IN THE CASE OF:	  

		BOARD DATE:	  30 December 2008

		DOCKET NUMBER:  AR20080014464 


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 her date of rank for major from 11 July 2004 to 25 May 2004.

2.  The applicant states, in effect, that she was in a mobilized status when the 2004 Army Medical Department (AMEDD) board results were released and that should be her date of rank.  She also states that her current date of rank for major should reflect the start date of her initial Active Guard Reserve (AGR) tour. She further states that she was unclear of the eligibility to be promoted to the next grade while in a mobilized status and what the date of rank would be.  Another officer was promoted after starting their initial AGR tour with a date of rank that was considered during their previous mobilization.  

3.  In support of her application, the applicant provides copies of her mobilization orders, her DD Form 214 (Certificate of Release or Discharge from Active Duty), and her major promotion orders.   

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 she was appointed in the United States Army Reserve, Medical Service Corps, as a second lieutenant, effective 13 May 1994, with prior enlisted service.  

3.  The applicant was ordered to active duty for a three year commitment and entered active duty on 9 June 1994.  She was promoted to first lieutenant effective 28 May 1996 and to captain effective 1 June 1998.  She was released from active duty on 3 August 2001 and transferred to a Reserve unit.  

4.  The applicant was ordered to active duty in support of Operation Noble Eagle and entered active duty on 17 January 2003.  On 7 January 2004, her period of active duty was extended from 365 to 544 days.

5.  The applicant was considered and selected for promotion to major by the 2004 AMEDD Reserve Components Selection Board (RCSB) that convened on 21 January and recessed on 11 February 2004.  The board results were approved on 27 April and released on 25 May 2004.

6.  The applicant was released from active duty on 10 July 2004 and transferred to a Reserve unit.

7.  The applicant submits a copy of her promotion memorandum, dated 22 July 2004, showing she was promoted to major with an effective date and date of rank of 11 July 2004.

8.  On 28 October 2008, a staff member of the AMEDD Branch, Human Resources Command, St. Louis, Missouri, verified that the applicant was assigned to an AGR major's position effective 11 July 2004.

9.  Based on the completion of 7 years maximum time in grade, her promotion eligibility date for promotion to major was 31 May 2005.

10.  Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve officers.  Paragraph 4-21d of the regulation specifies that AGR officers selected by a mandatory board will be promoted provided they are assigned/attached to a position in the higher grade.  An AGR officer who is selected for promotion by a mandatory promotion board, but who is not assigned/attached to a higher graded position will be promoted on the date of assignment/attachment to a higher graded position or the day after release from an AGR status.  The date of rank will be the date the officer attained the maximum time in grade (promotion eligibility date) or the date on which assigned/attached to a position in the higher grade, whichever is earlier.  The effective date of promotion cannot be prior to approval of the respective board.

11.  Department of the Army G1 Personnel Policy Guidance (PPG) for Contingency Operations in Support of the Global War on Terrorism specifies that USAR commissioned officers are promoted in accordance with Army Regulation 135-155.  Chapter 13 specifies that mobilized AGR officers are not required to be assigned to a higher graded position, rather they must be matched against a higher graded position prior to promotion and assigned to that higher graded position within 180 days after demobilization or transfer to the Individual Ready Reserve.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to a correction to her date of rank for major from 11 July 2004 to 25 May 2004.  She has not shown error, injustice, or inequity for the relief she now requests.

2.  The applicant's contentions have been noted; however, her promotion eligibility date for promotion to major was 31 May 2005.  As an AGR officer, she was eligible for a date of rank of the date she attained the maximum time in grade (promotion eligibility date) or the date on which she was assigned/attached to a position in the higher grade, whichever was earlier.  

3.  The applicant was assigned to an AGR major's position effective 11 July 2004.  Therefore, she was also not eligible for promotion to major effective 25 May 2004, the release date of the 2004 AMEDD RCSB, as she had not been assigned to a higher graded position on that date.  She was assigned to a higher graded position on 11 July 2004 and her date of rank and promotion effective date for major are proper and she has not shown otherwise.

4.  The applicant was promoted to major in accordance with applicable regulation as provided for in the Army G1 PPG.  The evidence does not show, and the applicant has not satisfactorily shown, that she was unjustly denied an earlier date of rank for major.  Therefore, it is concluded that the applicant was promoted to major on the earliest date she was eligible and in a timely manner and she has not shown otherwise.

5.  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)                                         AR20080014464



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ABCMR Record of Proceedings (cont)                                         AR20080014464


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