IN THE CASE OF:	  

		BOARD DATE:	       10 March 2009

		DOCKET NUMBER:  AR20080012854 


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 date of rank (DOR) to first lieutenant (1LT) from 27 November 2007 to 19 August 2007.

2.  The applicant states that through no fault of his, he was passed over for promotion by two administrative boards and was given a DOR of 27 November 2007 when it should have been 19 August 2007.  He adds that this gap amounts to about 100 days worth of pay and allowances and pushes his promotion eligibility date (PED) to captain (CPT) back.

3.  The applicant provides a copy of his promotion Orders B-01-800296, issued by the U.S. Army Human Resources Command (HRC), St. Louis, MO, on          10 January 2008; and a copy of a letter, dated 15 July 2008, from the Chief, Department of the Army (DA) Promotions, HRC-St. Louis, MO, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he enlisted as a cadet in the U.S. Army Reserve (USAR) under the Reserve Officers’ Training Corps (ROTC) program on 8 November 2002.  He subsequently attended Radford University, Radford, VA, and was awarded a Bachelor of Science degree on 30 July 2005.



2.  The applicant’s records also show he was appointed as a second lieutenant (2LT) in the Chemical Corps of the USAR and executed an oath of office on 19 August 2005.  He was assigned subsequently to the 485th Chemical Battalion, Wilmington, DE.

3.  The applicant's records further show he entered active duty on 13 November 2005, completed the Chemical Officer Basic Course at Fort Leonard Wood, MO and he was honorably released to the control of his USAR unit on 18 April 2006.  

4.  On 10 May 2007, the applicant was ordered to active duty as a member of his Reserve unit for a period of 400 days in support of Operation Iraqi Freedom and subsequently served in Kuwait/Iraq from 30 June 2007 to 5 May 2008.  He was again honorably released from active duty to the control of his USAR unit on 30 May 2008.  

5.  On 10 January 2008, HRC-St. Louis, MO, published Orders B-01-800296 announcing the applicant’s promotion to 1LT with an effective date and a DOR of 17 November 2007.

6.  On 15 July 2008, by letter addressed to the applicant’s Member of Congress, the Chief, DA Promotions, HRC-St. Louis, MO, stated that the applicant was considered and selected by the 2007 1LT administrative board and was promoted to 1LT on 17 November 2007, the approval date of the board.  The Chief added that the applicant cannot have a date earlier than the approval date of the board from which he was selected.  However, it appears that the applicant should have been considered by an earlier 1LT administrative board and that the promotions/notifications branch informed his office that they can no longer promote someone whose name is not on the approved scroll by the Secretary of Defense.  

7.  An advisory opinion was obtained on 17 January 2009 in the processing of this case.  The Chief, Special Actions Branch, DA Promotions, HRC-St. Louis, MO recommended disapproval of the applicant’s request and stated that the applicant was selected for promotion by the administrative board that was approved on 27 November 2007 and promoted with that date as his DOR.  He was in the zone for consideration by the June 2007 administrative board; however, he was not considered by that board.  If he had been considered and selected for promotion, he would have been promoted with a DOR of 18 August 2007.  The applicant was informed that the Special Actions Branch can no longer promote an officer whose name was not on a scroll that was approved by the Secretary of Defense.  Since the applicant was not on a scroll that was approved prior to 27 November 2007, he is not eligible for an earlier DOR.
8.  On 17 February 2009, the applicant was provided a copy of the above advisory opinion and given an opportunity to reply to its content.  

9.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers, Other Than General Officers), Chapter 2 (Promotion Eligibility and Qualification Requirements), Table 2-1 (Time in Grade Requirements Commissioned Officers, Other Than Commissioned Warrant Officers) provides, in pertinent part, that the minimum time in grade as a first lieutenant for promotion to captain is 2 years and the maximum time in grade is 5 years.  Table 2-2 (Military Educational Requirements Commissioned Officers, Other Than Commissioned Warrant Officers Grade) of Army Regulation 135-155 states, in pertinent part, that first lieutenants must complete a resident officer basic course to be eligible for promotion to captain.

10.  Title 10, U. S. Code, section 14304, states officers shall be placed in the promotion zone for that officer’s grade and competitive category and shall be considered for promotion to the next higher grade by a promotion board far enough in advance of completing the years of service in grade specified so that, if the officer is recommended for promotion, the promotion may be effective on or before the date on which the officer will complete those years of service.  The maximum years of service for (mandatory) promotion to the rank of captain is     5 years.  

11.  Authority granted to the Secretaries of the Military Departments in Secretary of Defense Memorandum, Subject:  Redelegation of Authority under Executive Order 12396, dated 9 December 1982, to appoint officers under section 624 of Title 10, U. S. Code, in the grades of O-2 and O-3 was rescinded effective 1 July 2005 based on advice from the Department of Justice that prohibits redelegation below the Secretary of Defense of the President’s authority to appoint military officers.  All military officer appointments under section 12203 of Title 10, U. S. Code, including original appointments in the Reserve of the Army, Reserve of the Air Force, Naval Reserve, and Marine Corps Reserve, not previously approved by 30 June 2005, shall also be submitted to the Secretary of Defense.

12.  Title 10, U. S. Code, section 1552(a)(1), allows the Secretary of a military department to correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or restore an injustice.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DOR as a 1LT should be adjusted from 17 November 2007 to 19 August 2007.

2.  The applicant’s contentions have been considered; however, the advisory opinion correctly points out that no promotion may be granted until the Secretary of Defense approves the appointment.  

3.  The applicant was appointed as a 2LT on 19 August 2005, making his PED to 1LT as 19 August 2007.  The advisory opinion acknowledged that he was inadvertently omitted from the June 2007 administrative review process and that he was selected by the next subsequent board which was approved by the Secretary of Defense on 27 November 2007.

4.  The only way that the date the applicant was appointed as a 1LT could be changed would be to show that the Secretary of Defense approved his promotion on an earlier date.  Unfortunately, the Army Board for Correction of Military Records has no jurisdiction over Department of Defense records and therefore cannot make that type of correction.

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 probably 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.



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      _______ _   _______   ___
       	   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)                                         AR20080012854



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ABCMR Record of Proceedings (cont)                                         AR20080012854



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