IN THE CASE OF:	  

		BOARD DATE:	       18 DECEMBER 2008

		DOCKET NUMBER:  AR20080009747 


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 of his date of promotion to the rank of lieutenant colonel (LTC)/O-5 to 4 October 2005.

2.  The applicant states that the selection board convened on 13 September 2005 and that his promotion eligibility date is 4 October 2005.  He states that the effective date of promotion reflected in his records is 7 June 2006.  He states that he was mobilized in an active status, filling an LTC slot.  He states that the members of his unit who were selected for promotion from the same list he was on were given a 4 October 2005 date of rank.  He states that they were in a Troop Program Unit (TPU) status and were not filling LTC slots and that they met the requirements for promotion.  He states that he was told that because he was "carry in a 999 status as unassigned on the UMR" it caused him to not be eligible for promotion as he was under a different "UIC."  He states that the policy has changed and if you are in a mobilized status and in a "999" status, it does not affect your assignment status.

3.  The applicant provides in support of his application, a copy of his "Soldier Data" from the United States Army Human Resources Command (USA HRC) website; a copy of an undated, unaddressed document from AHRC-MSL-P regarding "Consideration for Lieutenant Colonel Army Promotion List 2005 Selection Board"; a copy of a memorandum from USA HRC, dated 12 January 
2006, notifying him of the status of his promotion; a copy of Orders
05-305-00003, dated 1 November 2005; a "Promotion Qualification Statement of USARC Mobilized TPU Officers"; and a copy of Orders B-06-604626, dated 29 June 2006. 
CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was appointed in the United States Army Reserve (USAR) as a second lieutenant (2LT)/O-1, effective 17 December 1982.  He was appointed in the Regular Army (RA) as a 2LT on 13 May 1984.  He was promoted to first lieutenant (1LT)/O-2 effective 13 November 1985 and he was promoted to captain (CPT)/O-3 on 1 February 1988.  

2.  The applicant was discharged from active duty on 1 April 1996 due to non-selection for permanent promotion.

3.  On 10 May 1997, the applicant accepted an appointment in the USAR as a CPT, with an effective date of 2 April 1996.  He was promoted to the rank of major (MAJ)/O-4 on 5 October 1998.

4.  The applicant's records contain an undated self-authored memorandum addressed to the "President 2005 LTC APL Selection," requesting a waiver of educational requirements.  His records do not contain a response to his request for a waiver.

5.  However, on 12 January 2006, the applicant was notified by USA HRC that a Department of the Army Reserve Component Selection Board (DA RCSB) that convened on 13 September 2005 had selected him for promotion to LTC with an effective date of 4 October 2005.  He was told that to be promoted, he must remain in an active status and meet the promotion eligibility criteria set forth in Army Regulation 135-155.  He was also told that he had received an exception to the military education requirement for promotion consideration purposes; that the military education requirements must be completed no later than 30 July 2007; and that he must provide a copy of the diploma or DA Form 1059 to his promotion authority.  The applicant was told that his promotion could not be finalized until the military education requirement was met and that failure to comply with the instructions may result in his removal from the selected list.  He was told that any further questions should be directed to his area command or personnel management officer.

6.  On 29 June 2006, USA HRC Orders B-06-604626 were published promoting the applicant to the rank and grade of LTC/O-5 with an effective date and date of rank of 7 June 2006.  On 30 June 2006, Orders B-06-604626 were amended by USA HRC Orders B-06-604626A01 to show his effective date of promotion and date of rank as 30 May 2006.

7.  On 5 November 2008, the applicant was ordered to active duty in support of Operation Enduring Freedom.
8.  During the processing of this case, an advisory opinion was obtained from the USA HRC, Chief, Special Actions Branch, who states that the applicant was considered and non-selected for promotion by the 2004 LTC DA RCSB.  He states that the applicant was recommended by the 2005 Board and that the board was approved on 30 December 2005.  He states that the applicant was subsequently promoted with a date of rank of 7 June 2006 by orders dated 29 June 2006 and that in accordance with Army Regulation 135-155, paragraph 4-21, a unit officer will have a promotion and effective date of no earlier than the approval date of the board provided he is assigned to a position in a higher grade and all promotion requirements are met.  

9.  In the advisory opinion, the Chief, Special Actions Branch states that Army Regulation 135-155 provides that if an officer's maximum time in grade date is before the approval date of the board, his promotion and effective date will be no earlier than the approval date of the board.  He states that the applicant's promotion eligibility date, based on maximum time in grade was 4 October 2005 and his date of assignment to the higher graded position was 23 June 2005.  The Chief, Special Actions Branch states that the applicant did not meet the education requirement at the time and that the board's approval date was after his promotion eligibility date.  The Chief, Special Actions Branch recommended that the applicant be granted a date of rank and effective date of promotion of 30 December 2005. 

10.  A copy of the advisory opinion was forwarded to the applicant on 15 September 2008 for his information and/or possible rebuttal.  In an undated response, the applicant states that he was not considered by the 2004 DA RCSB.  He states that he was told that he did not meet the education requirements; therefore, his records would not go before the 2004 Board.  He states that he requested an education waiver, although his records showed that he met the 50 percent completion of the Command and General Staff College (CGSC) course requirement.  The applicant provides a brief detail of the circumstances surrounding his inability to timely participate in the CGSC and he 
concludes by stating that the bottom line is that he was selected by the 2005 LTC DA RCSB and that he requests the earliest effective date of rank as authorized so he may remain competitive for the next selection board with his peers.  He states that he accepts the Chief, Special Actions Branch's recommendation for a date of rank adjustment of 30 December 2005, if it is the earliest date authorized.

11.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers, Other Than General Officers) prescribes the policies and procedures for the promotion of Reserve officers.  This regulation specifies that in order to be promoted to LTC an individual must have completed 7 years of time in grade as a MAJ and 50 percent of the CGSC on or before the convening date of the respective promotion board.

12.  Army Regulation 135-155, paragraph 4-21 (Effective dates), provides, in pertinent part, the effective date of promotion may not precede the date of the promotion memorandum.  An officer is promoted after selection if all qualifications for promotion are met.  When an officer does not meet the qualifications for promotion, the effective date of promotion will not be earlier than the later date all qualifications are met.  In no case will the date of rank or effective date of promotion be earlier than the date the board is approved, or, if required, the date of Senate confirmation.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to adjustment to his date of rank for LTC to 4 October 2005.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The applicant accepted an appointment in the USAR as a CPT with an effective date of 2 April 1996.  He was promoted to the rank of MAJ on 5 October 1998.

3.  The memorandum that he submitted in support of his application, dated 12 January 2006, shows that he received an exception to the military education requirement for promotion consideration purposes.  However, the memorandum also shows that he was selected for promotion to LTC by a DA RCSB that convened on 13 September 2005.  The advisory opinion obtained from the Chief, Special Actions Branch shows that the board was approved on 30 December 2005 and as such, this is the earliest possible date that his promotion to LTC can be adjusted.

4.  In accordance with the applicable regulation, in no case will the date of rank or effective date of promotion be earlier than the date the board is approved, or, if required, the date of Senate confirmation.

5.  In view of the foregoing, it would now be appropriate to correct the applicant's records 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 showing he was promoted to LTC/O-5 with a promotion effective date and date of rank of 30 December 2005.

2.  In addition, the Defense Finance and Accounting Service shall be notified of the Board's determination and remit payment of all back pay that may be due as a result of this correction.

3.  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 correcting his effective date and date of rank to 4 October 2005.



      ________XXX______________
       	   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)                                         AR20080009747



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ABCMR Record of Proceedings (cont)                                         AR20080009747



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