IN THE CASE OF:	

		BOARD DATE:	  10 March 2009

		DOCKET NUMBER:  AR20080014921 


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 current date of rank (DOR) to lieutenant colonel (LTC) be adjusted retroactively to the appropriate date.

2.  The applicant states that he became eligible for LTC on 17 July 2007 when he had 4-years time in grade (TIG) in accordance with Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers).  The applicant adds that he held an LTC position since 21 March 2005.

3.  In a letter to the Board, the applicant adds that he was selected for the position of battalion commander while he was serving in Afghanistan.  When he was released from active duty, he was given the standard 90-day readjustment period where he would not drill with his new unit.  He instructed the unit technician in his new unit to notify him if the Position Vacancy Board (PVB) announcement became available while he was in his readjustment period.  The PVB announcement did come out when he was on his readjustment period but the unit technician failed to notify him of it.  As a result, the applicant missed the deadline to apply to be considered by the PVB.

4.  The applicant provides excerpts from his military records and e-mail correspondence between him and personnel from his division headquarters.


CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he was commissioned on 18 May 1990.  He was awarded the Areas of Concentration of Infantry and Adjutant General.  He served in the U.S. Army Reserve (USAR) assigned to a troop program unit (TPU) and was promoted to captain on 1 February 1997 and to major on 17 July 2003.

2.  The applicant was ordered to active duty on 2 March 2006 and served in Afghanistan.  On 17 January 2007, the applicant was notified through his chain of command that he had been selected to be a battalion commander in a USAR TPU.  He was honorably released from active duty and transferred back to his USAR TPU on 26 April 2007.

3.  On 8 May 2007, a PVB announcement was made.  In that announcement it was requested that widest dissemination of the PVB announcement be made to ensure all eligible officers are provided the opportunity to apply for available positions.  The suspense for applications to be considered by the PVB was 12 June 2007.

4.  On 24 July 2007, the applicant sent an e-mail concerning the PVB, stating that nobody informed him of the PVB and asked if there were any recourses available to him since the PVB had not convened yet.  The applicant was informed that the Human Resources Command – St. Louis (HRC-STL) strictly enforces the PVB suspense.  The applicant was informed that he would have to apply for the next PVB which was scheduled for March 2008.

5.  On 1 August 2007, the applicant took command of a battalion.

6.  Army Regulation 135-155 states that promotion to fill authorized TPU position vacancies may be filled through promotion of the best qualified, geographically available officers to the grades CW3, CW4, and captain through colonel.  The USAR TPU position vacancy boards will normally be held twice a year.  Table
2–1 of this regulation (Time in grade requirements of commissioned officers, other than commissioned warrant officers), specifies that the minimum TIG for promotion to LTC is 4 years, and the maximum TIG for promotion to LTC is
7 years.  As such, a major may be considered for promotion to LTC by a PVB after serving at least 4 years TIG.  However, the major will be mandatorily considered for promotion at a date which will allow for the major to be promoted to LTC prior to the officer reaching 7 years TIG. 


7.  The USAR unit position vacancy promotion system is designed to promote officers to fill vacancies in USAR units that cannot be filled by local commanders with qualified officers of the authorized grade.  Occasionally, assignments cannot be made from local resources (officers assigned to units and other local nonunit officers on the Reserve Active Status List (RASL).  In this event, the commander of the unit experiencing the position vacancy will send to the appropriate area commander the names of all USAR unit officers in the next lower grade who meet the promotion consideration eligibility requirements.

8.  In the processing of this case an advisory opinion was obtained from the HRC-STL.  The HRC-STL stated that while the applicant's minimum TIG for promotion to LTC was in 16 July 2007, he was not considered by the first PVB for which he was eligible in September 2007.  He was considered by the March 2008 PVB which selected him.  The applicant's DOR was properly established as the approval date of that PVB.  

9.  The applicant was provided a copy of the advisory opinion and given the opportunity to respond.  The applicant did not respond.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant states that he was never notified of the PVB suspense, he has not provided any evidence to substantiate that contention.

2.  However, even if he had it would not form the basis for granting his request.  The applicant appears to be confusing mandatory promotion criteria with PVB procedures.  The applicant was simply eligible for promotion when he reached 4 years TIG.  He had no inherent right to be promoted upon completion of 4 years TIG.

3.  As such, the applicant’s DOR of 23 July 2008 is appropriate since that is the date the March 2008 PVB was approved.

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)                                         AR20080014921



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ABCMR Record of Proceedings (cont)                                         AR20080014921



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