Such a result especially under these circumstances is incredibly unjust and, frankly, unconscionable. The ASA (M&RA)’s February 2016 denial suggests that another option is to enter the U.S. Army Reserve to work towards a non-regular retirement. Again, obtaining a standard retirement is not her ultimate goal, otherwise she would simply opt to serve out her SELCON period. Furthermore, she would still be faced with the lack of career progression and promotion intimated above, which is unacceptable given her record.
i. Instead of facilitating her intentions of starting a small business and founding a community organization had she been discharged in 2014 with separation pay, she has now nearly 2 full years that would have been dedicated to these undertakings, including their attenuated tractions and client base build-up. Additionally, she forewent offers posited by a prominent local attorney to utilize extensive legal experience in a variety of consulting and Federal discrimination endeavors. Finally, she has planned the last 2 years of her life under the false belief that in 2015 she would be eligible to apply for TERA and possibly receive a robust, if reduced, retirement. While she knew that TERA was not an entitlement, she was under the impression that she had a legitimate opportunity for consideration. Now it is 2 years later and instead of a solid future ahead, she is faced with the above options.
j. There is also a concern surrounding the disapproval. Based upon information contained in the response to her request for an office call, as well as follow-on conversations, it became clear that there were various underlying concerns that may have led to the disapproval of her TERA ETP request. In the event the Board has similar concerns, she wants to address these items:
(1) Precedent Setting: The facts and circumstances surrounding her case are unique and approval of her request would not set a dangerous precedent. Outside of specialty branches such as the JAGC and Medical Corps, where promotions are generally accelerated compared to Army Competitive Category (ACC) peers, the overwhelming majority of ACC MAJs who are two-time non-selects to LTC have already completed 15 years of active service and thus would have been unambiguously eligible for TERA. Second, it is also highly unlikely that a large number of Army officers elected SELCON and applied for TERA based upon the receipt of advice from a DA-level HR subject matter expert as she did.
(2) Waiting to Apply for TERA: She waited until the completion of 15 years because she was advised that this was an allowable course of action. The language at paragraph 3 of the SELCON notice provides that the SELCON period may be truncated if an individual is discharged under another provision of the law, which should include TERA. Thus, having already completed 14 years of active duty service, she was not averse to remaining on active duty for one more year to have the opportunity to receive a reduced retirement under TERA. To ensure that this was indeed the case that she could elect SELCON and then apply for TERA at one year later she sought advice from PP&TO and was informed that this course of action was allowable.
(3) Force Shaping. It is understandable that the Army relies on the legitimacy of Soldier’s decisions surrounding SELCON acceptance and declination to help shape its strength projections; as such, with her SELCON election, it is fair that Army thought that it would have an O-4 JA in its ranks until 31 January 2020. However, it is also sensible to account for attrition or unforeseen circumstances, such as discharges for medical disability, misconduct, or for the good of the service. The facts of her case are similar unforeseen circumstances.
k. In conclusion, the information contained in this document is provided as a means to assist the Board in making the most informed decision regarding her request for redress, which would allow her to retire under TERA as an ETP or, alternatively, allow eligibility for the options contained in the November 2013 SELCON notice. She has no doubt that Mr. P was acting in good faith and honestly believed that she would be eligible for TERA after completing 15 years of active duty service despite a SELCON election. In 2013, when she made her query to PP&TO, the TERA program was still relatively new. Unfortunately, his advice has led to disastrous consequences for her career and future. She should not, as a consequence, be forced to either remain on active duty until 2020 or resign with nothing to show for 16 years of outstanding service. Such a result would be a grave injustice that the Board is in the unique position to correct, and the Board should do so.
4. The applicant provides:
* ASA (M&RA) denial memoranda, dated 28 October 2015 and 28January 2016
* SELCON memorandum, dated 21 November 2013
* SELCON Acknowledgement memorandum
CONSIDERATION OF EVIDENCE:
1. Having had prior Reserve service, the applicant was appointed as a first lieutenant Reserve commissioned officer in the JAGC with a concurrent call to active duty on 7January 2000.
2. She attended and successfully completed the JA Officer Basic Course from 7January through 7April 2000. She was promoted to MAJ in the Regular Army on 1June 2007. She also successfully completed the JA Officer Graduate Course from 10August 2007 through 22May 2008.
3. She was considered for promotion to LTC by the Fiscal Year 2012 (FY12) LTC JAGC Promotion Selection Board (PSB) but she was not selected for promotion.
4. On 21November 2013, by memorandum, she was notified by HRC that she had been considered for promotion to LTC by the FY13 LTC JAGC PSB and was not selected for promotion. However, a subsequent selection board was convened to consider twice non-selected officers for continuation on active duty and she had been selected for SELCON. The memorandum advised her that:
* The SELCON period ends on 31 January 2020 unless sooner discharged under any other provision of the law
* Pursuant to Title 10, U.S. Code, section 632(a)(1), if she declined continuation, she would be honorably discharged no later than 1 May 2014 which is the first day of the 7th month after approval of the board
* She must make an election of an option (i.e., accept, retire (if eligible), resign, separate, etc.)
