PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 1 November 2001
         DOCKET NUMBER: AR2001058285


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Paul A. Petty		Analyst

The following members, a quorum, were present:

Mr. Walter T. Morrison		Chairperson
Mr. Curtis L. Greenway		Member
Mr. Arthur A. Omartian		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that he be removed from the Calendar Year (CY) 2000 and 2001 lists for promotion consideration to lieutenant colonel (LTC); that his record be corrected to show his career group as 1997 instead of 1994,
in effect, that records show his date of rank to be 4 November 1997 instead of
13 July 1994; and that he be considered for promotion to LTC at the correct time.

3. The applicant states, in effect, that his promotion order to major (MAJ) must have been misread. He should not have been considered for promotion to LTC by the 6 September 2000 promotion board but he was considered and not selected since he had only just enrolled in Command and General Staff College (CGSC) in October 2000. He would not be able to finish the required fifty percent of the CGSC before he will be considered by the next promotion board.

4. The applicant’s military records show that he, an Army Reserve officer, was promoted to captain with a date of rank of 15 July 1987. His promotion eligibility date (PED) for promotion to MAJ was 14 July 1994. He was considered for promotion to MAJ by the Fiscal Year (FY) 1994 and 1995 promotion boards but not selected. As a result of two time nonselection for promotion, the applicant was discharged from the service, effective 3 September 1995, by orders published on 31 October 1995.

5. On 6 August 1995, the applicant applied to the Army Board for Correction of Military Records (ABCMR) for reconsideration for promotion to MAJ. He justified his request by stating that he was not aware that he was being considered for promotion; that he did not have an opportunity to submit a promotion packet or review his files before being considered; and that he was transferring from the Minnesota Army National Guard to the Army Reserve which resulted in his military records not being available for review. He also stated that he was told by his Personnel Management Officer not to be concerned about promotion until he was relocated in a new unit. The ABCMR forwarded the applicant’s request (case AC-95-11453) to the Office of Promotions, U. S. Army Reserve Personnel Center (ARPERCEN) in St. Louis, Missouri, requesting that his records be reviewed to determine if he was eligible for a Standby Advisory Board (STAB) promotion consideration. The ABCMR asked to be notified of the results if a STAB was conducted.

6. The applicant was reconsidered for promotion to MAJ by a Reserve Components Promotion Advisory Board that convened on 2 April 1996, and adjourned on 3 April 1996. The Secretariat for Department of the Army Selection Boards (Reserve Component) published a memorandum on 5 April 1996, announcing that the applicant had been selected for promotion based on the original FY1994 promotion board criteria and his pending PED for MAJ was
14 July 1994.


7. On 7 August 1996, the ABCMR recommended that the applicant’s discharge be revoked and that he be promoted as though he had been selected by the original promotion board (case AC96-07492). On 16 August 1996, the recommendation was approved and ARPERCEN was directed to make the corrections.

8. On 1 August 1997, the Army Reserve Command in Atlanta, Georgia, published orders 97-213-004, revoking the applicant’s discharge order, placing him back in the Army Reserve. On 4 November 1997, he was reassigned to a Reserve Troop Program Unit (TPU).

9. On 10 December 1997, the U. S. Army Reserve Personnel Command
(AR-PERSCOM, formerly ARPERCEN) published a promotion memorandum promoting the applicant to the rank of MAJ, effective 14 July 1994 (the “A” date on the promotion memorandum), for pay and allowances, with a Date of Rank (DOR) of 4 November 1997 (the “B” date on the promotion memorandum from which time-in-grade would be computed to determine eligibility for promotion to the next higher grade). According to the provisions of the Reserve Officer Personnel Management Act (ROPMA) and Army Regulation 135-155 (Army National Guard and Army Reserve Promotion of Commissioned Officers and Warrant Officers other than General Officers), a MAJ will be considered for promotion to LTC, the first time, 7 years from the date of rank for MAJ which is also the PED for LTC. The applicant’s PED for LTC, based on the DOR of
4 November 1997, would be 3 November 2004. However, unknown to the applicant, on 6 September 2000, he was considered for promotion to LTC by the CY2000 promotion board. This action was based on an unpublished assumed MAJ DOR of 14 July 1994 resulting in a LTC PED of 13 July 2001. The board adjourned on 6 October 2000 but the results were not released until March 2001. The board did not select the applicant for promotion to LTC due in pertinent part to lack of the required military education, completion of at least fifty percent of CGSC.

