IN THE CASE OF:	  

		BOARD DATE:	        29 January 2009

		DOCKET NUMBER:  AR20080015237 


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, for a special selection board (SSB) to consider him for promotion to lieutenant colonel (LTC) below the zone (BZ).

2.  The applicant states that he was brought back on active duty on 1 October 2006 in his U.S. Army Reserve (USAR) rank of major (MAJ).  However, he was ineligible for promotion consideration to LTC because he had not been on active duty for 1 year.  This caused the promotion system to bypass his BZ look for promotion.  He adds that he was told that his date of rank (DOR) would be adjusted so that he would have a chance to have a key developmental position before he would be considered for promotion.  This would have allowed him to have a chance to be more competitive and eligible for promotion.

3.  The applicant provides a self-authored statement, dated 19 August 2008; two letters of recommendation, dated 20 August 2008 and 21 August 2008; and a computer printout titled:  Officers Selected for Call to Active Duty, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was appointed as an infantry second lieutenant in the USAR and executed an oath of office on 8 November 1988.  His records also show he completed the Infantry Officer Basic and Advanced Courses and was promoted to captain on 14 March 1996.

2.  On 27 January 2003, the applicant was ordered to active duty in support of Operation Noble Eagle.  He completed a period of contingency operations temporary tour of active duty in support of Operation Enduring Freedom from 26 January 2005 to 30 September 2006, and was honorably released from active duty to the control of his USAR unit on 30 September 2006.

3.  On 1 October 2006, the applicant was ordered to active duty in a voluntary indefinite status with a minimum 3-year active duty service obligation.  He was assigned to the Future Force Integration Directorate, Fort Bliss, Texas.

4.  On 7 February 2007, the U.S. Army Human Resources Command (HRC)-Alexandria, Virginia, published Orders 038-002 adjusting the applicant's DOR to MAJ to 13 March 2003.

5.  On 21 November 2007, HRC-Alexandria published Military Personnel (MILPER) Message 07-321.  This message announced the criteria for the fiscal year 2008 (FY08) LTC promotion board that was scheduled to convene on 12 February 2008.  The zone of consideration for all Maneuver, Fires, and Effects (MFE) officers, which included the infantry branch, was as follows:

Zone of Consideration
Grade and DOR
Above the Zone (AZ)
MAJ with ADOR 30 September 2002 and earlier
Promotion Zone (PZ)
MAJ with ADOR 1 October 2002 through 30 September 2003
Below the Zone (BZ)
MAJ with DOR 1 October 2003 through 29 September 2004
6.  On 17 June 2008, HRC-Alexandria published MILPER Message 08-160 that announced the official release schedule for the FY08 LTC MFE promotion selection as 1 July 2008.  The applicant was not selected for promotion.

7.  In his self-authored statement, dated 19 August 2008, the applicant states that he strongly recommends his PZ look for promotion be reevaluated and reconsidered even though the promotion board had already convened because this would greatly benefit the Army and the Soldier.  He adds that he was called to active duty on 1 October 2006 to assist in filling critical shortages.  His original first look, or BZ, for promotion to LTC would have been in February 2007.  However, he was not eligible for consideration because he had not been on active duty for 1 year.  This caused him to be ineligible for a BZ consideration.  He further adds that his [career management] branch told him that his DOR would be adjusted accordingly to allow him to be competitive at promotion time.  When the February 2008 board convened, he thought this was his BZ instead of a PZ look for promotion.  This put him at an unfair disadvantage because he has not had the time to be competitive for promotion, not a fault of his own.  His DOR should have been adjusted accordingly to give him an opportunity to excel during his primary look for promotion.  He concludes that he understands that his PZ for promotion had already occurred; however, he is asking the Board to review the situation and reconsider his eligibility and competitiveness for promotion and make this current consideration as his BZ instead of PZ look for promotion.

8.  The applicant submitted two letters of recommendation as follows:

	a.  in a letter, dated 20 August 2008, the Chief, Financial Management Branch, HRC-Alexandria, recommended the applicant's request be considered in order to ensure he exhausted every opportunity to clarify his promotion eligibility and DOR; and

	b.  in a letter, dated 21 August 2008, the Future Force Integration Directorate G3 recommended reconsideration of the applicant's PZ promotion to LTC.  He adds that when the applicant was brought back on active duty on 1 October 2006, he was already in the BZ but could not be considered for promotion in that zone because he had not been on active duty for the required 1 year.  He was significantly disadvantaged for promotion consideration by the FY08 board.

9.  An advisory opinion was obtained on 24 November 2008 in the processing of this case.  The Deputy Chief, Promotions, HRC-Alexandria, recommended the applicant's request be denied.  He stated that in accordance with Army Regulation 600-8-29 (Officer Promotions) SSBs will not consider officers for below-the-zone promotion.  It also states that officers selected from BZ must be truly outstanding and clearly superior to those who would otherwise be selected from the in or above the promotion zone.  The applicant was correctly looked at according to his date of rank, which has been verified, by the regularly scheduled FY08 LTC Force Sustainment Promotion Board in the PZ.

10.  The applicant was furnished with a copy of this advisory opinion on 1 December 2008 for his input; however, he failed to respond.

11.  Army Regulation 600-8-29 prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the active duty list (ADL).  It states in pertinent part, that to be considered for promotion by a selection board, an officer must be on the ADL on the day the board convenes.  Commissioned officers with less than 1 year of continuous active duty (since their most recent placement on the ADL) before the board convenes are not eligible for consideration by a promotion selection board.  Requests for exception to this requirement must be forwarded through the first general officer in the chain of command to Commander, HRC-Alexandria.  The requests must substantiate that the officer’s break in service does not warrant the protection provided by the 
1-year active duty requirement.  Requests for exception will be processed on a case-by-case basis. 

12.  Paragraph 1-34 of Army Regulation 600-8-29 states, in pertinent part, that selection boards considering officers for promotion to LTC may recommend outstanding officers from BZ of consideration.  Below-the-zone promotions are an essential part of the promotion system.  They are intended to provide officers of exceptional ability an opportunity to advance quickly to more responsible positions, help retain high quality officers, and give officers an incentive to perform at their highest potential.  Since only a few officers may be selected for promotion from BZ of consideration, failure to be selected will neither count as a nonselection for promotion nor reflect unfavorably on an officer.  Special selection boards will not consider officers for BZ promotion.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that an SSB should consider him for BZ promotion to LTC.

2.  The evidence of record shows that the applicant was ordered to active duty on 1 October 2006.  The earliest he could have qualified for consideration for promotion to LTC was 1 year from the date he was on the ADL, i.e., 1 October 2007.  He could not have been considered by the fiscal year 2007 selection board which convened in February 2007 because he was ineligible.

3.  The evidence of record also shows that after his voluntary entry onto active duty, his DOR as a MAJ was adjusted to 13 March 2003.  This DOR fell between 1 October 2002 and 30 September 2003 and thus qualified him for consideration in the PZ of the FY08 LTC board that convened in February 2008.  His nonselection for promotion by that board neither indicates an error nor an injustice.

4.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement.  Therefore, he is not entitled to relief.


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.


															XXX
      _________________________
                 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)                                         AR20080015237



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ABCMR Record of Proceedings (cont)                                         AR20080015237



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