RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  16 October 2007
	DOCKET NUMBER:  AR20070009131 


	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

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Ms. Shirley L. Powell

Chairperson

Mr. James E. Anderholm

Member

Mr. Joe R. Schroeder

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 his date of rank (DOR) to major (MAJ) be adjusted from 8 October 2003 to 19 June 2002.

2.  The applicant states, in effect, that due to an unspecified administrative error on the part of the U.S. Army Reserve (USAR), he was not selected for promotion by the Calendar Year 2002 (CY 2002) MAJ Reserve Component Selection Board (RCSB).  He was selected by the CY 2003 RCSB with a date of rank of 8 October 2003.  However, he was also later selected by a Special Selection Board (SSB) that adjourned on 1 August 2006, with a date of rank and an effective date of 19 June 2002.

3.  The applicant provides, in support of his application, a copy of the U.S. Army Human Resources Command, St. Louis, Missouri, Memorandum, dated 31 January 2007, notifying the applicant of his eligibility for promotion as a Reserve officer as a result of a Special Selection Board (SSB). 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show that he was commissioned and appointed in the Pennsylvania Army National Guard (PAARNG) as a 2nd lieutenant on 24 February 1992 and that he was later conditionally released to the Texas Army National Guard (TXARNG).  He is currently a TXARNG MAJ in the Armor Corps. His DOR to captain (CPT) was 11 August 1995 and his current DOR to MAJ is 8 October 2003.

3.  On 16 July 2002, the U.S. Total Army Personnel Command, St. Louis, Missouri, notified the applicant by memorandum that he was not selected for promotion to MAJ by the CY 2002 RCSB. 
3.  On 8 October 2003, the National Guard Bureau, Arlington, Virginia, notified the applicant by memorandum of his promotion to MAJ as a Reserve commissioned officer of the Army with 8 October 2003 as his effective date and date of rank.  

4.  National Guard Bureau, Special Orders 257 R, dated 8 October 2003, extended the applicant Federal Recognition for promotion to MAJ effective 8 October 2003.

5.  On 31 January 2007, the U.S. Army Human Resources Command, St. Louis, Missouri, notified the applicant by memorandum of his selection for promotion to MAJ by Special Selection Board 2006SS08R5 that convened on 1 August 2006. The applicant was also notified that his effective DOR was either 19 June 2002, or the date Federal Recognition is extended as a MAJ, or the date following the date Federal Recognition is terminated in his current Reserve grade of CPT.

6.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Division, National Guard Bureau.  After a thorough review of the facts and circumstances of the applicant's case, the National Guard Bureau recommended that his date of rank to MAJ be adjusted to 19 June 2002 based on the Special Selection Board memorandum of 31 January 2007.  The applicant was provided a copy of the National Guard Bureau advisory opinion for review and comment.  On 14 September 2007, the applicant concurred with the advisory opinion and elected not to provide written comments.

7.  AR 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) applies to commissioned officers of the ARNG and the US Army Reserve (USAR) on the Reserve Active Status List.  It states, in pertinent part, that promotion reconsideration by a standby promotion advisory board or Special Selection Board may only be based on erroneous non-consideration or material error which existed in the record at the time of consideration or record was not submitted to a mandatory promotion selection board for consideration.  Material error in his/her record that in the judgment of the reviewing official, it caused an individual non-selection by a promotion selection board; if such error(s) had been corrected at the time the individual was considered, a reasonable change would have resulted that the individual would have been recommended for promotion.  This regulation further states that boards are not required divulging the proceedings or the reason for non-selection, except where an individual is not qualified, due to non-completion of required military schooling.


8.  United States Code (USC), Title 10, section 14502(e) states that an officer who is placed on a promotion list as a result of recommendation for promotion by a Special Selection Board (SSB) shall, as soon as practicable be appointed to the next higher grade in accordance with the law and policies which would have been applicable had the officer been recommended for promotion by the board which would have considered or which did consider the officer.  An officer who is promoted to the next higher grade as a result of recommendation of an SSB, upon promotion, has the same date of rank, the same effective date for the pay and allowances of that grade, and the same position on the Reserve active- status list 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to adjust his promotion effective date and date of rank to 19 June 2002.

2.  Evidence of records shows that the SSB convened to reconsider officers who may have been improperly non-selected for promotion.  Additionally, the 2002 RCSB Memorandum of Instructions (MOI) for that board required captains being considered for promotion to major to possess a baccalaureate degree.  This requirement did not provide and exception for officers who were appointed to captain before October 1995.  

3.  Evidence of records further shows that the 2006 SSB selected the applicant for promotion to major with a date of rank and an effective date of 19 June 2002. Therefore, he is entitled to correction of his records to adjust his promotion effective date and date of rank to 19 June 2002 and to receive all back pay and allowances. 

BOARD VOTE:

__slp___  __jea___  __jrs___  GRANT FULL RELIEF 

________  ________  ________  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 for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected to show: 

	a.  He was promoted to the rank of MAJ with an effective date and date of rank of 19 June 2002; and

	b.  He was extended Federal Recognition as an MAJ on 19 June 2002.  

2.  The Board further recommends that the individual concerned be paid any pay and allowance adjustment resulting from his effective date and date of rank adjustment.




							Shirley L. Powell
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070009131
SUFFIX

RECON

DATE BOARDED
20071016
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(GRANT)
REVIEW AUTHORITY

ISSUES         1.
131.0500
2.

3.

4.

5.

6.