RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 March 2007
	DOCKET NUMBER:  AR20060011322 


	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

Ms. Wanda L. Waller

Analyst


The following members, a quorum, were present:


Mr. Thomas Ray

Chairperson

Mr. Jeffrey Redmann 

Member

Mr. James Hastie

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 that his date of rank (DOR) for promotion to major, 
O-4, be adjusted to show 18 July 2000.  He also requests that his promotion eligibility date (PED) for lieutenant colonel be changed to 18 July 2007. 

2.  The applicant states, in effect, that his PED for lieutenant colonel is incorrect and that he should have been considered for lieutenant colonel.  He contends that he was passed over for major, that he went before a standby board and was promoted, and that in the meantime he was discharged.  He states that when he was reinstated his promotion letter read February 2005 with no “B” [year of mandatory board] or “C” [date of rank] dates.  He further states that his promotion orders, dated 7 June 2002, had a DOR of 19 July 2000 which should have made him eligible for promotion in 2005 or 2006.  He contends that he almost completed the Associate Logistics Executive Development Course (ALEDC) before he was discharged and now that he is back in he is completing the last two courses.  He states that ALEDC is a substitute for the Command and Staff course.   

3.  The applicant provides promotion orders, dated 7 June 2002; promotion orders, dated 10 February 2005; rescinded orders, dated 10 November 2004; and a copy of his Self Development Active Enrollment Status.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned a second lieutenant in the U.S. Army Reserve (USAR) from the Reserve Officers’ Training Corps in December 1985.  He was promoted to first lieutenant effective 1 November 1988 and promoted to captain effective 1 November 1992.

2.  A memorandum, dated 14 January 2000, shows the applicant was not selected for promotion to major.

3.  Discharge orders D-03-111816, dated 6 March 2001, show the applicant was discharged from the USAR (apparently as a two-time nonselect promotion). 

4.  Discharge orders D-03-111816R, dated 10 November 2004, voided discharge orders D-03-111816.

5.  On 7 August 2001, a Department of the Army Standby Advisory Board recommended the applicant for promotion to major under the 2000 criteria. 

6.  A memorandum, dated 7 June 2002, shows the applicant’s DOR is 19 July 2000.  This memorandum also states that “Under ROPMA the earliest date you can have is the Presidential approval date of the criteria year you were recommended under, and if you were in position and met the qualifications.”

7.  A memorandum, dated 10 February 2005, shows the applicant was promoted to major effective 10 February 2005.

8.  The applicant was ordered to active duty on 2 May 2005 and released from active duty on 31 December 2006.

9.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Special Actions Branch, Office of Promotions, Reserve Components of the U.S. Army Human Resources Command at St. Louis, Missouri.  The opinion states that the applicant was selected for promotion to major by the August 2001 Department of the Army Special Selection Board under the 2000 criteria with a PED of 18 July 2000.  In accordance with Army Regulation 135-155, paragraph 4-11, before being promoted, an officer selected for promotion must be medically qualified and have undergone a favorable security screening.  A review of the applicant’s file revealed that he did not possess these requirements.  The opinion points out that as of 10 February 2005, there is a promotion policy change from the Deputy Chief of Staff, G-1.  The policy is that an officer may be promoted without a current physical or security clearance and that if the selection is after 
1 October 1996, he will be given a DOR of 10 February 2005, the effective date of the policy.  In accordance with the policy change, 10 February 2005 is the applicant’s correct DOR.  In addition, based on the seven years time in grade requirement the applicant’s PED to lieutenant colonel is 9 February 2012, and it can be assumed his earliest lieutenant colonel board will convene in 2010.  This office recommended that the applicant’s request be disapproved.  

10.  The advisory opinion was provided to the applicant on 14 November 2006 for comment or rebuttal.  He did not respond within the given time frame.

11.  Paragraph 4-11a of Army Regulation 135-155, (Promotion of Commissioned Officers and Warrant Officers other Than General Officers) states, in pertinent part, that an officer who has been recommended for promotion must be medically qualified and have undergone a favorable security screening before being promoted in the Reserve Component. 

12.  A Deputy Chief of Staff, G-1 memorandum, dated 10 February 2005, Subject: Promotion of Reserve Component Officers on a Promotion List Resulting from a Mandatory Promotion Board provided for an exception to the promotion requirements of Army Regulation 135-155, paragraphs 4-11a (3-5) and 4-13.  It stated that officers recommended for promotion by a mandatory promotion board would be promoted on the date they attain maximum time in grade in accordance with Title 10 U.S. Code, section 14304, or upon assignment to higher graded unit position, whichever is sooner, unless they are in a promotion delay status.  This memorandum did not provide for retroactive promotions. 

13.  Section 14304 of Title 10 U.S. Code provides the legal authority for eligibility for consideration for promotion based on maximum years of service in grade provisions of the law.  Subsection (a) states, in pertinent part, that officers shall be placed in the promotion zone and shall be considered for promotion to the next higher grade by a promotion board convened under section 14101(a) of this title, far enough in advance of completing the maximum years of service in grade so that, if the officer is recommended for promotion, the promotion may be effective on or before the date on which the officer will complete those years of service.  The table in subsection (a) establishes the maximum years of service in grade for a captain to be promoted to major as seven years and for a major to be promoted to lieutenant colonel as seven years.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant was selected for promotion to major in August 2001 with a PED of 18 July 2000.  However, he did not meet all of the promotion eligibility criteria as of that date.  

2.  In a memorandum, dated 10 February 2005, the promotion policy was changed to provide for the promotion of an officer recommended for promotion by a mandatory promotion board when he/she attains the maximum time in grade required.  However, the policy was not retroactive.  The earliest DOR the applicant could be given was 10 February 2005, the date of the memorandum.

3.  Based on the foregoing, the applicant’s DOR of 10 February 2005 and his PED to lieutenant colonel of 9 February 2012 are correct.  Therefore, there is no basis for granting the applicant’s requests.









BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

TR_____  __JR____  __JH____  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.



___Thomas Ray_________
          CHAIRPERSON




INDEX

CASE ID
AR20060011322
SUFFIX

RECON

DATE BOARDED
20070301
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
131.0500
2.
131.0400
3.

4.

5.

6.