IN THE CASE OF:	  

		BOARD DATE:	      28 APRIL 2009

		DOCKET NUMBER:  AR20080016879 


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 his date of rank (DOR) as a lieutenant colonel (LTC) be adjusted from 5 July 2007 to the release date of the September 2005 Reserve Position Vacancy Board (PVB).

2.  The applicant states that he applied for promotion to LTC through the Army Reserve PVB in September 2005.  However, he was notified in 2006 that his promotion file never made it to that board.  He adds that according to an investigation conducted by his command Inspector General (IG), his position vacancy promotion file was sent forward from the 807th Medical Command with all proper documentation and signatures for approval but the file was lost.  He also adds that he assembled his promotion paperwork for consideration by a subsequent board within the 3-day deadline; however, he was unable to meet that deadline.

3.  The applicant provides a copy of a memorandum, dated 18 November 2004, regarding the 2005 Reserve PVB procedures with sample forms and/or memorandums; copies of electronic mail (email) exchange, dated on miscellaneous dates in 2006 and 2007; a copy of the IG letter responding to his inquiry, dated 30 July 2007; and various letters to and/or from his Members of Congress, dated on miscellaneous dates in 2007, in support of his request.

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.  With prior service in the U.S. Air Force Reserve, the applicant’s records show he was appointed as a captain in the Army Nurse Corps of the U.S. Army Reserve (USAR) and executed an oath of office on 16 October 1996.  He subsequently completed the Army Medical Department (AMEDD) Officer Basic Course and was assigned to the 94th General Hospital of the 807th Medical Battalion, Bossier City, LA.

3.  The applicant’s records further show he was promoted to major on 25 July 2001 and completed the AMEDD Reserve Components Officer Advanced Course on 3 July 2002.

4.  On 13 June 2004, the applicant was ordered to a contingency operations temporary tour of active duty in support of Operation Enduring Freedom with duty in Honduras.  He was honorably released from active duty to the control of his USAR unit on 4 October 2004 and was assigned to the 4010th U.S. Army Hospital, New Orleans, LA.

5.  In an email exchange, dated 26 May 2006, the applicant states that he submitted a packet for the September 2005 PVB through the 807th Medical Command.  It was endorsed by the commanding general (CG) of the 807th Medical Command and forwarded to the 90th Regional Readiness Command (RRC).  However, it appears that the 90th RRC did not receive the packet.

6.  On 30 July 2007, the 807th Medical Command IG notified the applicant by letter that an inquiry determined that his September 2005 PVB packet was processed through the 807th Medical Command after being endorsed by the CG and that it was forwarded to the 90th RRC whereupon, unfortunately, it appeared that it was lost.


7.  The applicant's records show that he was considered and selected for promotion by the 2007 Reserve Components Selection Board (RCSB) with an effective date and DOR of 5 July 2007.

8.  An advisory opinion was obtained on 9 February 2009 in the processing of this case.  The Chief of Special Actions Branch, Department of the Army Promotions, U.S. Army Human Resources Command-St. Louis, recommended denial of the applicant’s request.  He stated that a review of the files and database for the 2005 Reserve PVB revealed that the applicant’s file was not considered by that board.  There are no provisions for special selection board consideration due to omission from a PVB.  In addition, the applicant’s records were considered by the 2007 LTC AMEDD of the RCSB based on having a DOR of 25 July 2001 and a promotion eligibility date of 24 July 2008.  This was the earliest mandatory board for which the applicant was eligible.  He was selected for promotion to LTC and given the approval date of that board as his DOR.

9.  The applicant was provided with a copy of the advisory opinion on 17 February 2009; however, he did not respond by the established suspense date.

10.  Army Regulation 135-155 (Army National Guard and U.S. Army Reserve Promotion of Commissioned Officers and Warrant Officer Other than General Officers) prescribes the policies and procedures for the promotion of Reserve Component officers.  The regulation specifies 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 non-unit officers on the Reserve Active Status List).  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 promotion consideration/eligibility requirements.  Promotion to fill authorized valid position vacancies may be filled through promotion of the best-qualified and geographically available officer to the grades of captain through colonel.  All officers in the next lower grade must have met the minimum time in grade for promotion to the next higher grade and be geographically available (non-mobilized) to serve in the position for which considered.

11.  Army Regulation 135-155 also specifies that the unit commander will initiate position vacancy promotion procedures and forward a memorandum listing all unit officers eligible for promotion consideration.  The memorandum will include the following information:  rank of position, branch, area of concentration, position title, unit, unit identification code, location of unit, table of organization and equipment/table of distribution and allowances number, paragraph/line number, and date of position vacancy.  An officer is not eligible for consideration if he or she was not approved for the position per Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers).

12.  Army Regulation 135-155 also specifies that special selection boards (SSB) will convene and consider commissioned officers who were erroneously not considered and reconsider commissioned officers who were considered but not selected by mandatory promotion boards (both not applicable to this applicant).  The regulation does not provide for promotion consideration by an SSB for erroneous non-consideration by a PVB, only by a mandatory promotion board.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DOR as a LTC should be adjusted from 5 July 2007 to the release date of the September 2005 Reserve PVB.

2.  The applicant's record is void of the PVB packet he forwarded through his chain of command.  However, it appears that in anticipation for the September 2005 Reserve PVB, the applicant forwarded a promotion packet through the 807th Medical Command for endorsement by the CG and the 90th RRC.  It also appears that his packet was misplaced and/or lost and therefore was not considered by the 2005 Reserve PVB.  It is unclear why a new packet was not initiated for consideration by the 2006 or 2007 Reserve PVBs.

3.  Nevertheless, the applicant has not sufficiently shown that he would have been selected for the position vacancy absent the loss of his promotion packet and, unfortunately, the regulation does not provide for promotion consideration by an SSB for erroneous non-consideration by a PVB; that option is only available by a mandatory promotion board.

4.  In view of the foregoing evidence, there is insufficient evidence to grant the applicant the requested 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)                                         AR20080016879



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080016879



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1