IN THE CASE OF:	

	BOARD DATE:	18 September 2008  

	DOCKET NUMBER:  AR20080006163 


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, in effect, correction to his promotion effective date and date of rank (DOR) for captain (CPT/O-3) from 14 February 2005 to 4 October 2001, the date the President approved the June 2001 United States Army Reserve (USAR) Position Vacancy Board (PVB) and removal of his name from the November 2004 Reserve Components Selection Board (RCSB).

2.  The applicant states, in effect, that his promotion effective date and DOR for captain should be adjusted based on the 2001 PVB and that his name should be removed from the November 2004 RCSB.  

3.  The applicant provides several documents from his OMPF (Official Military Personnel File) such as:  promotion memoranda, a copy of his sworn statement (DA Form 2823), and a copy of a memorandum from counsel in support of his request.  

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests, in effect, that the Board direct the amendment of the applicant’s military records to reflect the effective date and DOR for promotion to the rank of CPT to 4 October 2001, based on the results of the June 2001 PVB.  Alternatively, in the event the Board does not approve the 4 October 2001 date, Counsel requests that the Board direct an appropriate date in May 2003.
Counsel does not believe the applicant's file was brought before the November 2002 board at his first Army Promotion List (APL) opportunity.  As a second alternative counsel request that the Board direct a new DOR of 29 May 2004, the Promotion Eligibility Date (PED) listed on the applicant’s Notification of Promotion.  

2.  Counsel states, in effect, that the applicant believes the effective date of his promotion was delayed due to administrative errors at his RRC (Regional Readiness Command) and the AHRC (Army Human Resources Command).  Further, he requests that the applicant be entitled to all rights, privileges, entitlements, and property commensurate with the adjusted DOR, with entitlement to all back pay and allowances.  He also requests that the applicant's Officer Evaluation Reports (OERs) from the corrected date of the promotion be amended to reflect his correct rank.  

3.  Counsel states, in effect, that based on facts, laws, and regulation the applicant has proven by the preponderance of evidence, according to regulation, that a material error or injustice existed with respect to his promotion to captain following his selection, as well as his selection for promotion to captain by the June 2001 PVB.  Counsel states, specifically, that the USAR PVB Branch, in St Louis, Missouri, failed to update the applicant's records causing the board promotion announcement to reflect an incorrect paragraph and line number for him.  This error was compounded by the applicant not being considered by the November 2002 USAR CPT APL Board.  Counsel states that sufficient evidence exists for the ABCMR to direct the requested changes. 

4.  Counsel provides a detailed background of the applicant's case and the regulatory and legal background he believes supports his position.  Counsel concluded that both justice and equity require that the Board order the relief requested.

5.  Counsel provided no additional documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show that he was appointed in the USAR as a second lieutenant, effective 5 June 1997.  

2.  The applicant was promoted to first lieutenant (1LT/O-2) effective 30 May 1999. 

3.  The applicant provided a copy of a unit UMR (Unit Manning Report), dated 8 December 1999, which shows he was assigned to a captains position as a Counterintelligence Officer, effective 6 October 1997 (Unit Identification Code (UIC) WZP1W4, position 35E00, paragraph 260, line 03).

4.  On 5 January 2001, the commander submitted a DA Form 2464 (USAR Unit Vacancy Promotion Recommendation) pertaining to the applicant.  The commander indicated that the applicant was an outstanding officer who was operating at the captain’s level.

5.  On 18 January 2001, the 81st RSC (Regional Support Command) informed the applicant to submit a PVB packet to the Army Reserve Personnel Command (AR-PERSCOM-now known as AHRC) for approval.  In turn, AHRC would fax the approval back to him and then forward the packet to the 81st RSC which was due by 26 January 2001.

6.  The applicant’s records appeared before the 2001 PVB while assigned to paragraph and line number "260/03."  He was considered and selected for promotion to captain.  The President approved the board results effective 4 October 2001.  The results were scheduled for release on 20 November 2001.  

