IN THE CASE OF:	  

		BOARD DATE:	  	  15 January 2009

		DOCKET NUMBER:  AR20080014902 


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, payment of all back pay and allowances resulting from the correction made to his date of rank (DOR) for promotion to the grade of colonel (COL)/pay grade O-6.

2.  The applicant states, in effect, he was selected for promotion to COL by a U.S. Army Reserve (USAR) Colonel Special Selection Board (SSB) that adjourned on 16 November 2005.

     a.  On 26 October 2006, orders were issued promoting the applicant to the grade of COL (O-6), effective and with a DOR of 14 October 2006.  Then, on
12 December 2006, his promotion orders were amended to change the DOR to 19 November 2002; however, the effective date remained 14 October 2006.

     b.  The applicant states he was informed by a representative of the U.S. Army Human Resources Command (USA HRC) that he was entitled to back pay.  He also states that he requested back pay from 19 November 2002 to the present, but was advised by an official from the Office of Reserve Pay, USA HRC, that he was not eligible for back pay because the effective date of the promotion is the controlling date with respect to all back pay issues.

     c.  The applicant states that he believes the effective date of his promotion to COL (O-6) should be 19 November 2002, the same date as his DOR.  He cites Title 10, United States Code (USC), section 14502(e)(2), as the authority for correcting the effective date of his promotion for pay and allowances.
3.  The applicant provides copies of Headquarters, USA HRC, St. Louis, Missouri, Orders B-10-608072, dated 26 October 2006 and Headquarters, USA HRC, St. Louis, Missouri, Orders B-10-608072A01, dated 12 December 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military personnel records show that he enlisted in the USAR for a period of 6 years on 25 September 1973.  On 7 June 1975, he was ordered to active duty in the grade of second lieutenant (2LT)/pay grade O-1.  On
1 March 1977, the applicant was released from active duty and transferred to the USAR Control Group (Annual Training), Reserve Components Personnel Administration Center, St. Louis, Missouri.  On 20 October 1986, the applicant was ordered to active duty for a period of 3 years and detailed in the Judge Advocate General Corps.  He was promoted to the grade of lieutenant colonel (LTC)/pay grade O-5, effective and with a DOR of 20 August 1998.

2.  The applicant's military personnel records contain a copy of Headquarters, USA HRC, St. Louis, Missouri, memorandum, dated 12 May 2005, subject: Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter) that notified the applicant he completed the required years of qualifying reserve service and was eligible for retired pay on application at age 60 in accordance with Title 10, USC, Chapter 1223.

3.  The applicant's records contain a copy of Headquarters, 81st Regional Readiness Command, Birmingham, Alabama, Orders 05-158-00001, dated
7 June 2005, that reassigned the applicant from his (then) current USAR assignment to the Retired Reserve, effective 7 July 2005 based upon maximum authorized years of service.

4.  The applicant's records contain a copy of Headquarters, 81st Regional Readiness Command, Birmingham, Alabama, Orders 06-275-00013, dated
2 October 2006, that revoked Headquarters, 81st Regional Readiness Command, Birmingham, Alabama, Orders 05-158-00001, dated 7 June 2005, pertaining to the applicant's assignment to the Retired Reserve.

5.  The applicant's records contain a copy of Headquarters, 81st Regional Readiness Command, Birmingham, Alabama, Orders 06-287-00007, dated
14 October 2006, that assigned the applicant to the Standby Reserve (Active Status List), St. Louis, Missouri, effective 14 October 2006.

6.  The applicant's military personnel records contain a copy of Headquarters, USA HRC, St. Louis, Missouri, Orders B-10-608072, dated 26 October 2006, that promoted the applicant to the grade of COL (O-6), effective and with a DOR of
14 October 2006.  The order shows the authority for this promotion was Title 10, USC, section 14502, and also contains additional instructions that indicate selection was by Special Board 2005SS12R1, which adjourned on 16 November 2005.

