RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 March 2007
	DOCKET NUMBER:  AR20060009165 


	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.



Acting Director



Analyst


The following members, a quorum, were present:


Chairperson



Member


Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his date of rank (DOR) for promotion to major (MAJ) be changed from 2 February 2006 to 8 June 2005.

2.  The applicant states, in effect, that according to the governing regulation, if his promotion was the result of a Special Selection Board (SSB) action, his effective date for pay and allowances, DOR, and position on the Reserve Active Status List (RASL) will be the same as if he had been recommended for promotion to the grade by the mandatory selection board.

3.  The applicant provides the following documents in support of his application:  80th Division Institutional Training Order Number 05-118-00232, dated 28 April 2005; Army Human Resources Command (AHRC), St. Louis, Order Number 
B-02-601491, dated 14 February 2006; electronic mail (email) message; and Extracts of Army Regulation 135-155.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show he served as a commissioned officer in the Army National Guard (ARNG) from 24 June 1989 through 1 October 1995, at which time he was honorably discharged.  

2.  On 13 October 1989, the applicant was appointed a second lieutenant in the United States Army Reserve (USAR).

3.  The applicant's Official Military Personnel File (OMPF) contains 80th Division Institutional Training Orders Number 05-118-00232, dated 28 April 2005, which ordered him to active duty for a period of 553 days for mobilization in support of Operation Iraqi Freedom.  

4.  The applicant's OMPF also contains an Army Human Resources Command-St. Louis (AHRC-St. Louis) Memorandum, dated 28 June 2005.  This document indicates the applicant was considered, but not selected for promotion to the rank of major (MAJ) by a Reserve Component Selection Board (RCSB) that convened on 8 March 2005.  

5.  The applicant's record shows that based on being selected for promotion to MAJ by a Special Selection Board (SSB) under the 2005 RCSB criteria, 
AHRC-St. Louis, Orders Number B-02-601491, dated 14 February 2006, directed the applicant's promotion to MAJ, effective and with a DOR of 2 February 2006.  

6.  During the processing of this case, an advisory opinion was obtained from the Chief, Special Actions Branch, Officer of Promotions, Reserve Components (RC), AHRC-St. Louis.  This official confirmed the applicant was considered for promotion by the 2005 MAJ RCSB, but was not selected.  He also stated that the applicant was selected for promotion to MAJ by a SSB that recessed on 7 October 2005, under the criteria used by the 2005 RCSB.  The official further indicated that the applicant was informed via e-mail that he could have been given a DOR as early as 8 June 2005, the approval date of the original board, provided he was otherwise qualified and if his unit would submit a USARC Form 56-R (Promotion Qualification Statement for USARC Mobilized TPU Officers) to verify that he was serving in the higher graded position or matched to a higher graded position on that date.  He also indicated that the applicant’s unit verified that he was assigned to a higher graded position on 2 February 2006, and therefore a promotion order was issued giving the applicant a DOR of 2 February 2006.  He finally recommended that the applicant’s request for an adjusted DOR be denied.

7.  On 7 December 2006, the applicant was provided a copy of the advisory opinion for his comments and/or rebuttal.  On 5 January 2007, the applicant provided his response and stated that he provided his Division G-1 the information he received from the AHRC-St. Louis Officer Promotions Branch concerning his DOR.  He also stated that he understood the governing regulation and law as it pertains to his promotion recommendation by a promotion advisory board/SSB and the promotion of mobilized Soldiers could be made without regard to being assigned to a position of the higher grade.  He indicated that he was mobilized in support of Operation Iraqi Freedom on 8 May 2005, prior to the 8 June 2005 approval of the RASL and given that there were vacant positions in his unit in the higher grade at that time, he could have been promoted on 
8 June 2005.  He also states that there were other officers in his unit that were promoted although they were not in positions commensurate with the next higher grade.  He also indicates that there has been a multitude of communications via e-mail, telephone, and personal visits to the Division G-1 and the Human Resource Officer concerning this issue and that after 10 months, he feels that he is being discriminated against.

8.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers of the Army National Guard of the United States (ARNGUS) and of commissioned and warrant officers (WO) of the U.S. Army Reserve (USAR).

9.  Paragraph 4-21e(2) (Effective Dates) of the promotions regulation states, in pertinent part, that if an officer is selected by a promotion advisory board/special selection board, the officer's date of rank and effective date for pay and allowances would be the same as if the officer had been recommended for promotion to the grade by the mandatory board that should have considered, or that did consider, the officer. 

10.  Title 10, Unite States Code, Section 14502e(2) provides that an officer who is promoted to the next higher grade as the result of the recommendation of a special selection board shall, upon such promotion, have the same date of rank, the same effective date for the pay and allowances of that grade, and the same position on the RASL as the officer would have had if the officer had been recommended for promotion to that grade by the selection board which should have considered, or which did consider, the officer.

11.  A Deputy Chief of Staff, G-1, Office of the Assistant Secretary, Manpower and Reserve Affairs Policy Memorandum, Subject: Promotion of Mobilized RC Officers on RASL, dated 17 December 2003, provided, in pertinent part, that as an exception to the governing regulation, mobilized RC officers assigned to a position that requires an authorized grade lower than the grade to which the officer is selected for promotion by a mandatory promotion board could be promoted without being assigned to a position authorized the higher grade as an exception to policy. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that because he was promoted to MAJ by a SSB, the effective date of his promotion and his DOR should have been established as it would have been if he had been selected by the RCSB that originally considered him for promotion was carefully considered and found to have merit. 

2.  The governing law and regulation provide for promoting officers selected by a SSB to receive the same DOR, the same effective date for the pay and allowances, and the same position on the RASL as they would have had if they had been recommended for promotion to that grade by the selection board which should have considered, or which did consider, them.  


3.  Further, the evidence of record confirms the applicant was mobilized in support of Iraqi Freedom and serving on active duty on the date the President approved the 2005 MAJ RCSB.  Although he was serving in a CPT position at that time, under the 17 December 2003, Department of the Army Promotion Policy Memorandum, the requirement to fill a position authorized the higher grade would have been waived and he would have been promoted to MAJ effective and with a DOR of 8 June 2005, the date the promotion list was approved by the President.  Therefore, it would be appropriate and serve the interest of justice and equity to correct his record accordingly.  It would also be appropriate to provide him all back pay and allowances due as a result.  

BOARD VOTE:

___KLW_  __CAD__  __EJF __  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adjusting the effective date and date of rank of his promotion to  Major to 8 June 2005, and by providing him all back pay and allowances due as a result,




_____Kenneth L. Wright___
          CHAIRPERSON


INDEX

CASE ID
AR200600089165
SUFFIX

RECON
NO
DATE BOARDED
2007/03/27
TYPE OF DISCHARGE
N/A
DATE OF DISCHARGE
N/A
DISCHARGE AUTHORITY
N/A
DISCHARGE REASON
N/A
BOARD DECISION
GRANT
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
102.0700
2.

3.

4.

5.

6.