IN THE CASE OF:	  

		BOARD DATE:	  
		DOCKET NUMBER:  AR20080006709 


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, adjustment to his promotion effective date and date of rank for major from 9 November 2005 to 1 October 2004, with entitlement to back pay and allowances. 

2.  The applicant also requests award of the Purple Heart.

3.  The applicant states, in effect, that he should have been promoted to major effective 1 October 2004.  He also states that in March 2004, he was mobilized in support of Operation Iraqi Freedom and deployed to Iraq.  On 1 July 2004, major board was posted and he was selected for promotion to major.  He made several attempts to get a 56-R (Promotion Qualification Statement for USARC Mobilized TPU (Troop Program Unit) Officers) completed by his unit.  According to Army Regulation 135-155, an officer selected by a mandatory promotion board will be promoted and transferred to the Individual Ready Reserve (IRR) unless they meet 1 of 5 categories.  He did not fall into any of the categories.  Further, he never requested nor declined promotion.

4.  The applicant further states that he worked with his unit and chain of command to remedy the injustice to have his date of rank changed to 1 October 2004.  To date he has not received a change of date of rank or an explanation.  In December 2003, the Acting Secretary of the Army announced a change to promotion policy for deployed officers.  Further, he was promoted shortly after the policy was enacted and as such units which rarely deploy Soldiers such as the 108th Training Division were not familiar with the program nor the process.  He believes he should be awarded the Purple Heart for injuries incurred on 13 February 2005 in accordance with Army Regulation 600-8-22, paragraph 2-8, subparagraph (j).

5.  The applicant also states that on 13 February 2005, he was in a convoy to deliver equipment.  While participating in this convey, he volunteered to drive a non-armored pick-up truck, versus allowing one of his junior Soldiers to be put at risk.  While transporting the vehicle, the convoy was struck by an improvised explosive device (IED) explosion near his truck.  As a result of the explosion, he experienced ringing in his right ear.  He was examined and advised that if the ringing did not stop to proceed to the Troop Medical Center.  On 3 March 2005, the ringing had not stopped and he visited the Troop Medical Center where it was discovered his hearing had changed dramatically since his last audiogram in April 2004.  He was referred to an Ear, Nose, and Throat (ENT) Specialist upon demobilization.

6.  The applicant further states that upon arriving at Fort Bliss, Texas, he was placed in medical hold pending completion of medical care and evaluation.  He was diagnosed with Meniere's Syndrome caused by acoustic trauma from an IED explosion.  A subsequent Line of Duty Investigation was completed and it was determined that his injuries were in the line of duty as a result of an IED explosion.  He was evaluated by the Department of Veterans Affairs (DVA) and awarded a service-connected disability as a result of injuries incurred.  He also states that his unit failed to submit the appropriate request for orders for the Purple Heart which he earned as he had redeployed to the US prior to the Line of Duty reports being completed and submitted.  

7.  In support of his application, the applicant provides copies of his 2004 TPU assignment orders, his 2004 Officer Evaluation Report (OER), his 2005 Service School Academic Report, his 2004 DD Form 214 (Certificate of Release or Discharge from Active Duty), his Joint Service Achievement Medal award orders and certificates, his Recommendation for award of the Purple Heart, a 2004 convoy Task Incident Report, his DA Form 2173s (Statement of Medical Examination and Medical Record Data), his DVA Rating Decision, his Combat Action Badge award orders, a Memorandum For Record (MFR), and electronic mail correspondence between himself and the USARC Augmentation Unit. 

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 that he was appointed in the United States Army Reserve (USAR), as a second lieutenant, effective 10 December 1990.  He was promoted to captain effective 30 July 1999.

3.  On 17 December 2003, the Assistant Secretary (M&RA) established promotion policy for mobilized Reserve Component Officers for promotion to the grade of captain through colonel.  The policy applied to all Reserve Component commissioned officers (IRR and Selected Reserve) on the Reserve Active Status List.  The policy provided an exception to Army Regulation 135-155, paragraph 
4-9a, which required TPU officers selected by a mandatory promotion board be assigned or attached to a Reserve position requiring the higher grade.  A mobilized officer covered by this policy who had been recommended for promotion could be promoted immediately when matched against a vacant position of the higher grade.  An officer promoted under this policy should be assigned to that position against which the officer was matched or appointed within 180 days after demobilization.  If an officer, upon demobilization, declined or was unwilling or unable to occupy the position against which the officer was matched or appointed, then the officer, whether a member of the USAR or Army National Guard, shall be transferred immediately to the IRR if the officer was not assigned to some higher graded Reserve Component position within 180 days after demobilization.  The policy did not allow for retroactive promotion of mobilized unit officers prior to 17 December 2003.

4.  The applicant was ordered to active duty in support of Operation Iraqi Freedom and entered active duty on 21 April 2004.  

5.  The applicant was considered and selected for promotion to major by the 2004 Reserve Components Selection Board (RCSB) that convened on 2 March and recessed on 19 March 2004.  The board results were approved on 2 June 2004 and released on 1 July 2004.

