IN THE CASE OF:	  

	BOARD DATE:	  19 June 2008

	DOCKET NUMBER:  AR20070014128 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his date of rank (DOR) to captain (CPT) from 1 January 2003 to 10 August 1999.

2.  The applicant states that he was passed over twice for promotion to captain, and was subsequently discharged from the U.S. Army Reserve (USAR), because his military education was not enclosed in his promotion file.  Upon notification, he corrected the error and his record was subsequently considered by a Standby Selection Board (SSB) which selected him for promotion to CPT under the 1999 criteria.  However, he was given a later DOR of 1 January 2003 due to expired physical.  He further adds that he had a current physical in 1999 and should not have been penalized with the later DOR. 

3.  The applicant provided the following additional documentary evidence in support of his application:

	a.  Memorandum, dated 1 January 2003, USAR promotion to CPT.

	b.  U.S. Army Human Resources Command (HRC), St Louis, Missouri, Orders D-02-110008, dated 23 February 2001, Discharge Orders.

	c.  Personnel Qualification Record (PQR), dated 22 January 2008.

	d.  Headquarters, 95th Division, Oklahoma City, Oklahoma, Orders        04-198-00005, dated 16 July 2004, Assignment Orders.

	e.  Headquarters, 95th Division, Oklahoma City, Oklahoma, Orders        07-029-00001, dated 29 January 2007, Mobilization Orders. 

	f.  HRC-St. Louis, Missouri, Orders A-11-721935, dated 2 November 2007, Mobilization Orders.

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.  With prior enlisted service, the applicant was appointed as a commissioned officer in the USAR on 12 August 1991, in the rank/grade of second lieutenant (2LT)/O-1, Military Police Corps, and executed an oath of office on the same day. He entered active duty on 30 October 1991, completed the Military Police Officer Basic Course, and was honorably released from active duty and reverted back to his USAR status on 7 March 1992.

3.  On 29 July 1992, the applicant applied for Federal recognition in the Oregon Army National Guard (ORARNG) and was subsequently appointed as a 2LT/O-1 in that component and executed an oath of office on 10 September 1992.  He was assigned to the 41st Infantry Brigade, ORARNG, Portland, Oregon.

4.  On 4 August 1995, Headquarters, ORARNG, Salem, Oregon, published Orders 150-42, announcing the applicant's promotion to first Lieutenant    (1LT)/O-2, and on 31 August 1995, he was extended Federal recognition for that promotion, effective 11 August 1994.

5.  On 16 July 1997, Headquarters, ORARNG, Salem, Oregon, published Orders 136-15, honorably separating the applicant from the ORARNG and transferring him to the USAR Control Group (Reinforcement), effective 14 July 1997.


6.  The applicant's record is void of any documentation that describes his status and/or activities in the USAR from 15 July 1997 until 23 February 2001, when the U.S. Army Reserve Personnel Command (now known as HRC), St Louis, Missouri, published Orders D-02-110008, honorably discharging him from the USAR Control Group (Reinforcement), effective 1 April 2001.

7.  The facts and circumstances surrounding the applicant's promotion Passover and/or selection for promotion to CPT are not available for review with this case.  However, subsequent documentation shows that his promotion record was considered by the December 2001 Department of the Army (DA) SSB, under the 1999 criteria, and that he was selected for promotion to CPT with a promotion eligibility date (PED) of 10 August 1999. 

8.  On 12 July 2002, by letter, the Office of Promotions, Reserve Components, HRC-St. Louis, Missouri, notified the applicant that his USAR discharge orders were revoked and that he would have received his promotion letter if he had a current physical and security clearance.  The letter further explained that his physical, dated 1 January 1994, was outdated by his PED, and that he needed to have a physical taken in order to receive his promotion letter.  A physical taken after the PED on the select letter would change his promotion eligibility to the date of his physical per the 1996 Reserve Officer Personnel Management Act (ROPMA). 

9.  There is no indication in the applicant's records that he had an earlier physical or that he complied with this letter.

10.  On 1 January 2003, by memorandum, HRC-St. Louis, Missouri, notified the applicant that he was promoted to CPT in the USAR effective 1 January 2003.

11.  In an advisory opinion obtained in the processing of this case on 10 April 2008, the Chief, Special Actions Branch, HRC-St. Louis, Missouri, stated that the applicant was selected for promotion by the December 2001 DA SSB under the 1999 criteria with a PED of 10 August 1999.  His current physical, dated 1 January 1994, was outdated and did not meet the five year requirement in accordance with paragraphs 4-11 and 4-12 of Army Regulation 135-155 and that he was notified on 12 July 2002 to have the proper medical forms completed in order to process his promotion memorandum.  In accordance with paragraph     4-21 of that regulation, an officer will be promoted after all promotion qualifications are met.  Under the 1996 ROPMA criteria, the officer was given a 1 January 2003 DOR, the date of his current physical.  If the applicant can provide documentation to verify he did possess the physical that was within the five year window, he will be eligible for an earlier DOR, providing he met all the requirements. 
12.  The applicant was furnished a copy of this advisory opinion on 18 April 2008, but did not respond.  He was contacted by electronic mail (email) on 29 May 2008 and furnished another copy of the advisory opinion on 3 June 2008, but still did not respond.

13.  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.  

14.  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); an (6)  Be a satisfactory participant (attend unit drills).

15.  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.  

16.  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). 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 he is entitled to correction of his DOR to CPT from 1 January 2003 to 10 August 1999.
2.  The applicant was selected for promotion to CPT by the December 2001 DA SSB, under the 1999 criteria.  He was subsequently notified that his physical and security clearance were outdated.  There is no evidence that, upon receiving his promotion notification memorandum and/or upon receiving a follow on letter regarding his physical and security clearance, that he had a current security clearance or was medically qualified for retention.  The earliest date he met all qualifications for promotion to CPT was 1 January 2003, the date of his current physical.  

3.  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 1 January 2003 date of rank and effective date for promotion is correct and requires no further action.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.




      ___        XXX                ___
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20070014128



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ABCMR Record of Proceedings (cont)                                         AR20070014128



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