7.  The applicant's military personnel records contain a copy of Headquarters, USA HRC, St. Louis, Missouri, Orders B-10-608072A01, dated 12 December 2006, that amended the applicant's DOR for promotion to the grade of COL (O-6) to read 19 November 2002.  The order also shows the authority for this amendment was Title 10, USC, section 14502.

8.  The USA HRC, Integrated Web System (IWS) online application contains copies of records that document the applicant’s selection under the 2002 criteria by Special Board 2005SS12R1 and the processing of the applicant’s promotion orders.  This documentation shows, in pertinent part, officials at Headquarters, USA HRC, Office of Promotions, Reserve Components, St. Louis, Missouri, confirmed that Headquarters, 81st Regional Readiness Command, Birmingham, Alabama, assigned the applicant to the USAR Control Group, Individual Ready Reserve on 14 October 2006 and that is the earliest effective date USA HRC may authorize, unless that date is amended to an earlier date. 

9.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the Army National Guard of the United States (ARNGUS) and of commissioned and warrant officers of the USAR.  

     a.  Chapter 2 (Promotion Eligibility and Qualification Requirements), paragraph 2-11 (Consideration for promotion to colonel), states that selection boards will convene at the discretion of the Secretary of the Army to consider ARNGUS and USAR officers in all competitive categories for promotion to colonel.  These boards will consider and recommend only those who are in an active status.

     b.  Chapter 2, Table 2-1 (Time in grade requirements commissioned officers, other than commissioned warrant officers), provides that for promotion from lieutenant LTC (O-5) to COL (O-6), the minimum years in lower grade is 3 years; the maximum years in lower grade is announced annually; and the normal time in grade is 5 years, subject to the needs of the Army.

     c.  Chapter 3 (Board Schedules and Procedures), Section III (Promotion Reconsideration Boards), paragraph 3-22 (Correction of military records as a result of a special selection board action), provides, if the report of a special selection board, approved by the President, recommends for promotion to the next higher grade an officer not currently eligible for promotion, or a former officer whose name was referred to it, the Secretary of the Army may act through the Army Board for Correction of Military Records to correct the military record of the officer or former officer to correct an error or remove an injustice resulting from not being selected for promotion by the board which should have considered, or which did consider, the officer (10 USC 14502(e)(3)).

     d.  Chapter 4 (Processing Selection Board Recommendations), Section III (Dates of Promotion), paragraph 4-15 (General), states, in pertinent part, follow the procedures in this section in computing effective promotion dates for all other Reserve Component commissioned officers serving on the Reserve Active-Status List and warrant officers.  Do not antedate effective dates of promotion unless required by law.  It also states that the effective date of promotion for commissioned officers (except commissioned warrant officers) may not precede the date on which the promotion memorandum is issued.  Do not issue the promotion memorandum before the date the promotion board results are approved and confirmed by the Senate (if required).  In addition, the officer must already be assigned/attached to a position in the higher grade or, if an Individual Ready Reserve/Individual Mobilization Augmentation officer selected by a mandatory promotion board, have completed the maximum years of service in grade in the current grade. 

     e.  Chapter 4, Section III, paragraph 4-21 (Effective dates), states, in pertinent part, except as provided elsewhere in this regulation, 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.  This paragraph also provides that for promotion of non-unit officers, 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 time in grade, whichever is later.

10.  Title 10 of USC, Subtitle E (Reserve Components), Part III (Promotion and Retention of Officers on the Reserve Active Status List), Chapter 1407 (Failure of Selection for Promotion and Involuntary Separation), section 14502 (Special selection boards: correction of errors), subsection e (Appointment of Officers Recommended for Promotion), provides:  (1) an officer whose name is placed on a promotion list as a result of this section, shall, as soon as practicable, be appointed to the next higher grade in accordance with the law and policies which would have been applicable had he been recommended for promotion by the board which should have considered or which did consider him; (2) an officer who is promoted to the next higher grade as the result of the recommendation of a special selection board convened under this section, shall, upon such promotion, have the same date of rank, the same effective date for the pay and allowances of that grade, and the same position on the reserve active - status list as the officer would have had if the officer had been recommended for promotion to that grade by the selection board which should have considered, or which did consider, the officer; and (3) if the report of a special selection board convened under this section, as approved by the President, recommends for promotion to the next higher grade an officer not currently eligible for promotion or a former officer whose name was referred to it for consideration, the Secretary concerned may act under section 1552 of this title to correct the military record of the officer or former officer to correct an error or remove an injustice resulting from not being selected for promotion by the board which should have considered, or which did consider, the officer.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that he should receive the appropriate adjustments to his pay and allowances based on the correction that was made to his DOR for promotion to COL (O-6) (i.e., from 14 October 2006 to 19 November 2002) because that is the date he would have been promoted had he been recommended for promotion by the board which should have considered or which did consider him for promotion.

2.  Records show that the applicant was assigned to the Retired Reserve, effective 7 July 2005, based upon maximum authorized years of service.

3.  The evidence of record shows the applicant's records were considered by a Department of the Army Special Selection Board under the 2002 criteria that adjourned on 16 November 2005 and, as a result of the review, the applicant’s promotion to the rank of COL (O-6) was announced, effective and with a DOR of 14 October 2006.  The evidence of record also shows that the applicant's assignment to the Retired Reserve was revoked on 2 October 2006 and he was assigned to the Standby Reserve (Active Status List), effective 14 October 2006.  The evidence of record further shows that the applicant's DOR to COL (O-6) was subsequently corrected to 19 November 2002.

4.  Given the fact that the applicant was considered and selected by a Special Selection Board in November 2005 under the 2002 criteria, it is evident that his assignment to the Retired Reserve, effective 7 July 2005, based upon maximum authorized years of service was in error.  Based on the applicant’s selection for promotion to COL (O-6), Headquarters, USA HRC officials established his DOR as 19 November 2002, thereby acknowledging error in that the applicant was not considered for promotion consideration in 2002 and offering at least tacit acknowledgement that the applicant would have been eligible for promotion to COL (O-6) on that date.  In this regard, it is reasonable to conclude that had the applicant been correctly considered and selected for promotion in 2002, he would have also then been assigned or attached to a position in the higher grade and he would have met all promotion qualifications.

5.  Based on the evidence of record, it is clear that the applicant was in an active status in the USAR when the orders announcing his promotion to COL (O-6) were promulgated.  In addition, the evidence of record shows an officer whose name is placed on a promotion list as a result of selection by a special selection board shall be appointed to the next higher grade in accordance with the law and policies which would have been applicable had he been recommended for promotion by the board which should have considered or which did consider him and shall, upon such promotion, have the same date of rank, the same effective date for the pay and allowances of that grade, and the same position on the reserve active - status list as the officer would have had if the officer had been recommended for promotion to that grade by the selection board which should have considered, or which did consider, the officer.

6.  In view of the foregoing, it would be appropriate to correct the applicant's records to show he was promoted to the rank of COL (O-6), effective and with a DOR of 19 November 2002.  Therefore, the applicant is entitled to all pay and allowances due as a result of his promotion to the rank of COL (O-6), effective
19 November 2002.

BOARD VOTE:

____X ____  ___X_____  ___X____  GRANT FULL RELIEF 

________  ________  ________  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 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 the rank of colonel/pay grade O-6, effective and with a date of rank of 19 November 2002.

2.  As a result, the Defense Finance and Accounting Service (DFAS) shall be notified of the Board's determination and remit payment of all back pay (i.e., pay and allowances, less any withholdings and/or deductions) that may be due as a result of this correction.




      _______ _   _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)                                         AR20080014902



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ABCMR Record of Proceedings (cont)                                         AR20080014902



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