RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 April 2007
	DOCKET NUMBER:  AR20060016197 


	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. Gerard W. Schwartz

Acting Director

Mr. John J. Wendland, Jr.

Analyst


The following members, a quorum, were present:


Mr. Kenneth L. Wright

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. Ernestine I Fields

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, reconsideration of the effective date and date of rank (DOR) pertaining to his promotion to captain (CPT)/pay grade O-3.

2.  The applicant states, in effect, that he was considered and selected for promotion to CPT twice, the first time by the 2002 Captain Department of the Army Reserve Components Selection Board (2002 CPT DA RCSB) and the second time by the Fiscal Year 2005 Captain, Army Competitive Category Selection Board (FY05 CPT ACC SB).  The applicant also states, in effect, that the Army Board for Correction of Military Records (ABCMR) issued its finding for the adjustment of his first lieutenant (1LT) DOR on 14 February 2005, but the adjustment is not reflected in his records.  The applicant further states that based on his adjusted DOR to 1LT he would have been considered for promotion to CPT by the 2001 CPT DA RCSB.  He concludes by stating, in effect, that the 2001 CPT DA RCSB list was approved and released prior to his accession onto active duty, which would have allowed him to be promoted from it based on his active duty status.

3.  The applicant provides a copy of U.S. Army Human Resources Command (USA HRC), Reserve Record portal, dated 11 September 2006; Headquarters, USA HRC, Alexandria, Virginia, Order Number 047-062, dated 16 February 2005; and Headquarters, ABCMR, Arlington, Virginia, memorandum, dated
14 February 2005, pertaining to the applicant's original application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20040002735 on 1 February 2005.

2.  The applicant's military service records show that he was appointed in the U.S. Army Reserve (USAR) as a second lieutenant (2LT), effective 10 May 1996.

3.  On 19 August 1996, the applicant was appointed as a 2LT in the Hawaii Army National Guard (HI ARNG).

4.  The applicant was issued orders promoting him in the HI ARNG to 1LT, effective 4 December 1998.  The orders advised the applicant that he would not be paid as a 1LT until Federal recognition was confirmed.  Special Orders were subsequently issued granting the applicant Federal recognition and promotion to 1LT, effective 9 February 1999, and branch transfer to the MP Branch, effective 22 May 1998.

5.  The applicant was separated from the HI ARNG, effective 16 July 2001, and transferred to the USAR.

6.  The applicant was considered and selected for promotion by the 2002 CPT DA RCSB that convened on 4 November and recessed on 27 November 2002.  The President approved the Board results on 17 March 2003.

7.  The applicant was ordered to active duty in the grade of rank of 1LT on
12 February 2003.

8.  The applicant's military service records contain a copy of Headquarters, U.S. Total Army Personnel Command, Alexandria, Virginia, Order Number 127-004, dated 7 May 2003.  This order announced the applicant's promotion status and shows, in pertinent part, a determination was made that his active duty list (ADL) grade of rank was 1LT and active date of rank (ADOR) was 9 February 1999.

9.  The applicant's military service records contain a copy of Headquarters,
USA HRC, Alexandria, Virginia, Order Number 047-062, dated 16 February 2005.  This order shows, in pertinent part, that the applicant was promoted to the grade of rank of CPT, effective and with a DOR of 1 March 2005.

10.  The applicant is currently serving on active duty in the grade of rank of CPT.

11.  On 1 February 2005, the ABCMR determined that the applicant's records should be corrected to show he was promoted to 1LT with a promotion eligibility date (PED) and DOR of 9 May 1998, with entitlement to back pay and allowances resulting from the adjustment.  The DOR adjustment was based upon the applicant's completion of the minimum (i.e., 2 years) time in grade (TIG) requirement for promotion to 1LT.  However, the ABCMR denied the portion of the applicant's request pertaining to his promotion to CPT, effective 9 February 2004.  The ABCMR Record of Proceedings was promulgated on 14 February 2005.

12.  In connection with the processing of this case, an advisory opinion was obtained from the Chief, Special Actions Branch, Office of Promotions, Reserve Components (RC), USA HRC, St. Louis, Missouri.  The advisory official confirmed that there is no supporting documentation that reflects that the applicant's DOR for 1LT was ever corrected.  The advisory official offers that the Office of Promotions, RC, USA HRC, was not the applicant's (1LT) promotion authority.  He also states that had this been the case, the applicant would have been eligible for consideration.  However, the advisory official adds there is no way of determining if the applicant was in a higher graded position at that time, but he would be in the zone of consideration if the date of rank is corrected.  The advisory official states that the applicant was considered and selected by the 2002 CPT DA RCSB with a DOR to 1LT of 9 February 1999 and a PED of
8 February 2004 based on Headquarters, Departments of the Army and the Air Force, National Guard Bureau, Washington, DC, Special Orders Number 30 AR, dated 9 February 1999.  The 2002 CPT DA RCSB was approved on 17 March 2003; however, the applicant entered on active duty on 12 February 2003, which was prior to the approval date.  Therefore, he was removed from the 2002 CPT DA RCSB list.

