RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	17 January 2008  
	DOCKET NUMBER:  AR20070003566 


	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.  


Ms. Catherine C. Mitrano

Director
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, promotion to lieutenant colonel (LTC) based on his selection by the 2005 LTC Reserve Component Selection Board (RCSB) with a promotion effective date of March 2006.

2.  The applicant states, in effect, that he was selected by the 2005 RCSB for promotion to LTC in January 2006 and transferred to an O-5 position in March 2006.  The applicant states, in effect, that in April 2006, a medical review board found him unfit for duty and he appealed that decision.  He states, that in May 2006 he took the Army Physical Fitness Test (APFT), which was submitted with his promotion packet.  The applicant states, in effect, that he believes he should have been promoted because the evaluation was not finalized by the medical board.  He concludes by stating that he could have been promoted into the Individual Ready Reserve (IRR).  

3.  The applicant provides copies of reassignment Orders Number 06-096-00059, dated 6 April 2006; a memorandum subject:  Preposition Promotion List for 2005 DA RCSB for LTC, APL Board, dated 3 January 2006; a copy of DA form 705 (Army Physical fitness Test Scorecard); a copy of DD Form 550-R (Body Fat Content Worksheet (Male)); and a copy of DA Form 199, (Physical Evaluation Board (PEB)) Proceedings, dated 1 May 2006, in support of his request.   

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was appointed in the United States Army Reserve (USAR), as a second lieutenant, effective 23 May 1986, with prior enlisted service.  

2.  He was promoted to major effective 13 June 2000.  

3.  The Preposition Promotion List for the 2005 DA RCSB for LTC, APL dated
3 January 2006 shows that the applicant was considered and recommended for promotion to LTC by the 2005 RCSB.  The President approved the board results on 30 December 2005.  The memorandum also advised, to be promoted, he must remain in an Reserve Active Status (RASL) and meet the promotion eligibility criteria set forth in Army Regulation 135-155.  Failure to comply with these instructions may result in his removal from the selection list.

4.  Orders Number 06-096-0059, Department of the Army, Headquarters, 81st Regional Readiness Command, Birmingham Alabama, dated 6 April 2006, show the applicant was reassigned from his current TPU to a TPU outside of the Command effective 6 April 2006.  

5.  DA Form 199, dated 1 May 2006, shows that the applicant appeared at a PEB and was found to be physically unfit.

6.  DA Form 705, unreadable date, submitted by the applicant, shows that he completed a record APFT.   

7.  DA Form 5500-R dated 6 May 2006, submitted by the applicant, shows that he was in compliance with the Army height and weight standards.

8.  In an advisory opinion, dated 27 March 2007, the Chief, Special Actions Branch, Office of Promotions, Reserve Components, HRC, St. Louis, stated that the applicant was selected for promotion to LTC by the 2005 DA RCSB and the board was approved on 30 December 2005.  At that time the applicant was under suspension of favorable action (FLAG) and was not in a valid higher graded position.  He was assigned to the higher graded position on 6 April 2006; however, he was still under a FLAG.  The FLAG was removed on 6 May 2006 and the applicant was assigned to a legitimate higher position.  The advisory opinion continues that prior to the assignment, the applicant appeared before a PEB on 1 May 2006 and was deemed permanently disqualified for duty.  In accordance with Army Regulation 135-155, an officer selected for promotion must meet all promotion requirements.  Based on the fact that the applicant was not medically qualified, removed from the RASL, and was previously FLAGGED he was not eligible for promotion to LTC.  In view of the facts, it was recommended the applicant's request be denied.

9.  The advisory opinion was forwarded to the applicant for acknowledgement and rebuttal on 9 June 2006.  The applicant did not respond.

10.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  The regulation specifies that when an officer has been recommended for promotion to the next higher grade, the officer’s promotion is automatically delayed when the officer is under suspension of favorable personnel actions.  The regulation also specifies that the date of rank and effective date of promotion after an involuntary delay due to any adverse administrative action, will be the day after the date a filing of determination is made.



11.  Paragraph 4-11a (3-5) of the Reserves officers’ promotion regulation specifies that the officer must be medically qualified, have undergone a favorable security screening, and must meet standards of the Army Body Composition Program.  Paragraph 4-13 specifies that promotion authorities will ensure that a favorable security screening is completed before announcing a promotion.  The military personnel records jacket will be screened to ensure that derogatory or unfavorable suitability information is not contained therein for promotion purposes.  If the results of this screening are favorable, final promotion action may proceed.  If the screening reveals derogatory or unsuitable information, the promotion authority will cause a National Agency Check (NAC) to be conducted.  Final action on the promotion will be withheld until the results of the NAC are received.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be promoted to LTC/O-5 was carefully considered.  However, there is insufficient evidence in support on his contention.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The evidence of record does not show that the applicant met all promotion requirements in accordance with Army Regulation 135-155, without evidence to show that the applicant was medically qualified or fit for duty, the Board cannot grant the applicant’s request for promotion.  

3.  In accordance with pertinent regulations, an officer selected for promotion must be medically qualified, have undergone a favorable security screening, and must have met standards of the Army Body Composition Program, and not be under suspension of favorable personnel actions.  The applicant has not submitted sufficient evidence to support that he is qualified for promotion to LTC at this time.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

5.  Therefore, in view of the foregoing, there is no basis for granting the applicant's request.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__HOF__  _RCH____  ____J___  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. 




   _____
          CHAIRPERSON


INDEX

CASE ID
AR20070003566
SUFFIX

RECON

DATE BOARDED
20080117
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
131.0000
2.

3.

4.

5.

6.