5. It appears she communicated with an official at PP&TO prior to executing her acknowledgement memorandum. It also appears the official informed her that she would be eligible to apply for TERA at the 15-year mark.
6. On 20 December 2013, she accepted the SELCON and acknowledged her mandatory removal date (MRD) would be no later than 31January 2020. She also acknowledged that she would not be eligible for separation pay as she would be eligible for retirement (on her MRD).
7. At some point in 2014, she submitted a request for an exception to Army Directive 2013-14 to retire under TERA. However, on 28 October 2015, the ASA (M&RA) determined that her continued service in the Army JAGC as a SELCON officer was in the best interests of the Army and disapproved her request.
8. It appears in November 2015, she submitted a request for reconsideration. However, on 28 January 2016, the ASA (M&RA) again disapproved her request and stated:
a. The request for reconsideration was carefully considered as an exception to Army Directive 2013-14 but the information she provided did not meet the narrow exceptions to the doctrine of administrative finality. Her SELCON is through 31 January 2020, unless sooner discharged under any other provision of law and she would continue to be considered for promotion until separation.
b. If she decides to leave the Army prior to the end of her SELCON, she may want to consider joining a Reserve Component and continue working towards a non-regular retirement.
Army Directive 2013-14, dated 10 June 2013, subject: TERA, authorizes implementation of an early retirement program consistent with the provisions of Public Law 112-81, National Defense Authorization Act for FY12 , Section 504, enacted 31 December 2011, to include Active Guard and Reserve officers. Retirement with at least 20 years of service has been, and will continue to be, the basic entitlement for those personnel who complete a career in the Army. TERA is a discretionary authority and not an entitlement. Soldiers denied continued service with an established involuntary separation date as a result of a Department of the Army centralized selection board process, including the Director, Army National Guard’s force shaping centralized separation board for Title 10 officers, who meet all eligibility criteria outlined below may request TERA in lieu of involuntary separation:
* Noncommissioned officers denied continued service as a result of the Qualitative Service Program centralized selection board who are serving on active duty and have completed 15 but less than 20 years of active service as of the established involuntary separation date
* Officers and warrant officers placed at risk for continued service by virtue of nonselection for advancement by PSBs, or for separation by force shaping centralized selection processes, who are serving on active duty and have completed 15 but less than 20 years of active service as of the established involuntary separation date
* These basic eligibility requirements may not be waived
* Soldiers pending evaluation for disability retirement under Title 10, U.S. Code, chapter 61 are not eligible for early retirement under this directive
* Qualifying Soldiers who wish consideration for early retirement under TERA must apply in accordance with the procedures disseminated by HRC or the National Guard Bureau G-1, as appropriate
* Soldiers approved for early retirement will not be eligible for involuntary separation pay, but remain eligible for transition assistance benefits until their retirement date
* This directive is effective immediately and will be rescinded on 31December 2018, if not withdrawn sooner
1. The applicant served as a JAG officer and attained the rank of MAJ. She was considered for promotion to LTC by the FY12 and the FY13 PSBs, but in each case she was not selected for promotion. As required by the statute, her separation was mandatory. However, although she was not selected for promotion a second time, she was selected for SELCON through 2020.
2. She was advised of her SELCON and was given a choice. It appears she consulted with an official who informed her that even if she accepted SELCON, she would still be eligible for TERA. This is incorrect and contradicts Army Directive 2013-14. She submitted an ETP to retire under TERA but her request was denied. She submitted a request for reconsideration but her request was again disapproved.
3. She contends that the decision by the ASA (M&RA) to deny her the ETP should be reversed but provides insufficient evidence to show she meets the criteria for TERA.
4. TERA applies to officers placed at risk for separation by virtue of nonselection for advancement by PSBs, or for separation by force shaping centralized selection processes, who are serving on active duty and have completed 15 but less than 20 years of active service as of the established involuntary separation date. The applicant does not meet the criteria for four reasons:
* she is not at risk of separation considering that she was selected for continuation through January 2020
* she accepted the SELCON
* she continues to be eligible for promotion to the next higher grade until she is separated
* her request is for her convenience and is not in the best interests of the Army
5. She contends that the Board should restore her eligibility for the options contained in the 23 November 2013 SELCON notice but does not provide evidence that she was denied the opportunity to elect one of the options available to her when she received her notification in December 2013. The evidence shows she reviewed the options and made a choice. There is no error or injustice here.
ABCMR Record of Proceedings @#!CASENUMBER
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
ABCMR Record of Proceedings (cont) AR20160003768
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS