BOARD DATE:	  16 July 2009

		DOCKET NUMBER:  AR20080018275 


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, correction of his date of rank for major to 1 March 2008.

2.  The applicant states, in effect, that the promotion database contained an incorrect date for his date of rank for captain and this changed his zone of consideration code, thus leaving him in the wrong zone of consideration.  He also states, in effect, he was selected for promotion to major by the Fiscal Year 2007 (FY07) board and should be granted his original date of rank for which he would have been promoted during the FY07 promotion board.

3.  The applicant provides copies of a memorandum from the Deputy Chief, Promotions, U.S. Army Human Resources Command (USAHRC), Alexandria, Virginia; MILPER [Military Personnel] Message Number 08-040; a memorandum from the Commander, U.S. Army Field Support Center, Fort Meade, Maryland, to the Army Board for Correction of Military Records (ABCMR); his memorandum to the ABCMR; a memorandum from the Inspector General (IG), U.S. Army Intelligence and Security Command, Fort Belvoir, Virginia and an IG Action Request; and his Officer Record Brief in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he was appointed in the United States Army Reserve, as a second lieutenant, effective 15 August 1998.  He was ordered to active duty and entered on active duty on 4 January 1999.  

2.  The applicant was promoted to captain effective 1 August 2002.

3.  The applicant submitted a memorandum dated 24 January 2008, from the Deputy Chief, Promotions, USAHRC, Alexandria, which informed the applicant and his chain of command that the applicant was considered for promotion with an erroneous understanding that his date of rank fell in the primary zone (PZ) criteria [officers with dates of rank for captain from 1 April 2001 to 31 March 2002].  His date of rank for captain of 1 August 2002 placed him in the below the zone (BZ) population [officers with dates of rank for captain from 1 April 2002 to 28 February 2003].  The USAHRC official also stated the applicant's file was erroneously considered and selected from the PZ and as a result, his name had been removed from the promotion standing list in accordance with Title 10, U.S. Code and Army Regulation 600-8-29 (Officer Promotions), paragraph 1-12b.  That action did not constitute a non-selection for promotion.  Accordingly, he would be considered by the FY08 promotion board that was scheduled to convene on 8 April 2008.

4.  The applicant submitted a copy of MILPER Message 08-040 that announced promotion numbers for March 2008.

5.  The applicant submitted a memorandum dated 8 May 2008, from the IG, Fort Belvoir, which acknowledged the U.S. Army Field Support Center, Fort Meade, Commander's request for IG action.  The IG concluded that the issue for which assistance was requested was not IG appropriate.  The IG recommended that individual officers, once selected for promotion, submit a request for a date of rank change to the ABCMR.  A copy of the IG Action Request was submitted by the applicant with his application.

6.  The applicant submitted a memorandum, dated 27 October 2008, from the Commander, U.S. Army Field Support Center, Fort Meade, which informed the ABCMR that three Great Skill (GS, a program for military intelligence personnel) promotion packets were submitted to the USAHRC with an attached letter stating that the three GS captains were eligible for BZ consideration.  The results of the FY07 Major Army Competitive Category Operations Support Board were released to USAHRC, validated, and approved by Congress.  All three GS officers were selected for promotion and assigned a sequence number.  On       25 January 2008, a memorandum was received from USAHRC stating that the three GS officer files were erroneously considered in the PZ and not the BZ, and that they were officially removed from the promotion list.  For that reason, the three GS officers never competed against their BZ year group.  USAHRC noticed the mistake after the official promotion publication and notification occurred.  All three GS officers were later selected by the FY08 Major Promotion Board.  The Commander requested all three officers' dates of rank be corrected to 1 March 2008, which reflects the original scheduled promotion date for the FY07 promotion board.

7.  The applicant submitted a memorandum, dated 27 October 2008, explaining to the ABCMR that his date of rank for captain was 1 August 2002, which placed him in the BZ population for the FY07 Major Army Operations Promotion Selection Board.  His promotion packet was submitted to USAHRC with an attached memorandum stating that he was eligible for BZ consideration.  The results of the FY07 Major Army Operations Promotion Selection Board were released to USAHRC, validated, and approved by Congress.  In August 2007, he was notified by his chain of command of his selection for promotion to major.  He was given a BZ sequence number of 391.  His promotion to major, by sequence number (sequence numbers 386 through 431) was scheduled for 1 March 2008.

