IN THE CASE OF: BOARD DATE: 3 February 2009 DOCKET NUMBER: AR20080015404 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 that his date of rank (DOR) to Lieutenant Colonel (LTC) be backdated to 16 January 2008. 2. The applicant states that someone from the Promotion Vacancy Board (PVB) removed his promotion packet from consideration because he was being considered by a mandatory promotion board as a below the zone (BZ) officer. This removal was an error since only those officers who are being considered by a mandatory promotion board while in the zone of consideration are prohibited from being considered by a PVB. 3. The applicant provides e-mail correspondence between him and the Human Resources Command, St. Louis (HRC-STL) which confirm that he was erroneously deleted from the PVB which convened on 27 September 2007. The HRC-STL stated that they had discovered that BZ officers being considered by a mandatory promotion board can still be considered by a PVB. The applicant also submits a memorandum dated 23 February 2007, Subject: Application Instructions for the October 2007 Position Vacancy Board (PVB) for Troop Program Unit (TPU) Positions; and a memorandum transmitting the results of the March 2008 PVB. CONSIDERATION OF EVIDENCE: 1. The applicant's military records show that he was commissioned as a second lieutenant, U.S. Army Reserve (USAR) on 6 May 1988 with prior enlisted service. 2. On 21 August 2002, the applicant was promoted to major. 3. Effective 24 July 2008, the applicant was promoted to LTC based upon his selection by a PVB. 4. Army Regulation 135-155, paragraph 2–13, USAR troop program unit position vacancy selection boards, states that promotion to fill authorized troop program unit (TPU) position vacancies may be filled through promotion of the best qualified, geographically available officers to the grades CW3, CW4, and CPT through COL. The USAR TPU position vacancy boards will normally be held twice a year. Section III, Promotion Reconsideration Boards, paragraph 3–19, General, states in pertinent part that Special selection boards, convened under the Reserve Officer Personnel Management Act (ROPMA) on and after 1 October 1996, will reconsider commissioned officers, (other than commissioned warrant officers) who were wrongly not considered and reconsider commissioned officers (other than commissioned warrant officers) who were considered but not selected by mandatory promotion boards that convened on or after 1 October 1996. These boards do not reconsider officers who were not considered or not selected by mandatory promotion boards that convened before 1 October 1996. 5. In the processing of this case, an advisory opinion was obtained from the HRC-STL. The HRC-STL stated that the applicant was erroneously removed from consideration by the September 2007 PVB because he was being considered by a mandatory board as a BZ officer. The HRC-STL recommends granting the applicant's request. The applicant was provided a copy of this advisory opinion and concurred with the HRC-STL's recommendation. DISCUSSION AND CONCLUSIONS: 1. The available evidence shows the applicant was erroneously not considered by a PVB for promotion to LTC. 2. While this error is unfortunate, there are no provisions in Army Regulation 135-155 to reconsider an officer for promotion when he was erroneously not considered by a PVB. As such, to grant the applicant's request would be giving him a benefit not afforded to others. 3. While this may appear unfair at first glance, it must be remembered that a PVB is designed to fill a unit vacancy. If an officer is erroneously not considered by a PVB, the position for which he is applying is filled by another officer. As such, the position no longer exists. 4. In addition, there is no method of determining whether an officer who is erroneously not considered by a PVB would have been selected by that selection board. 5. The HRC-STL advisory opinion has been carefully considered. While the HRC-STL recommends granting the applicant's request, it does not provide any authority for adjusting the applicant's DOR. 6. The applicant was considered for and selected by the next PVB. While this does not afford the applicant the date of rank and effective date of promotion he desires, he was at least promoted. BOARD VOTE: ________ ________ ________ 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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _X _______ ___ CHAIRPERSON 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. ABCMR Record of Proceedings (cont) AR20080015404 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080015404 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1