RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	1 May 2008  
	DOCKET NUMBER:  AR20070018452 


	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.













	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, adjustment to his date of rank for captain to 11 August 2003.

2.  The applicant states, in effect, that his date of rank for captain should be adjusted in accordance with a unit vacancy promotion recommendation.  He also states that his DA Form 2464-R (USAR Unit Vacancy Promotion Recommendation) and promotion packet were forwarded on 11 August 2003, while he was preparing for his second deployment.  After sending this packet through his chain of command, he was advised that there was a discrepancy in his college transcript.  After numerous attempts to rectify while on active duty, he could not communicate efficiently with the college to correct.  Upon his return from active duty, the discrepancy was reviewed and corrected.  Upon receiving his captain promotion orders, he was told by the Human Resources Command (HRC), St. Louis, Missouri, that he should file a DD Form 149 (Application for Correction of Military Record).  This Board's decision will factor greatly in his decision on staying an active troop program unit (TPU) officer.

3.  In support of his application, the applicant provides copies of his 1991 DD Form 214 (Certificate of Release or Discharge from Active Duty); his Officer Candidate School diploma; his officer evaluation reports for the periods ending 28 February 2003, 27 February 2004, and 27 October 2004; his August 2003 mobilization memorandum; an undated DA Form 2464-R; his TPU Position Vacancy Board Checklist; a DA Form 4935-R (Request for Unit Vacancy Fill); his 2003 and 2004 DD Forms 214; his Combat Action Badge orders; his Army Physical Fitness Test (APFT) Scorecard; and his captain promotion 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.  The applicant’s military records show he was appointed in the Illinois Army National Guard (ILARNG), as a second lieutenant, effective 30 September 1998, with prior enlisted service.  He was separated from the ILARNG effective 1 October 1999 and transferred to the United States Army Reserve. 

3.  The applicant was promoted to first lieutenant effective 29 September 2000.  Based on the completion of 2 years minimum time in grade (TIG), his promotion eligibility date (PED) for captain was 28 September 2002, upon consideration and selection by a position vacancy board (PVB).  

4.  The applicant was ordered to active duty in support of Operation Enduring Freedom/Iraqi Freedom and entered active duty effective 18 August 2003.

5.  The applicant was considered and selected for promotion to captain by the 2004 Reserve Components Selection Board (RCSB) that convened on 4 November 2004.  

6.  The applicant was released from active duty effective 21 December 2004 and transferred to a Reserve TPU.

7.  The applicant submits an undated DA Form 2464-R, wherein Headquarters and Headquarters Detachment, 419th Transportation Battalion, recommended him for promotion to a unit position vacancy captain’s position.

8.  The applicant also submits a DA Form 4935-R, dated 7 January 2004, wherein Headquarters and Headquarters Detachment, 419th Transportation Battalion, recommended him for promotion to a unit position vacancy captain’s position.

9.  Orders Number B-09-607229, dated 27 September 2006, were published promoting the applicant to captain with a promotion effective date and date of rank of 15 July 2005.

10.  Based on the completion of 5 years maximum TIG, his PED for captain was 28 September 2005, upon consideration and selection by a mandatory RCSB.

11.  In an advisory opinion, dated 12 February 2008, the Chief, Special Actions, DA Promotions, HRC, St. Louis, stated, that the applicant was considered and selected for promotion to captain by the 2004 RCSB, with a civilian education waiver.  The applicant was promoted to captain on 15 July 2005, the date he was placed in a higher graded position.  His civilian education was conferred on 

9 May 2003.  A current security clearance and APFT were waived.  The applicant is requesting that he be given 11 August 2003 and that date is the date a position became vacant and also prior to his promotion eligibility date of 28 September 2005.  The applicant applied for the March 2005 Position Vacancy Board (PVB), but was deleted based on his selection by the 2004 RCSB.  The 2004 RCSB was approved on 14 February 2005.  The applicant cannot have a date earlier than the date of the board by which he was selected.  The applicant was placed in a higher graded position on 15 July 2005, this is the earliest date he could be promoted.  

12.  The advisory opinion was forwarded to the applicant for acknowledgement and/or rebuttal on 6 March 2008.  He did not respond.

13.  Army Regulation 135-155, prescribes the policies and procedures for the promotion of Reserve Component officers.  The regulation specifies that officers in the grade of first lieutenant may be eligible for promotion consideration to captain by a PVB upon completion of 2 years minimum TIG.  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 TPU officers in the next lower grade must have met the minimum TIG for promotion to the next higher grade and be geographically (non-mobilized) available to serve in the position for which considered.  The existence of a valid position will be determined by counting certain officers against the strength authorized.  The area commander will ensure that the intent of the position vacancy fill procedures have been complied with before proceeding with PVB promotion consideration. 

14.  Army Regulation 135-155 also specifies that the unit commander will initiate position vacancy promotion procedures and forward a memorandum listing all unit officers eligible for promotion consideration.  The memorandum will include the following information:  rank of position, branch, area of concentration, position title, unit, UIC, location of unit, table of organization and equipment/table of distribution and allowances number, PARA/LINE number, and date of position vacancy.  

15.  Army Regulation 135-155 also specifies that a first lieutenant will receive mandatory promotion consideration for promotion to captain upon completion of 5 years in the lower grade.  An officer selected for the first time for promotion to the next higher grade may be promoted on or before the date that he/she completes the maximum years of service.  The officer must be serving in a position requiring the higher grade or assigned to the Individual Ready Reserve.  Promotion cannot be effective prior to approval of respective boards by the designated approval authority. 

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to adjustment of his date of rank for captain to 11 August 2003.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The evidence of record shows the applicant’s unit twice recommended him to fill a captain’s position.  However, It appears that the applicant was not processed by his command for consideration by a PVB in 2003 and 2004, as he was deployed at the time and not in a permanent position.  

3.  The applicant was considered and selected for promotion to captain by the 2004 RCSB.  The board results were approved on 14 February 2005.  However, at the time, the applicant had not met all the requirements for the promotion.  The applicant was assigned to a captain’s position on 15 July 2005 and promoted based on that assignment.  Therefore, he received the earliest date to which he was entitled.   

4.  It is concluded that since the applicant could not be promoted any earlier without the benefit of an authorized position vacancy and a selection by a PVB, he was appropriately promoted to captain based on his selection by the 2004 RCSB and assignment to the higher graded position.  There is no indication that his promotion effective date and date of rank for captain was administratively delayed, unjust, or inequitable.  

5.  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

____x___  ___x_____  __x_____  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.




      __________x____________
                CHAIRPERSON



ABCMR Record of Proceedings (cont)                                         AR20070018452


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508