8.  The applicant also stated, in effect, that a memorandum, dated 24 January 2008, stated that three officers, including himself, would not be promoted as scheduled due to erroneous consideration in the PZ and not BZ.  In April 2008, an IG action request was filed by his program office.  The IG recommended that since he had been selected for promotion, he should submit a request for a date of rank change to the ABCMR.  He was selected for promotion to major through a valid Army Promotion Board held in April 2007 in accordance with Army Regulation 600-8-29.  He was given a valid sequence number of 391, which was called on 1 March 2008 through a U.S. Army MILPER message, for promotion.  He feels he was unfairly kept from being promoted BZ to major, even though he was selected in accordance with Army Regulations.

9.  The applicant was promoted to major effective 1 December 2008.

10.  In the processing of this case an advisory opinion, dated 26 February 2009, was obtained from the Chief, Special Actions, DA Promotions Branch, USAHRC, St. Louis, Missouri, stated that the applicant was requesting his date of rank for major be adjusted to 1 March 2008, the original scheduled approval date for the FY07 promotion board.  The USAHRC official recommended denial of the applicant's request.  He stated that coordination was obtained by the DA Promotions Office in Alexandria.  Based on their reply the following was determined:  A review of the applicant's records indicated he was considered and selected by the FY07 Major Army Force Sustainment Promotion Selection Board. The applicant was considered for promotion under the understanding that his date of rank fell in the PZ criteria, which considered officers with dates of rank for captain from 1 April 2001 to 31 March 2002.  The applicant's date of rank for captain was 1 August 2002 which placed him in the BZ population which considered officers with dates of rank for captain from 1 April 2002 to 28 February 2003. 
11.  The USAHRC official also stated that the applicant's file was erroneously considered in the PZ and as a result his name was removed from the promotion 
standing list, in accordance with Title 10, U.S. Code and Army Regulation
600-8-29, paragraph 1-12b.  That action did not constitute a non-selection for promotion.  In accordance with Army Regulation 600-8-29, dated 25 February 2005, paragraph 7-3, an officer would not be considered or reconsidered for promotion by a special selection board when the consideration in question involved an officer below the promotion zone.

12.  The advisory opinion was forwarded to the applicant on 26 February 2009 for information and to provide him the opportunity to submit a rebuttal.  He did not respond.

13.  Army Regulation 600-8-29, paragraph 1-12b specifies that the names of those officers recommended and approved for promotion are placed, in order of their seniority on the active duty list, on promotion lists published by USAHRC.  The name of any officer erroneously considered and selected for promotion will be administratively deleted from the promotion list.  Officers erroneously considered and selected for promotion and deleted from the recommended list will not be considered to have failed selection for promotion.  

14.  Army Regulation 600-8-29, paragraph 1-7 also specifies that officers selected for promotion from BZ will be promoted following all officers on their promotion list who were selected from the promotion zone and above the zone, but before all officers on the subsequent promotion list.  The regulation further specifies that special selection boards will not consider an officer for BZ promotions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his date of rank should be corrected to show that he was promoted to major 1 March 2008 was carefully considered;  however, the applicant was considered as if his date of rank for captain fell into the PZ criteria for the FY07 promotion board.  The applicant and his command were notified of the erroneous consideration in the PZ and not the BZ.  As a result, his name along with the names of two other officers was removed from the promotion standing list.  The applicant was considered and selected for promotion by the FY08 promotion board and promoted to major effective 
1 December 2008. 

2.  The evidence of record shows the applicant's date of rank for captain placed him in the BZ population for promotion consideration.  While he should have been considered for promotion in the BZ population there is no basis to conclude that he would have been selected for promotion under the criteria used for those individuals considered in the BZ.  A special selection board is not an option for BZ considerations.

3.  The applicant's name was appropriately removed from the FY07 promotion standing list and he is not entitled to promotion to major effective 1 March 2008, based on that selection.  The evidence does not show, and the applicant has not satisfactorily shown, that he was unjustly denied an earlier date of rank for major. Therefore, it is concluded that the applicant was promoted to major on the earliest date he was eligible and in a timely manner and he has not shown otherwise.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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.



      ___________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)                                         AR20080018275



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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