7.  A sworn statement, dated 6 June 2003, indicates the applicant submitted a promotion packet for the June 2001 PVB for the Counterintelligence Officer Area of Concentration 35E, paragraph and line number 220/03, line number 125, of the unit's MTOE (Modified Table of Organization & Equipment), for UIC WZP1W4.  Although, he was only a first lieutenant (O-2), he was assigned to the position since being commissioned on 6 June 1997 and he performed the duties of a captain (O-3).  He was assigned to Detachment 1, Company A, 345th MI (Military Intelligence) Bn (Battalion).  The unit performed a geographic search and found no other qualified officers for the position and he was found fully qualified.  All information was submitted to the board; however, he received no word about it.  He contacted the personnel officer, of the 81st RSC, who informed him that the PVB selection list had not been received yet, and that he would be notified as soon as the list was available.  In January 2002, the personnel officer emailed him a copy of the June 2001 PVB selection list.  Unfortunately, the copy was missing the first page, which was the page of officers recommended for promotion to captain.  He immediately contacted the 81st RSC for a copy of the first page.   He never received it.  

8.  In February 2002, the applicant contacted personnel who faxed the entire board results to him and in fact, it did contain his name for promotion to captain.  His unit submitted the necessary paperwork to secure his promotion from AHRC. Shortly after that, the personnel officer informed the applicant that there was a problem with the paperwork and that the paragraph and line number on the selection list did not match the paragraph and line number on the DA Form 
4935-R (Request for Unit Vacancy Fill).  This form is not for review.  Between February and August 2002, he made multiple calls and sent several emails to the personnel officer seeking advice on what steps could be taken to correct the error.  He received no reply.  In August 2002, his supervisor began calling the personnel officer at the 81st RSC and the AHRC on his behalf to determine the status of his promotion.  Personnel informed the applicant's supervisor that the paragraph and line numbers could not be fixed, absolutely nothing could be done, and that since the numbers did not correspond to an actual position, he could not be promoted.  A copy of the unit's UMR was attached to his sworn statement, dated 12 December 2003, which failed to list his name.

9.  The applicant was selected for promotion to captain by the 2004 RCSB which convened on 2 November 2004 and recessed on 9 November 2004.  The President approved the board results on 14 February 2005 and the applicant was promoted on the same date.

10.  In an advisory opinion, dated 12 May 2008, the Chief, Specials Actions Branch, DA (Department of the Army) Promotions, AHRC, St. Louis, stated that the applicant was selected for promotion by the June 2001 PVB and the board was approved on 4 October 2001.  In March 2002, promotion action was suspended by the 81st RSC due to the fact the applicant was not assigned to the specific position shown on the PVB.  In July 2003, a memorandum was sent to the 81st RSC and to ARHC to initiate action to have the applicant’s name removed from the promotion list.  This action was in accordance with Army Regulation 135-155, paragraph 3-18(5)a, which states if an officer selected for a position vacancy promotion was transferred from the assigned or attached position before the promotion was accomplished the officer would be ineligible for the promotion.  The authority for removal of a name from a promotion list rests with the President or his designees, and on 21 June 2004, the President approved the removal of the applicant’s name.  

11.  The advisory opinion also states that paragraph 2-5c, of the above Army Regulation states, that while on a promotion list resulting from a prior mandatory or PVB, an officer could be considered for promotion by a subsequent mandatory board or PVB.  Due to the applicant’s removal from the June 2001 PVB, the applicant was not eligible for consideration by the 2002 or 2003 selection boards. If the applicant was considered and selected for promotion by the boards his earliest date of rank (DOR) and effective date of promotion would have been the approval date of the board that selected him for promotion, or the date of assignment to the higher graded position, whichever was later.