13.  On 23 January 2007, the applicant was provided a copy of the advisory opinion in order to have the opportunity to respond.  On 13 February 2007, the applicant responded indicating the Office of Promotions, RC, USA HRC, is correct in stating there is no documentation showing his 1LT DOR was adjusted and that they are not the promotion authority for the correction.  The applicant adds that the ABCMR directed the correction not later than 14 June 2005; however, he has not received any official confirmation that his records have been corrected.  The applicant also states that he transferred from the HI ARNG to the USAR on 16 July 2001, which makes the Office of Promotions, RC, USA HRC, the promotion authority for his consideration for promotion to CPT.

14.  The applicant states, in effect, that documents he provides in support of his rebuttal show he occupied the Military Police (MP) Operations Officer position in the 1101st Garrison Support Unit - Hawaii, Fort Shafter Flats, Hawaii, beginning 17 July 2001 and "[t]he MP Operations Officer for the law enforcement mission is typically a Captain's position."  He also states, in effect, that the two Officer Evaluation Reports (OER) show that he served as Platoon Leader, from 16 July 2001 through 15 July 2002, and then as Operations Officer, from 16 July 2002 through 9 February 2003, which "indicates a higher grade position was available."  The applicant adds, in effect, that the Reserve Support Command should be able to confirm another person was assigned as the MP Platoon Leader and that he was assigned as the Operations Officer (i.e., a captain's position) from 16 July 2001 through 9 February 2003.

15.  In support of his rebuttal concerning his request for reconsideration for promotion to CPT, the applicant provides a copy of Headquarters, State of Hawaii, Office of the Adjutant General, Honolulu, Hawaii, Orders 225-123, dated 30 November 2001; DA Form 2-1 (Personnel Qualification Record); and
2 DA Forms 67-9 (Officer Evaluation Reports), covering the periods 16 July 2001 through 15 July 2002 and 16 July 2002 through 9 February 2003.  The orders, in pertinent part, show that the applicant was separated from the ARNG and transferred to the 1101st Garrison Support Unit, Fort Shafter Flats, Hawaii, effective 16 July 2001.  The DA Form 2-1 shows, in pertinent part, in Item 35 (Record of Assignments) that the applicant was assigned to the 1101st Garrison Support Unit, Fort Shafter Flats, Hawaii, effective 17 July 2001, with principal duty of MP Operations Officer (USAR Ready) and that he remained in this duty position (at least) through 17 July 2002.  Part III (Duty Description) of the
2 DA Forms 67-9 show, in pertinent part, that the applicant's principal duty title was Platoon Leader, from 16 July 2001 through 15 July 2002, and then Operations Officer, from 16 July 2002 through 9 February 2003.  Part III, section c (Significant Duties and Responsibilities) of both DA Forms 67-9 show, in pertinent part, that the applicant's "[p]rimary responsibility is to lead an MP Platoon as they augment Army Forces assigned to the 25th ID (L) & U.S. Army Hawaii."

16.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) provides policy for selecting and promoting commissioned officers (other than commissioned warrant officers) of the ARNG of the United States and of commissioned and warrant officers of the USAR. This regulation also covers promotion eligibility and qualification requirements, board schedules and procedures, and procedures on processing selection board recommendations.  Paragraph 2-13 (USAR troop program unit (TPU) position vacancy selection board) of this Army regulation specifies that officers in the grade of 1LT may be eligible for promotion consideration to CPT by a position vacancy selection board upon completion of 2 years TIG.  The position vacancy must be in the next higher grade unless an intermediate grade is not authorized in the table of organization and equipment or tables of distribution and allowances.  Promotion to fill authorized TPU position vacancies may be filled through promotion of the best-qualified and geographically available officer to the grades of captain through colonel.  All unit officers in the next lower grade must have met the minimum TIG for promotion to the next higher grade and be geographically available to serve in the position for which considered.  Officers selected by a position vacancy selection board, but who are not promoted, will be deleted from the recommended list and will not be considered to have failed selection of promotion.

17.  Army Regulation 135-155, paragraph 2-10 (Mandatory selection boards), provides that a first lieutenant will receive mandatory promotion consideration for promotion to captain upon completion of 5 years in the lower grade.  Mandatory selection boards will convene each year and will consider ARNG and Reserve officers on the Reserve Active Status List (RASL) for promotion to captain or higher who are in an active Reserve status not later than the date a respective RCSB convenes to be considered by that RCSB for a Reserve promotion.  An officer who has been recommended for promotion to the next higher grade must be on the RASL.  An officer who is on a promotion list and is removed from the RASL before the effective date of promotion will not be promoted to the next higher grade.  The regulation also specifies that officers on the ADL will not be considered.  If returned to the RASL, the officer's name will not be placed on a promotion list or nominated for promotion unless again recommended by a selection board.