6.  The applicant provides a copy of an unrelated Armor Group Iraq Incident Report, dated 14 July 2004, which contains the details of an ambush of the Armor Group convoy team on the evening of 12 July 2004.  The report states that the applicant, traveling with the convoy, participated actively throughout by taking an AK-47 from one of the injured persons and returned fire with the rest of the team. The report commented that the applicant showed remarkable calmness and courage during the time they were receiving fire and afterwards during the exfiltration to Ramadi.  The applicant is not listed as one of the injured in this report.

7.  The applicant further provides copies of electronic mail correspondence, dated 17 and 20 December 2004 between himself and the USARC Mobilization Augmentation Unit (MAU), regarding his promotion to major.

8.  The applicant also provides a copy of his DA Forms 2173, dated 13 February and 3 March 2005, that show he was seen and treated at the 31st Combat Support Hospital for tinnitus as a result of being involved in an IED explosion on 13 February 2005.  He was diagnosed with tinnitus due to an IED explosion and referred to audiology.  The injury was determined to be in the line of duty.  

9.  The applicant further provides a copy of his Medical Record – Supplemental Medical Data, dated 3 March 2005, that shows it was noted he had mild to moderate mixed hearing loss.  It was determined he should be seen by an ENT specialist following redeployment.

10.  The applicant also provides a copy of his DA Form 2173, dated 27 March 2005, that show he was seen at the Fort Bliss Troop Medical Clinic for Meniere's Syndrome.

11.  The applicant was released from active duty on 1 July 2005 and transferred to a Reserve TPU.

12.  The applicant was issued a DD Form 214 that shows in Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) the following awards:  the Joint Services Achievement Medal; the Army Achievement Medal; the National Defense Service Medal (2nd Award); the Global War on Terrorism Expeditionary Medal; the Armed Forces Reserve Medal, with Bronze Hour Glass Device; the Armed Forces Reserve Medal, with "M" Device; the Army Service Ribbon; the Army Reserve Components Overseas Training Ribbon; and the Parachutist Badge.  The Purple Heart is not included in his list of authorized awards.  There are no orders in the applicant’s service personnel records that show he was awarded the Purple Heart.  

13.  The applicant was issued USAR promotion orders, dated 10 November 2005, indicating his promotion to major with an effective date and date of rank of 9 November 2005, the date of his assignment to a TPU major's position.
14.  The applicant also provides a copy of his DVA Rating Decision, dated 1 February 2006, which granted him service-connection for hearing loss, right ear, rated as zero percent disabling; tinnitus, rated as 10 percent disabling; Meniere's Disease with intermittent vertigo, rated as 30 percent disabling; and irritable bowel syndrome and acid reflex syndrome, rated as 10 percent disabling. The DVA denied service connection for hearing loss, left ear; a left knee condition; and a post bilateral inguinal hernia scar.

15.  The applicant also provides a MFR, dated 7 March 2008, submitted in support of his request.  The memorandum states that in March 2004, the applicant was mobilized in support of Operation Iraqi Freedom.  His promotion board was scheduled to convene in March 2004.  On 1 April 2004, the applicant was involuntarily transferred to the MAU.  The MAU was responsible for all personnel actions for the applicant. The applicant was selected to major on 1 July 2004 and immediately contacted his unit through emails and phone calls requesting assistance with the USARC Form 56-R.  The promotion while deployed program was new and the 108th Division was not familiar with the program.  The 108th Division decided that since the applicant was not currently assigned to the 108th Division, they did not have the authority to complete the USARC Form 56-R.

16.  The MFR also states that the applicant had been in the 108th Division since 1992 and was an excellent officer.  The Battalion was over strength in majors, but the Division as a whole was short major positions, and would have definitely offered the applicant a position at one of the subordinate units.  The 108th Division thought the situation had been resolved as the deploying unit promoted the applicant to major.  Their unit had seen his DD Form 214, his OER, and an interim award, which all referred to him as a major.  Further, the applicant was actually serving in a lieutenant colonel position while deployed to Iraq working for a Multi-National Command.  The applicant would have definitely pinned on his major rank immediately after the results were posted had he not been deployed.  It is unfair to him that the TPU locations did not fully understand the new regulations which were signed in December 2003.

17.  The applicant further provides a Recommendation for Award of the Purple Heart memorandum, dated 24 April 2008, wherein, in effect, it was stated that on 13 February 2005, an IED exploded between the last two vehicles of a convey, unarmored truck occupied by the applicant and the last unarmored vehicle.  The convoy continued on through the ambush site.  The applicant complained of ringing in his ears at the time of the incident.  Two weeks later the applicant was still complaining about the ringing and referred to the Combat Support Hospital.  He was examined by an audiologist who subsequently determined that the 
applicant had moderate hearing loss in the right ear.  The applicant was referred to an ENT specialist upon demobilization.  The applicant's commander also stated a Line of Duty was completed for both the hearing loss and tinnitus where it was determined that the injury was in the line of duty.  He stated that the injury should qualify the applicant for award of the Purple Heart.

