RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  7 February 2008
	DOCKET NUMBER:  AR20070010331 


	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:


Mr. William D. Powers

Chairperson

Ms. Rose M. Lys

Member

Mr. Qawiy A. Sabree

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 correction of her date of rank to major (MAJ)/O-4 from 31 August 2005 to a date appropriate to a 1999 Selection for Promotion and restoration of back pay based on the corrected date of rank.

2.  The applicant states, in effect, that she resigned her Regular Army commission in the grade of captain (CPT)/O-3 under the Voluntary Separation Incentive (VSI) program, on 31 December 1992, and accepted a U.S. Army Reserve (USAR) commission on the next day.  She was notified of her eligibility for promotion to MAJ/O-4 on 9 September 1999 and submitted a copy of her physical examination on 26 October 1999 to the Army Reserve Personnel Center (ARPERCEN), St. Louis, Missouri [now known as the U.S. Army Human Resources Command (HRC), St. Louis, Missouri].  She resubmitted another copy of her physical examination to ARPERCEN on 17 December 1999 and remained in good standing in the IRR, but was never promoted to MAJ/O-4.  She later joined an Individual Mobilization Augmentee (IMA) unit where her commander inquired repeatedly about her promotion with no luck.  She was eventually told that, as an Army Medical Department Officer (AMEDD) officer, she had to leave her Troop Program Unit (TPU) and transfer back to the IRR before she could get promoted. She further adds that as a result of her transfer from TPU to IRR on 31 August 2005, she interrupted her service to her unit and was unable to attend drill or to train deploying units.  She was finally able to contact HRC-St. Louis, Missouri, on 28 September 2005, and was told the reason she was not promoted was because she had been discharged in 2000.  She protested this erroneous claim and defended her status as she had been assigned, transferred, attended Army schools, paid, and received retirement points since 2000.  The next day she received her promotion order to MAJ/O-4 with an effective date of 31 August 2005, the date she transferred back to the IRR.  She concludes that if HRC-St. Louis did not erroneously mark her records as those of discharged, she would have promoted in 1999.  She likes her Army service and believes she can contribute to the Global War on Terror (GWOT) effort.  She has proved her allegiance to the profession not only through service in various components, but also through self-improvement through attendance at military schools. 

3.  The applicant provides the following additional documentary evidence in support of her application:

	a.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 31 December 1992.

b.  U.S. Total Army Personnel Command (now known as HRC), St. Louis, Missouri, Memorandum, dated 31 December 1992, appointing her as a Reserve commissioned officer.

	c.  Department of the Army official photograph. 

	d.  HRC-St. Louis, Missouri, Memorandum, dated 9 September 1999, Notification of Promotion Eligibility Status.

	e.  Page 1 of Standard Form 93 (Report of Medical History), dated 26 October 2000. 

f.  Headquarters, 75th Division (Training Support), Houston, Texas, Orders 05-243-00001, dated 31 August 2005, transfer to the USAR Control Group (Reinforcement).

g.  HRC-St. Louis, Missouri, Orders B-09-506270, dated 29 September 2005, promotion order to MAJ/O-4.

h.  HRC-St. Louis, Missouri, Memorandum, dated 16 October 2005, transfer to the IRR.

i.  HRC-St. Louis, Missouri, Orders C-10-523511, dated 19 October 2005, assignment to the 1st Brigade, 75th Division.

	j.  ARPC Form 249E (Chronological Statement of Retirement Points), dated 12 June 2006.

4.  On 14 December 2007, the applicant provided the following additional documentary evidence in support of her application:

	a.  Personnel Qualification Record, dated 13 December 2007.

	b.  Headquarters, 29th Infantry Division, Fort Belvoir, Virginia, Permanent Order 262-001, dated 19 September 2007, and Certificate, awarding her the Army Commendation Medal (1st Award).

	c.  Memorandum, dated 21 October 2006, Letter of Acceptance for Interstate Transfer.

	d.  Undated DA Form 638 (Recommendation for Award), and Certificate, showing she was awarded the Army Commendation Medal.
	e.  DA Form 1059 (Service School Academic Evaluation Report), dated 17 July 2006.

	f.  Certificate of Completion, Command and General Staff College, dated 29 June 2006.

