IN THE CASE OF:
BOARD DATE: 26 March 2009
DOCKET NUMBER: AR20080017969
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 her record be corrected to show she was reinstated on her original promotion list and that her effective date of promotion to captain (CPT) be adjusted to 1 April 2007 which is her original promotion eligibility date.
2. The applicant states, in effect, that her original CPT promotion orders were revoked as a result of an adverse Officer Evaluation Report (OER) that was ultimately removed based on an action by the Officer Special Review Board (OSRB) which also recommended that she be reinstated on the promotion list.
3. The applicant provides an OSRB Record of Proceedings in support of her application.
CONSIDERATION OF EVIDENCE:
1. The applicant's record shows she was appointed a second lieutenant in the United States Army Reserve, on 29 January 2004, and that she subsequently entered active duty in that status.
2. On 17 August 2005, the applicant was promoted to first lieutenant, and the record confirms she was selected for promotion to CPT by the Fiscal Year 2007 (FY07) CPT Promotion Selection Board (PSB).
3. On 9 March 2007, the applicant's promotion to CPT was authorized and announced in United States Army Human Resources Command (HRC) Order Number 078-037 with a date of rank and effective date of 1 April 2007.
4. The record further shows the applicant received an adverse annual OER covering the period 22 January 2006 through 21 January 2007.
5. On 24 April 2007, HRC Order Number 078-037 pertaining to the applicant's promotion to CPT was revoked in HRC Order Number 114-004.
6. On 21 October 2008, the OSRB recommended the removal of the adverse OER covering the period 22 January 2006 through 21 January 2007, and recommended the applicant be reinstated on the FY07 promotion selection list and that she be promoted to CPT accordingly.
7. On 19 February 2009, HRC Order Number 050-081 authorized the applicant's promotion to CPT with a date of rank and effective date of 29 January 2009.
8. In connection with the processing of this case, an advisory opinion was obtained from the HRC Deputy Chief of Promotions. This official confirms the applicant was originally selected for promotion by the FY07 CPT PSB and that her original promotion eligibility date based on this selection was 1 April 2007. The official further indicates the applicant was removed from the promotion list due to a Referred OER which was later removed from her official record based on the recommendation of the OSRB, which also recommended the applicant be reinstated on the promotion list and promoted accordingly. As a result, this HRC promotion official recommends approval of the applicantÂ’s request. The applicant concurred with this advisory opinion on 7 January 2009.
9. Army Regulation 600-8-29 (Officer Promotions) provides the Army's officer promotion policy. Paragraph 1-21 provides guidance on date of rank and effective date of promotion after a delay and Paragraph 1-21d states, in pertinent part, that when an officer's promotion suspension is ended favorably and he or she is exonerated of any wrongdoing, or a determination is otherwise made that an officer was qualified for promotion during the entire period of delay, the officer will be promoted with the date of rank and effective date of promotion (pay and allowances), and position on the active duty list he or she would have received had there been no delay.
DISCUSSION AND CONCLUSIONS:
1. The applicant's petition to be reinstated on the original promotion list and that the effective date of her promotion to CPT be adjusted to 1 April 2007 was carefully considered and found to have merit.
2. By regulation, if an officer's promotion suspension is ended favorably and he or she is exonerated of any wrongdoing, or a determination is otherwise made that an officer was qualified for promotion during the entire period of delay, the officer will be promoted with the date of rank and effective date of promotion
(pay and allowances), and position on the active duty list he or she would have received had there been no delay.
3. The evidence of record confirms that the OSRB action on this case resulted in the removal of the adverse OER that was the basis for the applicant's removal from her original promotion list and in the revocation of her 1 April 2007 promotion. It further confirms that the OSRB recommended the applicant's promotion based on its OER removal action. As a result, it would be appropriate to correct the applicant's record to show she was reinstated on the FY 2007 promotion selection list and that she was eligible for and promoted to CPT with a date of rank and effective date of 1 April 2007, as recommended in the HRC advisory opinion. Further, it would serve the interest of justice and equity to provide the applicant all back pay and allowances due as a result of this correction.
BOARD VOTE:
___x____ ___x____ ___x____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
78BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing she was reinstated on the Fiscal Year 2007 CPT Promotion Selection List; that she was promoted to CPT with a date of rank and effective date of
1 April 2007; and by providing her all back pay and allowances due as a result of these corrections.
_______ 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) AR20080017969
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