18.  On 23 July 2008, a staff member of the Casualty Operations Division, Human Resources Command, Alexandria, Virginia, verified that there was an IED explosion on 13 February 2005; however, the applicant's name was not listed on the casualty report.  

19.  In an advisory opinion, dated 3 June 2008, the Chief, Special Actions, DA Promotions Branch, Human Resources Command (HRC), St. Louis, Missouri, stated that while assigned to a TPU, the applicant was recommended for promotion by the 2004 RCSB with a promotion eligibility date of 29 July 2005.  Due to the fact he was not assigned to a valid higher graded position, promotion action was suspended on 9 July 2004.  That was evidenced by the enclosed memorandum and USARC Forms 56-R and 155-R.  The applicant transferred to the US Special Operations Command (USASOC) on 19 October 2005, and was subsequently promoted with a date of rank of 9 November 2005.  Since the applicant was not in a valid position prior to transfer he was not eligible for an earlier date of rank; therefore, it was recommended that the applicant's request be disapproved.

20.  In support of the advisory opinion, the Chief provided copies of the Notification of Suspended Promotion Status memorandum, dated 9 July 2004, which shows the applicant and his command were advised that his promotion could not be completed because he was not assigned to a valid position based on completed USARC 56-Rs and ARPC Form 155-Rs.

21.  The advisory opinion was forwarded to the applicant for acknowledgement and/or rebuttal on 16 June 2008.  In his rebuttal, dated 8 July 2008, the applicant states that he was involuntarily mobilized prior to his file going in front of the promotion board and had he not been deployed he would have been able to find and join a unit with a major's slot.  As a result of the mobilization he lost position with his peer group and as such he believes his date of rank should be changed to reflect his eligibility and selection date.

22.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  Paragraph 4-9a of this regulation specifies that a USAR TPU officer who is considered and selected by a mandatory promotion board will be promoted and transferred from the unit to the IRR.  The officer will 
be promoted within 60 days of receipt of promotion notification or the normal established promotion eligibility date, whichever is later.  Transfer to the IRR will not occur when the officer fills a vacancy in the unit in a higher grade, or requests delay of or declines promotion.  TPU officers selected by a promotion board will 
have a promotion date effective date no earlier than the approval date of the board, provided that they are assigned to a position in the next higher grade.  When the board approval date is prior to assignment to the position in a higher grade, the effective date of promotion will be the date of assignment to a higher-grade position.

23.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.

24.  Army Regulation 600-8-22 also provides, in pertinent part, that a "wound: is defined as an injury to any part of the board from an outside force or agent sustained under one or more of the foregoing conditions.  A physical lesion is not required; however, the wound for which the award is made must have required treatment by a medical officer and records of medical treatment for wounds or injuries received in action must have been made a matter of official record.  An injury caused by an enemy placed land mine justifies award of the Purple Heart. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant is entitled to award of the Purple Heart.  The evidence of record shows that he was injured in an IED explosion on 13 February 2005, in Iraq, received medical treatment, and the incident was made a matter of official medical record.  Therefore, he is entitled to award of the Purple Heart and its addition to his DD Form 214.

2.  The applicant is not entitled to correction to his promotion effective date and date of rank for major to 1 October 2004, with entitlement to back pay and allowances. He has not shown error, injustice, or inequity for the relief he now requests.

3.  The applicant's contentions have been noted; however, the evidence of record shows the applicant was mobilized on 21 March 2004 as a USAR TPU officer.  He was selected for promotion to major by the 2004 RCSB which was released on 1 July 2004.  His promotion to major was suspended on 9 July 2004 because he was not assigned to a valid position at that time.  He was released from active duty on 11 July 2005.  It appears he was assigned to a major's position effective 9 November 2005 and appropriately promoted to major on that date.  

4.  In accordance with policy guidance for mobilized TPU officers, effective 17 December 2003, and as an exception to Army Regulation 135-155, paragraph 4-9a, mobilized TPU officers who had been recommended for promotion could be promoted immediately when matched against a vacant position of the higher grade.  An officer promoted under this policy should be assigned to that position against which the officer was matched or appointed within 180 days after demobilization.  Therefore, as a mobilized TPU officer, the applicant was eligible for promotion to major the date he was assigned to a higher graded position or matched against a vacant position.  

5.  The documentation submitted by the applicant does not show he was assigned to a valid position on 1 October 2004 or prior to 9 November 2005.  There is also no evidence that he was matched against a vacant position of the higher grade prior to his demobilization and subsequent assignment to a major position on 9 November 2005.  He was properly promoted when he met all requirements for promotion and he has not shown otherwise.

6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ____x___  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by awarding him the Purple Heart for wounds received as a result of enemy action in Iraq on 13 February 2005 and by providing him a correction to his separation document that includes this award.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends 
denial of so much of the application that pertains to correction to his promotion effective and date of rank for major to 1 October 2004, with entitlement to back pay and allowances.   




      _______ _   _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)                                         AR20080006709



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ABCMR Record of Proceedings (cont)                                         AR20080006709


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