	g.  DA Form 67-9 (Officer Evaluation Report), for the periods 20041203 to 20040614; 20040615 to 20050614; and 20060515 to 20060614.

	h.  DA Form 1059, and Certificate of Completion, dated 13 March 2005, completion of Combined Arms Exercise.

	i.  Report of Medical History, dated 26 October 2000. 

	j.  DA Form 67-8 (U.S. Army Officer Evaluation Report), for the periods 920702-921202; 920316-920701; 910316-920315; 890907-900906; 880429-880826; 871217-880429; 851208-860613; 850722-851207; 850401-850721; 841015-850331; 831207-841014; and 830617 to 831206.

	k.  DA Form 638-1 (Recommendation For Award), dated 6 February 1992, and Certificate, awarding her the Army Commendation Medal.

	l.  Headquarters, U.S. Army Medical Department Activity, Fort Bragg, North Carolina, Permanent Order 49-03, and Certificate, showing she was awarded the Army Achievement Medal (3rd Oak Leaf Cluster).

	m.  Copy of Academic Record, dated 20 May 1993, Long Island University.

	n.  U.S. Army Aviation Center Diploma, dated 11 January 1990.

	o.  DA Form 1059, dated 16 March 1980, Aviation Officer Advanced Course.

	p.  DA Form 1059, dated 24 August 1987, Officer Rotary Wing Aviator.

	q.  Headquarters, U.S. Army Aviation Center, Fort Rucker, Alabama, Orders 134-5, dated 14 July 1987.

	r.  Headquarters, 69th Air Defense Artillery Brigade, Permanent Orders 40-5, dated 27 June 1987, and Certificate, awarding her the Army Achievement Medal.
	s.  Headquarters, 3rd Battalion, 7th Air Defense Artillery, Permanent Orders 31-6, dated 8 August 1985, and Certificate, awarding her the Army Achievement Medal.

	t.  Headquarters, 3rd Battalion, 7th Air Defense Artillery, Permanent Orders 25-3, dated 19 June 1985, and Certificate, awarding her the Army Achievement Medal.

	u.  Headquarters, 3rd Battalion, 7th Air Defense Artillery, Permanent Orders 3-1, dated 5 March 1985, and Certificate, awarding her the Army Achievement Medal.

	v.  Headquarters, U.S. Army Infantry Center, Fort Benning, Georgia, Orders 192-164, dated 11 July 1985, and Certificate, awarding her the Parachutist Badge.

	w.  DA Form 1059, dated 7 July 1983, Air Defense Artillery Officer Basic Course.

	x.  Memorandum, dated 5 September 1980, Verification of Service-Cuban Refugee Settlement.

	y.  Rebuttal to Advisory Opinion.

CONSIDERATION OF EVIDENCE:

1.  The applicant was a Regular Army CPT/O-3 who was commissioned through the U.S. Military Academy as a 2nd lieutenant (2LT)/O-1 on 21 December 1982 in the Air Defense Artillery Corps.  She was subsequently promoted to 1st lieutenant (1LT)/O-2 on 21 June 1984 and to CPT/O-3 on 1 December 1986.  She also changed her specialty branch to the Medical Services Corps in June 1986. 

2.  On an unknown date in 1992, the applicant submitted her request for unqualified resignation from the Regular Army.  She was honorably discharged on 31 December 1992 in accordance with chapter 3 of Army Regulation 635-100 (Officer Personnel) under the Voluntary Separation Incentive (VSI) program The DD Form 214 she was issued at the time shows she had completed 10 years and 11 days of creditable military service.


3.  On 31 December 1992, by memorandum, HRC-St. Louis, Missouri, notified the applicant that she was appointed as a USAR commissioned officer, in the rank/grade of CPT/O-3, in the Medical Services Corps.  She executed an oath of office on the same date.

4.  On 9 September 1999, by memorandum, HRC-St. Louis, Missouri, notified the applicant of her selection for promotion to MAJ/O-4 with a promotion eligibility date of 30 November 1993.  The memorandum also informed the applicant that to be promoted she had to remain in an active status, had to have a current security clearance, had to be medically qualified for retention and meet the standards of Army Regulation 600-9 (Army Weight Control Program), and she had to be assigned to a duty position authorized a grade equal to or higher than the grade in which selected.