12.  On 18 June 2008, the applicant’s counsel, submitted a rebuttal in his behalf. 
Counsel concluded that for over 3 1/2 years the applicant was denied a well deserved promotion to captain for which he was selected by the June 2001 PVB solely because of one digit being off on a paragraph and line number.  The applicant, a 1LT, was denied promotion due to a preventable administrative error or oversight by an employee at the AHRC Promotion Boards Support Branch, who failed to enter the correct information submitted 1 week before the suspense date and over 5 months before the board convened.  As the board’s selection was made clear, the applicant served in the position for which he was selected for over 
6 years and was qualified in all aspects.  Counsel states the applicant was denied promotion, pay and allowances, for which he was selected and rightfully entitled since 4 October 2001. 

13.  Counsel states that this request was not just to redress the injustice of the last several years, but to also prevent this error from negatively affecting the rest of the applicant’s bright military career, including future promotion boards and command and school selection.  Both justice and equity require that the Board order the relief requested by the applicant. 

14.  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 time in grade.  Promotion to fill authorized troop program unit (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 time in grade 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. 

15.  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, AOC, 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.
16.  This regulation further specifies that officers selected for promotion by a PVB will have a promotion effective date and date of rank no earlier than the approval date of the board, or the date the officer is assigned to the position.

16.  Army Regulation 135-155 further specifies that if an officer selected for a position vacancy promotion is determined to be ineligible for promotion, the Office of Promotions, Reserve Components, will, after verification, explain the officer's ineligibility and request removal or administrative deletion of the officer's name.  An officer is not eligible for consideration if he or she was not approved for the position per Army Regulation 140-10.

17.  Army Regulation also specifies that 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.  The evidence shows he was assigned as a Counterintelligence Officer, to paragraph and line number 260/03, requiring an officer in the grade of captain.  He was assigned to the position effective 6 October 1997.  

2.  The evidence shows that the applicant was selected for promotion to captain while assigned to paragraph and line number "260/03" by the June 2001 PVB and the board was approved on 4 October 2001.  He submitted a promotion packet for paragraph and line number 220/03, line number 125 that shows he was performing the duties of captain.  He was later informed that there was a problem with the paperwork and that the paragraph and line number on the selection list did not match the paragraph and line number on the DA Form 
4935-R, which was unavailable for review.  The applicant made several attempts to correct the error.  He was informed that since the numbers did not correspond to an actual position, he could not be promoted. 

3.  The applicant was selected for promotion to captain by the 2004 RCSB which convened on 2 November 2004 and recessed on 9 November 2004.  The results were approved on 14 February 2005 and the applicant was promoted on the same date.   

4.  AHRC-St. Louis verified that promotion action was suspended by the 81st RSC due to the fact that the applicant was not assigned to the specific position shown on the PVB.  His name was removed from the promotion list in accordance with regulatory authority.

5.  The Board is aware that administrative errors occur for a variety of reasons; however, the applicant could not be promoted to captain with a date of rank of 4 October 2001, based on his selection by the 2001 PVB.  He could not be promoted without the benefit of an authorized position vacancy.  

6.  It is also noted that regulatory guidance or law does not provide for promotion consideration by a special selection board or adjustments to promotions and dates of rank based on the applicant's circumstances.  Since there is no authorization for promotion to the next higher grade based on filling a position vacancy, when none existed, the applicant is not entitled to an adjustment to his date of rank for captain, as if he was promoted by the June 2001 PVB.  He was appropriately promoted to captain based on his selection by the 2004 RCSB board.   

7.  In view of the circumstances in this case, the applicant is not entitled to adjustment of his date of rank for captain from 14 February 2005 to 4 October 2001, May 2003 or 29 May 2004 as requested by counsel.  The applicant is also not entitled to any back pay or allowances or correction of any OERS.  He has not shown error, injustice, or inequity for the relief he now requests.

8.  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

________  ________  ________  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.



      _______ _   _______   ___
               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)                                         AR20080006163



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ABCMR Record of Proceedings (cont)                                         AR20080006163



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