IN THE CASE OF:	  

		BOARD DATE:	        28 May 2009

		DOCKET NUMBER:  AR20080017923 


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, that his date of rank (DOR) to major be adjusted, that he be promoted to lieutenant colonel, and that he be paid back pay. 

2.  The applicant states, in effect, that he was not promoted to major in accordance with the regulation and that the delay of his promotion occurred because the information contained on his DA Form 5074-R (Record of Award of Entry Grade Credit (Medical and Dental Officers)) was not appropriately incorporated into establishing his time in grade and eligibility for promotion.  He points out that he returned to the military while he was in his residency and that he enrolled in the National Army Medical Department Augmentation Detachment (NAAD) on 19 May 2000.  He indicates that after residency he was able to assume a more active role within the military and he transferred to the U.S. Army Reserve (USAR) on 26 February 2001.  He goes on to state that while serving in the USAR a Battalion Surgeon position became available in the Army National Guard and he transferred to the Army National Guard on 26 October 2001.  He claims that his transition from NAAD to the USAR to the Army National Guard took place over a relatively short period of time but an error occurred during this transition and that he was unnecessarily required to complete time in grade to promotion to major and his DA Form 5074-R supports that fact. 

3.  The applicant provides 11 enclosures outlined in his letter, dated 19 August 2008, in support of his request.


CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the Regular Army, the applicant was appointed a second lieutenant in the USAR on 16 June 1984.  He was promoted to first lieutenant on 22 May 1987.  On 8 May 1992, he was honorably discharged from the USAR due to being twice non-selected for promotion.

2.  On 23 June 1995, the applicant earned his Doctor of Medicine degree.  

3.  On 19 May 2000, he accepted a commission as a captain in the USAR in the Army Medical Department (AMEDD).

4.  A DA Form 5074-R, dated 27 June 2000, shows the applicant received 
10 years, 4 months, and 18 days of entry grade constructive credit.  

5.  On 26 October 2001, the applicant accepted an appointment as a captain in the Army National Guard.  

6.  A DA Form 5074-1-R (Record of Award of Entry Grade Credit (Health Services Officers)), dated 14 January 2002, shows the applicant's date of appointment as a captain is 26 October 2001 with his DOR to captain is 
1 January 1990.  

7.  The applicant was promoted to major on 1 December 2005.

8.  In the processing of this case, a staff advisory opinion was obtained from the National Guard Bureau on 30 December 2008.  That office recommends that the applicant's record be forwarded to a Special Selection Board (SSB) for promotion to major under the 1997 promotion criteria.  If selected, that his record also be forwarded to another SSB for promotion to lieutenant colonel under the 2005 promotion criteria.  The recommendation is based on the applicant's DA Form 5074-R, dated 14 January 2002, which reflects his date of appointment as a captain on 26 October 2001, with a DOR as 1 January 1990.  The opinion states that the Army National Guard should have advised the applicant at the time of his initial appointment to request a SSB for promotion to major.     

9.  On 7 January 2009, the Army Review Boards Agency submitted the applicant's request to the Officer Promotions, Reserve Components office in St. Louis, Missouri for consideration under the Reserve Officer Personnel Management Act.  


10.  On 30 March 2009, a staff advisory opinion was obtained from the Chief, Special Actions, Department of the Army Promotions, U.S. Army Human Resources Command, St. Louis, Missouri.  The opinion stated that the applicant was a two time non-select in the Adjutant General branch and was discharged from the USAR on 6 May 1992.  He pleaded his case to come back in the USAR as he was out of the country studying to become a doctor.  He was given the opportunity to come back in the USAR and branch transfer to the AMEDD.  The applicant was reappointed on 19 May 2000 as an AMEDD captain with 10 years, 4 months, and 18 days constructive credit.  His adjusted captain DOR as an AMEDD captain is 1 January 1990.  In accordance with Army Regulation 
135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 2-6, an officer that has been in an inactive status will not be considered by a promotion board for at least 1 year after the return to active status.  Therefore, the first year the applicant was eligible to be considered by a major AMEDD board was the 2002 Major AMEDD Department of the Army (DA) Reserve Components Selection Board.  That office recommends that the applicant be considered by a SSB for the 2002 criteria year and subsequent years, if necessary.      

11.  On 7 April 2009, a copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  On 11 April 2009, he concurred with the advisory opinion.

12.  Paragraph 2-6 of Army Regulation 135-155 states, in pertinent part, that an officer returned to an active status after having been in an inactive or retired status will not be considered for a Reserve of the Army promotion (mandatory or USAR position vacancy; or, in the case of an Army National Guard officer, Federal recognition) until at least 1 year after the date of return to an active status. 

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant was discharged from the USAR on
6 May 1992 due to being twice non-selected for promotion.  He was reappointed as a captain in the USAR in the AMEDD on 19 May 2000 and his adjusted captain DOR was 1 January 1990.  He was promoted to major on 1 December 2005.  

2.  Since the governing regulation states that an officer that has been in an inactive status will not be considered by a promotion board for at least 1 year after the return to active status, the first year the applicant was eligible to be considered by a major AMEDD board was the 2002 Major AMEDD DA Reserve Components Selection Board.  Therefore, the applicant’s records should be submitted to a SSB for promotion reconsideration to major under the 2002 criteria year and subsequent years, if necessary.

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 submitting his records to a duly constituted SSB for promotion to major under the 2002 criteria and subsequent years if necessary.

2.  That, if he is selected for promotion, he be promoted and assigned an appropriate date of rank in accordance with the regulatory policies in effect at the time.

3.  That, if he is not selected for promotion, he be notified accordingly. 

4.  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 promotion to lieutenant colonel.  




      _______ _  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)                                         AR20080017923





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ABCMR Record of Proceedings (cont)                                         AR20080017923



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