18.  Paragraph 3-19 (General) of Army Regulation 135-155 provides, in pertinent part, that officers and warrant officers who have either failed of selection for promotion, or who were erroneously not considered for promotion through administrative error may be reconsidered for promotion by either a promotion advisory board or a Special Selection Board (SSB), as appropriate.  This document also provides that a SSB will convene, in pertinent part, to reconsider commissioned officers who were wrongly not considered and reconsider commissioned officers who were considered but not selected by mandatory promotion boards that convened on or after 1 October 1996.  This paragraph further provides, in pertinent part, that records of officers or former officers will be referred for SSB action when the Office of Promotions Reserve Components determines: (a) an officer was eligible for promotion consideration; however, the officer's records were, through error, not submitted to a mandatory promotion selection; (b) a review of a mandatory selection board finds that an officer's records contained a material error; or (3) the ABCMR requests such a referral.

19.  Army Regulation 600-8-29 (Officer Promotions) prescribes the policies and procedures governing promotion of Army commissioned and warrant officers on the ADL.  To be considered for promotion by a selection board, an officer must be on the ADL on the day the board convenes.  Paragraph 1-10 (Promotion eligibility) of this Army regulation provides, in pertinent part, that an officer must have at least 2 years TIG to be promoted to CPT.

20.  Paragraph 1-38 (Active date of rank responsibilities) of Army Regulation 600-8-22, provides, in pertinent part, that the designation of ADOR and PED not anticipated by a provision of this regulation will be determined on an individual basis by the Deputy Chief of Staff, G-1, or his or her designee.  Except as provided elsewhere in the regulation, the USA HRC will determine the ADOR and PED prescribed in this regulation.  To assist the USA HRC in determining ADOR or PED, field commanders must submit copies of the DD Form 220 (Active Duty Report) and active duty orders.  Additionally, if available, field commanders must also submit the DD Form 214 (Certificate of Release of Discharge from Active Duty), DA Form 1383 (Annual or Terminal Statement of Retirement Points), letter orders on transfers between Reserve Control Groups, or units, and USAR promotion letters for all officers in the categories described in paragraphs 1-38 through 1-44 of this Army regulation whose ADOR and PED will be determined by the USA HRC.  Documents should be forwarded to the Commander, USA HRC, ATTN:  AHRC-MSP-D, 200 Stovall Street, Alexandria, Virginia  22332-0443.

21.  Department of the Army Pamphlet 600-3 (Commissioned Officer Professional Development and Career Management) serves primarily as a professional development guide for all officers.  Chapter 18 (Military Police Branch), paragraph 18-3 (Critical officer developmental assignments) of this pamphlet provides the Military Police Branch officer developmental assignments and shows, in pertinent part, that for company grade officers, the focus is on the platoon leader, company and detachment command, and tactical Provost Marshall assigned within brigade combat teams.  This paragraph also provides, in pertinent part, that a primary object of the Military Police lieutenant is a branch assignment with troops.  Consistent with Army requirements, lieutenants can expect an initial assignment as a platoon leader in a Military Police company. While serving as a platoon leader, lieutenants should develop a comprehensive understanding of Army and Military Police operations that will provide a solid Warrior Ethos and values, technical and tactical proficiency necessary foundation for company command.  After completing their platoon leader assignment, lieutenants should take advantage of opportunities to broaden their technical, tactical and leadership skills as an Initial Entry Training executive officer or staff officer positions at the battalion or brigade level or law enforcement position.  Experiences on a contingency deployment or other real-world operational mission are especially valuable in preparing lieutenants for company or detachment command.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the effective date and DOR pertaining to his promotion to CPT should be corrected because the ABCMR directed adjustment of his 1LT PED and DOR; however, this action has not occurred and he has since been promoted to CPT based on the uncorrected 1LT DOR.  The applicant also contends, in effect, that based on his adjusted 1LT PED and DOR, he should have been considered for promotion to CPT by the 2001 CPT DA RCSB because he was serving in a higher graded position at the time.

2.  The evidence of record shows that the ABCMR directed the applicant's 1LT DOR be adjusted to 9 May 1998.  Therefore, he is entitled to correction of his military service records to show his 1LT DOR as 9 May 1998.

