IN THE CASE OF:	  

	BOARD DATE:	  25 September 2008

	DOCKET NUMBER:  AR20080003989 


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 military records to show his date of rank for captain, pay grade O-3, as 23 January 2007.

2.  The applicant states, in effect, that during his deployment to Iraq he was recommended for promotion to captain through a position vacancy board on 
28 March 2006, but before he could be transferred into the recommended position and promoted, the position was converted to an Active Guard Reserve (AGR) position.  The commander reassigned the applicant on 23 January 2007 to another captain position within the unit.  The commander submitted the paperwork for his promotion to captain in the comparable position.  When the Human Resources Command (HRC) promoted him to captain on 18 June 2007, it was discovered that he had been removed from the promotion recommended list.  HRC stated that it no longer had the authority to promote him because his name was not on the recommended list.   The promotion was revoked.  The applicant was subsequently selected for promotion by the Reserve Components Captain Selection Board and promoted with an effective date and date of rank of 8 February 2008.   

3.  The applicant provides copies of transfer orders and promotion orders.

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was an active duty Reserve Component officer serving in the rank of captain, pay grade O-3, in a Troop Program Unit (TPU).

2.  On 13 August 1993, the applicant was appointed as a second lieutenant, Infantry, in the Maryland Army National Guard.  He was discharged on 9 August 1997.

3.  On 16 January 2003, the applicant was appointed as a second lieutenant in the United States Army Reserve.  On 9 December 2003, he was promoted to first lieutenant.  

4.  Orders 07-051-00002, 80th Division Institutional Training, Richmond, Virginia, dated 20 February 2007, reassigned the applicant to the 77th Headquarters Command, Fort Dix, New Jersey. 

5.  Orders B-06-704386, Human Resources Command, St. Louis, Missouri, dated 18 June 2007, promoted the applicant to the rank of captain with an effective date and date of rank of 25 May 2006.  These orders were subsequently revoked the same day.

6.  Orders B-02-801451, Human Resources Command, St. Louis, Missouri, dated 26 February 2008, promoted the applicant to the rank of captain with an effective date and date of rank of 8 February 2008. 

7.  In processing this case, an advisory opinion was obtained from the Chief, Special Actions Branch, Department of the Army (DA) Promotions, Human Resources Command, St. Louis, Missouri.  It stated that while drilling as a Reserve officer in a troop program unit (TPU), the applicant was selected for promotion to captain by a 2006 position vacancy board based on the fact that he was assigned to a higher graded position.  Prior to approval of the promotion, the position was changed to require an AGR officer.  Therefore, the position upon which the applicant’s promotion was based was no longer available; hence, he could not be promoted.  The applicant was subsequently selected for promotion to captain by the 2007 DA Reserve Components Selection Board (RCSB) and subsequently promoted with a date of rank of 8 February 2008, the approval date of the board.  It recommended that if the applicant provides a Promotion Qualification Statement (ARPC 56R) verifying his assignment to a higher graded position on 23 January 2007, that his date of rank be changed to 23 January 2007.




8.  The advisory opinion was forwarded to the applicant for information and comments, if any.  On 7 July 2008, the applicant responded to the advisory opinion and provided a Promotion Qualification Statement (ARPC 56R) showing that he was assigned in a major, pay grade O-4 position, effective 23 January 2007.

9.  Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve and ARNG officers.  This regulation specifies that completion of 5 years mandatory time in grade (MTIG) as a first lieutenant is required before promotion to captain.  Troop program unit officers selected for promotion by a mandatory board must be assigned to a unit and serving in a position requiring the higher grade or assigned to the IRR or as an Individual Mobilization  Augmentee (IMA) officer.  This regulation further provides that the date of rank and effective date of promotion cannot be earlier than the approval date of the board that selected the officer.  

10.  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.  Unit officers selected by a mandatory board cannot have a date of rank or effective date earlier than the board approval date, even if they have been assigned to a position in the higher grade.

11.  Army Regulation 135-155 further provides that officers with maximum time in grade prior to being recommended for and selected for promotion to the higher grade may have a date of rank earlier than the approval date of the board that selected him.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant became ineligible for a position vacancy promotion because his position had been redesignated as AGR.  The applicant was subsequently reassigned to another position on 
23 January 2007.  However, the applicant had already been removed from the promotion recommended list.  Before the commander completed his second recommendation for a vacancy promotion, the applicant had been considered by and selected for promotion to captain by the Fiscal Year 2007 RCSB that was approved on 8 February 2008.  The applicant was no longer eligible for a vacancy promotion.

2.  The applicant’s maximum time in grade (5 years) as a first lieutenant would have been on 9 December 2008.  He was promoted to captain with an effective date and date of rank of 8 February 2008.  In view of the circumstances in this case, the applicant is not entitled to adjustment of his date of rank for captain to 23 January 2007.  There is no evidence of error, injustice, or inequity that would substantiate the relief that he requests.

3.  Notwithstanding the advisory opinion received in this case, the applicant’s date of rank and promotion to captain could not be any earlier than the approval date of the board because he had not reached his maximum time in grade prior to consideration and selection for promotion to captain.  In accordance with regulatory guidance, the applicant received the earliest date to which he was entitled and there is no indication that his promotion effective date or date of rank for captain was administratively delayed, unjust, or inequitable.

4.  In view of the above, the applicant’s request should be denied.


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	
      
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)                                         AR20070015723



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ABCMR Record of Proceedings (cont)                                         AR20080003989



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