5.  On 26 October 2000, the applicant underwent a medical exam at the Aviation Medicine Clinic, Schofield Barracks, Hawaii.  However, her military personnel records reveal only page 1 of the Standard Form 93 (Report of Medical History).

6.  The applicant's records do not contain a copy of Orders assigning her to a TPU unit.  However, on 31 August 2005, Headquarters, 75th Division (Training Support), Houston, Texas, published Orders 05-243-00001, releasing the applicant from the 2nd Simulation Exercise Group, 1st Brigade, 75th Division (TPU assignment) and assigning her to the USAR Control Group (Reinforcement) for "Cogent Personal Reasons" in accordance with Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers).

7.  On 29 September 2005, HRC-St. Louis, Missouri, published Orders              B-09-506270, announcing the applicant's promotion to MAJ/O-4 with an effective date and a date of rank as 31 August 2005.

8.  On 19 October 2005, HRC-St. Louis, Missouri, published Orders                   C-10-523511, releasing the applicant from the USAR (Control Group) and assigning her to the 2nd Simulation Exercise Group, 1st Brigade, 75th Division (TPU assignment), effective 13 October 2005.

9.  On 30 November 2006, the applicant was appointed as an Army National Guard officer in the Virginia Army National Guard (VAARNG), in the grade of MAJ/O-4, Medical Services Corps, effective 21 November 2006.



10.  In an advisory opinion obtained in the processing of this case, the Chief, Special Actions, Office of Promotions, Reserve Components, stated on 26 September 2007, that the applicant was transferred from the Regular Army to the U.S. Army Reserve on 1 January 1993 [sic 1992].  She was further considered and selected for promotion by the 1999 Major Reserve Component selection Board (RCSB).  The applicant was promoted on 31 August 2005.  The Chief also stated that it appeared the applicant was not promoted earlier due to an outdated physical and security clearance.  The security clearance seemed to be the document needed to promote the applicant but her security clearance was not updated until 19 August 2000.  Additionally, she only sent in one page of her physical examination report dated 26 October 2000 with her application.  The USAR Promotion Branch needs more than the first page of the medical report to establish her date of rank.  She would have also needed to be in the higher grade position while in a unit.  This was the reason she was transferred to the IRR on 31 August 2005.  Therefore, based on the information available, she was given the earliest date possible.

11.  The applicant was provided a copy of the advisory opinion on 26 October 2007 but did not respond by the suspense date.  However, she later submitted a rebuttal to the advisory opinion on 14 December 2007.  She stated that she feels she had complied with all the requirements set before her in the letter that notified her of promotion status, as follows:

	a.  she was in a TPU organization and the letter did not require her to provide proof of assignment to a TPU organization.

	b.  she was led to believe that she was separated from the USAR despite the fact that there was no order discharging her.  She further adds that she continued to receive military pay, assignments to various units, and credit for retirement points.

	c.  she worked in highly sensitive positions that included highly classified tactics, programs, equipment, operations, and communications.  As such, she was required to possess a valid and current security clearance at all times.

	d.  she completed a flight physical in October and November 2000 and complied with the physical fitness standards of Army Regulation 600-9 and that her PULHES was 111111, indicating she was medically fit.

	e.  she joined a USAR unit after the tragic events of 11 September 2001, and occupied a position identical to that of her rater (a major).

	f.  she does not have assignment orders to a TPU, but her Officer Evaluation reports clearly show that she was assigned to the 2nd SEG, 1st Brigade, 75th Division.

	g.  she concluded that errors by her career manager kept her from being selected for promotion to lieutenant colonel (LTC/O-5) because she was not promoted to MAJ/O-4 in a timely manner, and thus she is at risk of being forced out of the Army because of the number of years she has served. 

12.  Army Regulation 140-10 covers policy and procedures for assigning, attaching, removing, and transferring U.S. Army Reserve Soldiers.  It defines Ready Reserve Control Groups and the Selected Reserve.  For strength accountability purposes, the IRR consists of pre-trained individual Soldiers assigned to various control groups for control and administration who are available for mobilization in time of war or a national emergency declared by Congress.  One of the IRR control groups under the administrative jurisdiction of the commander HRC-St. Louis, Missouri, is the USAR Control Group (Reinforcement).  Assignment in this category is authorized for a Soldier with or without a remaining statutory military service obligation, under one of the following conditions:  The soldier has been credited with 3 or more years of active duty; completed 2 years of active duty and 1 year in an ARNGUS or USAR TPU; had Federal recognition withdrawn as a result of a selection board convened, per NGR 635–102, and the soldier has requested assignment in writing; or has no mandatory training requirement.

