IN THE CASE OF:	  

		BOARD DATE:	       21 January 2009

		DOCKET NUMBER:  AR20080014541 


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 promotion to captain (CPT) be back dated to May 2001.

2.  The applicant states, in effect, that he should have been considered and promoted in 2001 at the same time as his peers.  He believes that his Officer Evaluation Report (OER) and receipt of an Army Commendation Medal show he should have been considered earlier.

3.  The applicant submitted an application on this same issue in 2007, but due to redeployment withdrew his request and his application was administratively closed.  On 15 September 2008 he requested his case processing be resumed.  A new application form was completed on 22 September 2008 which included all of the original documentation and prior actions taken in concert with the earlier application, including an advisory opinion dated 1 March 2007.

4.  The applicant provides copies of a 27 October 1997 memorandum for record; his 1999 and 2007 OERs; a 30 June 2000 Army National Guard (ARNG) memorandum; United States Army Human Resources Command, St. Louis (HRC-STL), Missouri, Orders M-10-504460; 10 April 2006 deployment orders; a 2007 Physical Profile; a March 2007 Bronze Star Medal certificate; and several electronic mail communications.

5.  With his rebuttal to an advisory opinion, the applicant also provides copies of an excerpt from a Reserve Officer Personnel Management Act (ROPMA) booklet, listing the minimum and maximum time in grade considerations for promotion; a memorandum advising him of the details needed to be included in his records for consideration by the November 2002 Captain Army Promotion List Selection Board; a 1 August 2002 notification that he was not educationally qualified for promotion because his record did not contain a copies of his civilian diploma or an Officer Basic Course completion form; and a notification that his physical examination and HIV test had expired.

CONSIDERATION OF EVIDENCE:

1.  The applicant had served in an enlisted status on active duty in the Regular Army from 2 May 1984 through 17 March 1988 and in the California ARNG from 25 April 1988 through 7 August 1996.  He was commissioned a second lieutenant (2LT) in the California ARNG on 8 August 1996 and received his permanent Federal recognition on 15 January 1997.

2.  A 27 October 1997 memorandum for record from 2LT T____ A. G_____ describes a training incident wherein the applicant was reportedly injured during physical fitness training.

3.  He was promoted to first lieutenant (1LT) with a date of rank (DOR) of 7 August 1998.  He received permanent Federal recognition on 2 September 1998.

4.  The applicant's 1999 OER rates him above the center of mass, best qualified, with the notation "outstanding performance must promote."

5.  Headquarters, 1215th Troop Command, California ARNG, Permanent Orders 337-2 awarded the applicant the Army Commendation Medal for meritorious service from 1 July 1998 through 9 November 1999.

6.  A Headquarters, California ARNG, memorandum, dated 30 June 2000, notified the applicant that a Medical Duty Review Board had found him unfit for retention.  The medical board proceedings are not of record.

7.  On 30 July 2000, the applicant was separated from the ARNG and transferred to the United States Army Reserve (USAR) Control Group (Reinforcement).

8.  In 2002 the applicant received notification that his file was being prepared to be forwarded to the 4 November 2002 captains promotion board.  He was advised of the details needed to be included in his records for this consideration.  He was notified by separate communications of several deficiencies in his records.

9.  A United States Total Army Personnel Command, St. Louis, Missouri, memorandum, dated 25 July 2003, notified the applicant that he was promoted to CPT with a DOR of 1 September 2003.

10.  HRC-STL Permanent Orders M-10-504460, dated 27 October 2005, ordered the applicant to active duty for 25 days for a medical evaluation to determine if he was fit for mobilization in support of Operation Iraqi Freedom.

11.  The applicant is shown to have served on active duty on two additional occasions and was awarded a Bronze Star Medal for meritorious service in Iraq on 9 March 2007.

12.  In the processing of this case an advisory opinion was obtained from the Chief, Special Actions Branch, Office of Promotions, Reserve Components.  It was recommended that the applicant's request for an earlier DOR be denied.  It was noted that the applicant was considered by the 2002 Captains Department of the Army Reserve Components Selection Board.  The zone of consideration for this board was for 1LTs with a DOR prior to 30 June 1999, and that this was the earliest board the applicant was eligible to be considered by based on his DOR to 1LT of 2 September 1998.

13.  A copy of the advisory opinion was forwarded to the applicant.  He disagreed with the recommendation.  He believes that, if he had not been separated "due to no fault of my own," he would have been promoted to CPT in either 2000 or 2001 and states that 1LT T____ A. G_____, a peer of his, was promoted to CPT in 2000.

14.  Title 10, United States Code, section 14304(a), specifies that officers shall be placed in the promotion zone and shall be considered for promotion to the next higher grade by a promotion board convened under section 14101(a) of this title far enough in advance of completing the maximum years in grade 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.

15.  The ROPMA prescribes the policies and procedures to consolidate and modernize the laws governing the management of Reserve component officers.  ROPMA states that, if otherwise qualified, a 2LT will be considered for promotion to 1LT prior to reaching 24 months of commissioned service in order to be promoted timely upon reaching his or her maximum time in grade of 2 years.  It further provides that 1LTs will be considered for promotion prior to reaching their maximum time in grade of 5 years.



DISCUSSION AND CONCLUSIONS:

1.  The applicant states, in effect, that he should have been considered and promoted in either 2000 or 2001 at the same time as his peers.

2.  The applicant ceased to be a "peer" of the ARNG officer he cites when he was transferred from the ARNG to the USAR Control Group (Reinforcement).  There is no indication that this transfer was improper or that the applicant appealed the medical findings that prompted the transfer.

3.  The applicant was properly considered by and selected for promotion by the 2002 Reserve Captain's board.  His current DOR is 1 September 2003, 5 years from his DOR as a 1LT.  It seems that the "peer" of whom the applicant refers was promoted by a unit vacancy board.  Not all 1LTs can be promoted earlier than the normal 5 years time in grade via unit vacancy boards.  Even if the applicant had remained in the ARNG there is no guarantee that he would have been selected for promotion by a unit vacancy board or that there would have even been a vacancy he could have been promoted into.

4.  The applicant's post 2003 service and accomplishments are noted but are not relevant to the issue of an earlier DOR.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20080014541



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ABCMR Record of Proceedings (cont)                                         AR20080014541



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