3.  The evidence of record shows that while serving in the rank of 1LT and assigned to the 1101st USAR Garrison Support Unit - Hawaii, Fort Shafter Flats, Honolulu, Hawaii, from 16 July 2001 through 9 February 2003, the applicant received 2 DA Forms 67-9 (Officer Evaluation Reports (OER)).  The first OER shows his principal duty title was "Platoon Leader" and the second OER shows his principal duty title was "Operations Officer."  The Board notes the applicant's contention that "[t]he MP Operations Officer for the law enforcement mission is typically a Captains position."  However, neither OER indicates that the applicant was serving in a higher graded (i.e., CPT) position.  In addition, the rating officials' narratives on both of the OERs show that the applicant's "primary responsibility is to lead an MP Platoon."  Moreover, the rating officials' narratives refer to the applicant's duty position as "platoon leader" and there are also several references made to "his platoon."  Furthermore, the evidence of record shows that consistent with Army requirements, lieutenants (emphasis added) can expect an initial assignment as a platoon leader in a Military Police company.  In view of all of the foregoing, the evidence of record fails to support the applicant's claim that he served in a higher graded (i.e., CPT) position.  As a result, there is insufficient evidence to show that the applicant served in a higher graded position (i.e., an authorized CPT/O-3 position) during the period under review, which would have made him eligible for consideration and promotion by the 2001 CPT DA RCSB.  Therefore, the applicant is not entitled to have his records reviewed by a promotion reconsideration board for CPT.

4.  The evidence of record shows that the applicant was considered and selected for promotion to CPT by the 2002 CPT DA RCSB, with a (then) projected PED of 8 February 2004.  The evidence of record also shows that the applicant entered active duty effective 12 February 2003; therefore, he was removed from the RASL prior to the Presidential approval date of the 2002 CPT DA RCSB on
17 March 2003.  As a result, the applicant was no longer eligible for promotion to CPT from the 2002 CPT DA RCSB list.  Therefore, he is not entitled to correction of his records to show promotion to CPT, effective 8 February 2004.

5.  The evidence of record shows that the applicant's 1LT DOR was adjusted to
9 May 1998 and that he entered active duty on 12 February 2003.  The evidence of record also shows that he did not complete 5 years TIG as a 1LT prior to entering active duty.  Therefore, he was not eligible for consideration to CPT by a mandatory selection board.  As a result, he is not eligible for consideration to CPT by a promotion advisory board or special selection board.
6.  The evidence of record shows that while serving on active duty the applicant was promoted to CPT, effective and with a DOR of 1 March 2005.  The evidence of record also indicates that the effective date and DOR of the applicant's promotion to CPT was based on a 1LT DOR of 9 February 1999, rather than an adjusted (i.e., his correct) 1LT DOR of 9 May 1998.  Therefore, the applicant is entitled to a review of his military service records by the Chief, Promotions Branch, USA HRC, Alexandria, Virginia, to determine if he is entitled to adjustment of the effective date and DOR of his promotion to CPT.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___KLW_  ___LMD_  ___EIF   _  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation of partial relief and amendment of the ABCMR’s decision in Docket Number AR20040002735, dated 1 February 2005.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected, as follows:

     a.  Chief, Personnel Division, National Guard Bureau, effect necessary action to correct the applicant's military service records to show his 1LT PED and DOR as 9 May 1998, with entitlement to all back pay and allowances;

     b.  Chief, Office of Promotions, RC, USA HRC, St. Louis, Missouri, effect necessary action to correct the applicant's USAR military service records to show his 1LT PED and DOR as 9 May 1998; and

     c.  Chief, Promotions Branch, USA HRC, Alexandria, Virginia, effect necessary action to:

	(1)  correct the applicant's ADL military service records to show his 1LT PED and DOR as 9 May 1998; and

	(2)  review the effective date and DOR of the applicant's promotion to CPT based on his adjusted 1LT PED and DOR of 9 May 1998, in concert with the date he was placed on the ADL (i.e. 12 February 2003).

	(a)  If subject review determines that adjustment of the applicant's effective date of promotion and/or DOR for CPT is warranted, take appropriate action to correct the applicant's records, with entitlement to all back pay and allowances, provided he was otherwise qualified and met all other prerequisites for promotion; or

	(b)  If subject review determines that adjustment of the applicant's effective date of promotion and/or DOR for CPT is not warranted, take appropriate action to notify the applicant, along with the reasons why adjustment is not warranted.

2.  As a result of the above corrections, the Defense Finance and Accounting Service shall be notified of the Board's determination and remit payment of all back pay (i.e., pay and allowances, less any withholdings and/or deductions) that may be due as a result of these corrections.

3.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to reconsideration for promotion to captain by a USAR TPU position vacancy selection board, mandatory selection board or special selection board.




____Kenneth L. Wright_____
          CHAIRPERSON




INDEX

CASE ID
AR20060016197
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/04/10
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT PARTIAL
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
131.0500.0000
2.

3.

4.

5.

6.