IN THE CASE OF:	  

		BOARD DATE:	  18 June 2009

		DOCKET NUMBER:  AR20080017487 


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, an adjustment of his major (MAJ) date of rank to 8 June 2004.

2.  The applicant states, in effect, through no fault of his own, the cut-off date for the 2004 MAJ Reserve Component Selection Board (RCSB) was captains (CPTs) with a date of rank of 31 August 1988 and his date of rank was 3 October 1988.  He claims he should have been considered for promotion with his 1998 year group, and that his year group for first lieutenant (1LT) was 15 July 1991, and he had already waited an extra year to be promoted to CPT because the Reserve Officer Personnel Management Act (ROPMA) was enacted.

3.  The applicant provides the following documents in support of his application:  DA Form 1059 (Academic Evaluation Report); 1LT promotion orders, dated 17 June 1991; CPT promotion memorandum, dated 3 October 1998; MAJ promotion orders, dated 28 June 2005; Army Physical Fitness Test Scorecard; mobilization orders, dated 27 September 2005; and Active Guard Reserve (AGR) active duty orders, dated 6 August 2007.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that after having served on active duty in the United States Marine Corps (USMC) and in the USMC Reserve in an enlisted status, he enlisted in the Army National Guard (ARNG) in an enlisted status on 27 June 1986 and served in that status until 15 July 1988.
2.  On 16 July 1988, the applicant was appointed as a second lieutenant in the United States Army Reserve (USAR) and he entered active duty in that status on 11 March 1990 as an obligated volunteer officer for 3 years.

3.  The applicant's record confirms he completed the requirements and was awarded a Bachelor of Science degree from Northwest Missouri State University on 12 December 1989 and that he completed the Field Artillery Officer Basic Course (OBC) at Fort Sill, Oklahoma, in 1990.

4.  On 15 July 1991, while serving on active duty, the applicant was promoted to 1LT.

5.  On 1 November 1994, the applicant was honorably released from active duty (REFRAD) in the rank of 1LT after completing 4 years, 7 months, and 21 days of active duty service during the period.  Upon his REFRAD, he was returned to the USAR Control Group (Reinforcement).

6.  On 13 November 1995, the applicant was reassigned from the USAR Control Group (Reinforcement) to the 212th Quartermaster Company, Arden Hills, Minnesota.

7.  On 3 September 1998, the applicant completed the Quartermaster Officer Advanced Course (OAC) at Fort Lee, Virginia.

8.  On 3 October 1998, the applicant was promoted to CPT.

9.  On 8 June 2005, the applicant was promoted to MAJ.

10.  On 6 August 2007, the applicant was ordered to active duty as a member of the AGR program and assigned to Fort Leavenworth, Kansas, where he remained serving as of the date of his application to the Board.

11.  During the processing of this case, an advisory opinion was obtained from the Chief, Special Actions Branch, Department of the Army (DA) Promotions, United States Army Human Resources Command (HRC), St. Louis, Missouri.  This official indicates that based on the applicant's 1LT date of rank, he was in the zone of consideration for the 1994 CPT Selection Board; however, there is no indication why he was not considered for this board unless he had not yet been 

assessed into the Reserve strength at the time.  He further states there is also no apparent reason why the applicant was not considered by the 1995 and 1996 boards.

12.  The HRC Chief, Special Actions Branch, DA Promotions, further states that the database reflects the applicant was REFRAD and transferred to the USAR on 1 November 1994 and on 13 November 1995 he was reassigned to a troop program unit (TPU).  On 1 October 1998, ROPMA took effect and changed the promotion consideration time in grade requirements for CPT from 4 to 5 years.  He further states the record shows the applicant was considered and selected for promotion to CPT by the 1997 RCSB and was given a date of rank of 3 October 1998 as a TPU officer.  He also indicates the 2004 MAJ RCSB that was held on 2 March 2004 considered all CPTs with a date of rank of 31 July 1998 and earlier, which excluded him from consideration because his date of rank did not place him in the zone of consideration.