13.  Paragraph 4-4 of this regulation states, in effect, that an officer who is not obligated to serve in a TPU, an IMA assignment, or on active duty in Active Guard Reserve (AGR) status, by statute or contract may be reassigned to the USAR Control Group (Reinforcement) on request.  Voluntary reassignment from a TPU or IMA position to USAR Control Group (Reinforcement) is authorized when there is a confirmed unresolvable employment conflict; when the officer has a change of address to an area beyond reasonable commuting distance of a USAR training center; or for cogent personal reasons provided.  Army Medical Department (AMEDD) officers obligated to serve in the Ready Reserve by statute can request reassignment at any time.  However, AMEDD officers obligated to serve in a TPU by contract may not be reassigned until the contractual obligation is completed.




14.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other then General Officers), prescribes policy for selecting and promoting commissioned officers of both the Army National Guard of the United States (ARNGUS) and the U.S. Army Reserve (USAR), 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.  

15.  Paragraph 4-11 of Army Regulation 135-155 states that an officer who has been recommended for promotion to the next higher grade must meet the requirements listed below before being promoted in the Reserve Components.  The officer must:

	(1)  Be on the Reserve Army Selection List serving in an active status; 
	(2)  Be in the zone of consideration as appropriate; 
	(3)  Be medically qualified; 
	(4)  Have undergone a favorable security screening; 
	(5)  Meet standards of the Army Body Composition Program (AR 600-9); 
	(6)  Be a satisfactory participant (attend unit drills).

16.  Paragraphs 4-12 and 4-13 of Army Regulation 135-155 state that each Ready Reserve officer is required to undergo a medical examination in accordance with Army Regulation 40-501 (Standards of Medical Fitness) at least once every 5 years.  A partial or temporary physical disability resulting from a disease, wound, or injury will not disqualify an officer for promotion.  Additionally, Promotion authorities will ensure that a favorable security screening is completed before announcing a promotion.  

17.  Paragraph 4-15 of Army Regulation 135-155 states, in pertinent part, that the effective date of promotion for commissioned officers (except commissioned warrant officers) may not precede the date on which the promotion memorandum is issued.  The promotion memorandum is not issued before the date the promotion board results are approved and confirmed by the Senate (if required). In addition, the officer must already be assigned/attached to a position in the higher grade or, if an IRR/IMA officer selected by a mandatory promotion board, have completed the maximum years of service in grade in the current grade.

18.  Paragraph 4-15 of Army Regulation 135-155 states that the effective date of promotion may not precede the date of the promotion memorandum.  An officer is promoted after selection if all qualifications for promotion are met.  When an officer does not meet the qualifications for promotion, the effective date of promotion will not be earlier than the later date all qualifications are met. 
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that she is entitled to correction of her date of rank to MAJ/O-4 from 31 August 2005 to a date appropriate to a 1999 Selection for Promotion and restoration of back pay based on the corrected date of rank.

2.  The applicant's impeccable records, achievements, awards, and evaluations during her active duty service from December 1982 to December 1992 are noted. However, there is no evidence that she was erroneously discharged from the USAR.  Additionally, there is no evidence that, upon receiving her promotion notification memorandum on 9 September 1999, she had a current security clearance, was medically qualified for retention, or met the height and weight standards.  Additionally, there is no evidence that the applicant was assigned to a duty position authorized a grade equal to or higher than the grade in which selected.

3.  The earliest date the applicant met all qualifications for promotion to MAJ/O-4 was 31 August 2005, the date she was reassigned from her TPU assignment at the 2nd Simulation Exercise Group, 1st Brigade, 75th Division, to the USAR Control Group (Reinforcement).  

4.  When an officer does not meet the qualifications for promotion, the effective date of promotion will not be earlier than the later date all qualifications are met.  Therefore, the applicant's 31 August 2005 date of rank and effective date for promotion is accurate.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__wdp___  __rml___  __qas___  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.



							William D. Powers
______________________
          CHAIRPERSON


INDEX

CASE ID
AR
SUFFIX

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

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.