IN THE CASE OF:	

		BOARD DATE:	  18 December 2008

		DOCKET NUMBER:  AR20080008945 


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 that his date of rank to captain (CPT)/O-3 of 20 January 2006 be adjusted to that of his commissioning peer group.

2.  The applicant states that he began the process of joining the U.S. Army Reserve (USAR) in 2002 and he received a direct commission as a first lieutenant (1LT) in the Judge Advocate General (JAG) Corps on 13 March 2003 with a date of rank of 13 March 2002.  He states that when he received his commission in the Reserve, JAG officers received their promotions from 1LT to CPT through a Promotion Vacancy Board (PVB).  Active duty JAG officers were promoted to CPT within a few months of their commission.  Every JAG officer was slotted in a CPT/O-3 position, so once his or her packet was submitted his or her promotion was close to being automatic.

3.  He states that he had met the educational requirement for promotion in December 2003.  He has prior enlisted service and he is a graduate of the Airborne and Ranger schools and has served with active and Reserve special operations units.  He was serving in a CPT's slot and, although there is no way to know whether he would have been promoted, by the preponderance of the evidence he would have been promoted.

4.  He states that while he was preparing his PVB packet in late December 2003, he felt compelled to volunteer for service in Iraq.  He volunteered to serve with the U.S. Army Special Forces Command with the Special Forces Group (Airborne) in Iraq.  When he volunteered to go to Iraq he was told by his unit that he could no longer go before a PVB because if he did, the Board's results would not be back in time for him to get promoted before he deployed and he could not get a PVB promotion while on active duty.  Therefore, they would not submit his PVB packet because it was a waste of time.

5.  He states that his peers who did not deploy were promoted to CPT while he served in Najaf in the summer of 2004.  The choice was deploy or stay home, and he chose to deploy.  Upon returning from Iraq he went before a mandatory promotion board and it took 1 year for the Board to convene and release the results for his promotion, which was 2 years after his peers were promoted.  His peers were promoted by the PVB and the Army has since fixed the flaw and now all Reserve direct-commission JAG officers are promoted to CPT as soon as they have sufficient time in grade (TIG) and are educationally qualified, which is normally 1 year after commissioning, which for him would have been 13 March 2004.

6.  He concludes that his current peer group for his rank is people who were commissioned 2 years after he was commissioned.  They had 2 years less time in service and had only a year in the Army and no experience when they were promoted to CPT.  He fell through the crack and nothing has been done to fix the injustice.  By changing his date of rank, he would be able to compete for promotion with his year group and his career would be back on track where it should have been all along.

7.  The applicant provides a copy of a statement, biographical summary, appointment memorandum, promotion orders, mobilization orders, and officer evaluation reports.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was appointed in the USAR JAG Corps as a 1LT effective 13 March 2003 with a date of rank of 13 March 2002.

2.  The applicant was issued orders, dated 26 April 2004, for deployment for 179 days in support of Operation Iraqi Freedom effective 2 May 2004 with a projected end date of 27 October 2004.

3.  He was released from active duty and transferred to the 174th Judge Advocate Detachment, Legal Service Team, Armed Forces, Orlando, Florida, effective 26 October 2004.

4.  In a memorandum from the Office of the Assistant Secretary, Manpower and Reserve Affairs, dated 17 December 2003, it is stated that all Reserve Component officers in the Individual Ready Reserve and Selected Reserve who are mobilized and on a Reserve Active Status List and on an approved mandatory selection board promotion list may be eligible for promotion under the provisions of Title 10, U.S. Code, sections 12301(a), 12302, 12304, and 14308(a).  The memorandum is not applicable to non-mobilized or mobilized Reserve Component officers selected for promotion by PVBs convened under the provisions of Title 10, U.S. Code, sections 14101(a)(2) and 14315.

5.  In the processing of this case, an advisory opinion was obtained from the Human Resources Command (HRC), St. Louis, Missouri.  The HRC stated that the applicant was appointed as a 1LT in the USAR on 13 March 2003.  The applicant did not meet the criteria for promotion to CPT in accordance with Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), which states that the applicant must be on the Reserve Active Status List for 1 year and have served for 2 years in the lower grade to be eligible for promotion consideration to CPT.  The applicant did not meet the requirements by December 2003.  The applicant's date of rank was adjusted from 13 March 2003 to 13 March 2002, due to 1 year overage of constructive service credit.  Therefore, his mandatory promotion eligibility date was 13 March 2007.

6.  The HRC further states that based on the applicant's date of rank of 13 March 2002, the applicant was selected on 7 November 2005 and promoted to CPT by the Fiscal Year 2005 Department of the Army Reserve Components Selection Board on 20 January 2006.  Therefore, the applicant is not eligible for an earlier date of rank.  The HRC recommended disapproval of the applicant's request.  The advisory opinion, dated 28 August 2008, was forwarded to the applicant for a rebuttal.

7.  On 8 October 2008, the applicant responded via electronic mail addressed to the Army Board for Correction of Military Records staff that he does not disagree with the advisory opinion except for the recommendation.  He states that the advisory opinion fails to address his argument, in effect, eligibility for a vacancy promotion.  He repeated his contention that other officers were given vacancy promotions ahead of him while he was deployed even though he was the most qualified.  The applicant repeated his contention that he was unfairly denied unit vacancy promotion consideration due to his deployment to Iraq.

8.  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 1LT may be eligible for promotion consideration to captain by a PVB upon completion of 2 years minimum TIG.  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 CPT 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 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.

9.  Army Regulation 135-155 also specifies that a 1LT will receive mandatory promotion consideration for promotion to CPT upon completion of 5 years in the lower grade.

10.  Army Regulation 135-155, paragraph 4-21a, states, "The effective date and date of promotion, to include officers recommended on a second or subsequent mandatory board, will be no earlier than the approval date of the board, the date of Senate confirmation (if required), or the date the officer meets maximum TIG, whichever is later."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his date of rank of 20 January 2006 to CPT should be adjusted to that of his commissioning peer group.

2.  The evidence shows that the applicant was deployed to Iraq and was not available to serve in a TPU if selected by a PVB.

3.  The applicant has not shown denial of PVB promotion because of his deployment.  However, even if he did it would not constitute an error or injustice.  To promote an officer against a unit vacancy while that officer is deployed would deprive the commander of a member of his or her professional staff until the officer comes off active duty.  Furthermore, the applicant was aware that his choice to deploy would result, ultimately, in a delay in his promotion to CPT.  He made an informed choice and must live with the consequences.

4.  As such, the applicant was properly considered and selected for promotion to CPT by a mandatory promotion board.

5.  It is noted that the applicant served his country during a very critical time of need; however, given the circumstances he was not eligible for a vacancy promotion to CPT.

6.  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
      
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)                                         AR20080008945



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ABCMR Record of Proceedings (cont)                                         AR20080008945



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