10. The applicant reported that he enrolled in non-resident CGSC in October 2000.

11. The recommendations of the CY2000 LTC promotion board were approved on 8 February 2001. On 8 March 2001, PERSCOM published a memorandum to the applicant informing him that he had not been selected for promotion to LTC.

12. On 8 May 2001, AR-PERSCOM issued a corrected copy of the applicant’s MAJ promotion memorandum, showing the applicant’s DOR (“B” date) as “none”, with the explanation that if “none” was entered in the “B” date, that the DOR would be the same as the “A” date, effective date, 14 July 1994. The letter further stated that the time in grade for promotion to the next grade would be computed from 14 July 1994.
13. On 21 May 2001, the applicant applied to the ABCMR for action to correct this injustice. On 5 September 2001, the CY2001 LTC promotion board convened. The board consider the applicant for promotion. The board adjourned on 6 October 2001. The results of the board will not be released
until early 2002.

CONCLUSIONS:

1. The applicant was informed by his promotion memorandum, issued
10 December 1997, by Headquarters, U. S. Army Reserve Command, that his time in grade for promotion to the next grade, LTC, would be computed from
4 November 1997. Based on this date given the applicant, he was led to believe that his promotion eligibility date for LTC was 3 November 2004, seven years from the published date of rank. The applicant enrolled in the CGSC in October 2000, which would have given him sufficient time to complete the course and become educationally qualified before he was to be considered for promotion to LTC. However, unknown to the applicant and unanticipated, he was considered for promotion to LTC by the CY2000 promotion board and not selected due to lack of the CGSC. He was notified of this nonselection by a memorandum dated 8 March 2001. His situation was further complicated by his promotion memorandum being changed by AR-PERSCOM on 8 May 2001, to show a date of rank of 14 July 1994, instead of 4 November 1997. He was then considered for promotion to LTC a second time and will again not be selected due to lack of the CGSC. This has placed the applicant in an unjust and untenable situation where he will be discharged for two time nonselection for promotion by circumstances beyond his knowledge and control.

2. In the interest of justice and fairness, and as an exception to policy and regulation, his date of rank, from which date he will be eligible for promotion to LTC, should be returned to 4 November 1997, with his promotion effective date to remain 14 July 1994. His name, record, and notification of nonselection for promotion to LTC should be expunged from the CY2000 and CY2001 LTC promotion boards and from his records. He should be first considered for promotion to LTC by the CY2004 promotion board. This action should not result in any pay collections.

3. In view of the foregoing, the applicant’s records should be corrected as recommended below.







RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected for the individual concerned, as an exception to policy and regulation, by:

         a. revoking or otherwise deleting from the record the 8 May 2001 corrected copy of his 10 December 1997 promotion memorandum for the rank of MAJ;

         b. showing that the effective date for promotion to MAJ is 14 July 1994;

c. showing that 4 November 1997, is his date of rank for MAJ and the date from which his time in grade will be computed for eligibility for promotion to LTC;

d. removing his name and records from the CY2000 and CY2001 LTC promotion boards;

e. removing from the records any evidence that he was nonselected for promotion by the CY2000 and CY2001 LTC promotion boards;

f. revoking his discharge, if he is discharged as a result of two time nonselection for promotion by the CY2001 LTC promotion board; and

g. making these corrections without any pay collections.

BOARD VOTE:

__wm___ __cg___ __ao____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Walter T. Morrison___
                  CHAIRPERSON

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INDEX

CASE ID	AR2001058285
SUFFIX
RECON
DATE BOARDED	20011101
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	131.1 – Failure of Selection
2.
3.
4.
5.
6.