13.  The HRC promotion official further states that the applicant was ultimately considered and selected for promotion to MAJ by the 2005 MAJ RCSB and given a date of rank of 8 June 2005, the approval date of the promotion board.  He further confirms the applicant met the civilian education requirement for promotion to CPT at the time the 1994 CPT selection board convened and that the Soldier Management System database shows a major personnel action transferring the applicant from active duty to the USAR strength on 13 November 1994.  As a result, this HRC promotion official recommends the applicant be given a Special Selection Board (SSB) for calendar year 1994 and 1995 and if selected, depending on what date of rank he is given, and if he meets all education requirements to MAJ, determine if he is eligible for an earlier consideration for promotion to MAJ prior to 2005.

14.  The applicant was provided the HRC advisory opinion and on 6 April 2009 he concurred with its contents.

15.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), effective 13 August 2004, prescribes policy and procedures used for selecting and promoting commissioned officers of the ARNG and of commissioned and warrant officers of the USAR.  Chapter 2 outlines promotion eligibility and qualification requirements and states, in pertinent part, that the time in grade requirement for promotion to CPT is a minimum of 2 years and a maximum of 5 years and for MAJ it is a minimum of 4 years and a maximum of 7 years.  The military education requirement for 

promotion to CPT is completion of OBC and for MAJ it is completion of OAC.  Effective 1 October 1995, the civilian education requirement for promotion to CPT and to MAJ is completion of a baccalaureate degree.  ROPMA, enacted on 1 October 1996, changed the time in grade requirement for promotion to CPT from 4 to 5 years.

16.  Section III of the Reserve officer promotion regulation contains guidance on promotion reconsideration boards.  Paragraph 3-19 states, in pertinent part, that officers who have either failed of selection for promotion, or who were erroneously not considered for promotion through administrative error may be reconsidered for promotion by either a promotion advisory board or an SSB.

DISCUSSION AND CONCLUSIONS:

1.  By regulation, officers who were erroneously not considered for promotion through an administrative error may be reconsidered for promotion by an SSB.  In this case, it appears the applicant met the eligibility requirements for promotion to CPT and should have been considered for promotion by the calendar year 1994 promotion selection board; however, he was erroneously omitted from consideration by this board.  He was also omitted from consideration by the calendar 1995 promotion selection board.  Therefore, as recommended by HRC promotion officials, it would be appropriate and serve the interest of justice to refer the applicant's record to an SSB for consideration for promotion to CPT under the criteria of the 1994 (if otherwise eligible, given his 1 November 1994 REFRAD date) and 1995 promotion boards and, if selected, to promote him to CPT effective and with the date of rank he would have received under that criteria.

2.  Further, if the applicant is selected for promotion to CPT by the SSB under the 1994 or 1995 criteria, his record should then be referred to all MAJ promotion boards he would have been eligible for based on his new CPT date of rank and, if selected, be assigned an appropriate promotion date and date of rank based on the earlier criteria.

3.  Finally, if he is promoted to CPT under the 1994 or 1995 criteria, he should be provided all back pay and allowances due as a result.  In addition, if he ultimately is selected for and promoted to MAJ, he should also be provided any back pay and allowances due as a result of that promotion.

4.  If the applicant is not selected for either promotion to CPT or MAJ under earlier criteria, he should be so notified.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X__  ____X___  ____X___  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 partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  if otherwise eligible, placing his record before an SSB to consider him for promotion to CPT using the criteria of the 1994 and 1995 CPT Army Promotion List Selection Boards;

	b.  if selected for promotion to CPT by the SSB, assigning a promotion effective date and date of rank determined by Departmental officials using the criteria cited;

	c.  if appropriate, by placing his record before an SSB to consider him for promotion to MAJ under the criteria of all promotion selection boards which would have considered him for promotion based on the earlier CPT date of rank established, provided he was otherwise qualified and met all other prerequisites for promotion;

	d.  providing him all back pay and allowances due as a result of any earlier promotion to CPT or earlier promotion to MAJ; and

	e.  if not selected for promotion to CPT or MAJ under earlier criteria, by so notifying him of his non-selection.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends 

denial of so much of the application that pertains to an immediate adjustment of his MAJ date of rank to 8 June 2004.



      ___________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)                                         AR20080017487



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ABCMR Record of Proceedings (cont)                                         AR20080017487



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