IN THE CASE OF:	

		BOARD DATE:	  28 April 2009

		DOCKET NUMBER:  AR20080019716


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 effective date of rank (DOR) to captain (CPT) be changed from 11 August 2002 to 1 July 1999 and that based on this correction his effective DOR to major (MAJ) be adjusted to 23 June 2002. 

2.  The applicant states, in effect, that Title 10, United States Code, Section 14304 (10 USC 14304) of the Reserve Officer Personnel Management Act (ROPMA) requires that an officer recommended for promotion by a selection board the first time while in or above the promotion zone and who is placed on an approved promotion list be promoted no later than their maximum time in grade for their present grade.  He believes ROPMA forms the basis for the correction he is seeking.  He also states he understands that if the correction he is seeking is made, it would result in his records being immediately placed before a selection board for consideration for promotion to lieutenant colonel (LTC) and that he is educationally and branch qualified for this promotion.  

3.  The applicant provides the following documents in support of his application:  Self-Authored Statement; US Total Army Personnel Command (PERSCOM), Alexandria, Virginia Orders Number 162-050, dated 11 June 1999; PERSCOM-St. Louis Memorandum, dated 17 December 2002; Army Human Resources Command, St. Louis (HRC-St. Louis) Orders Number B-07-705282, dated 
23 July 2007; DD Forms 214 (Certificates of Release or Discharge from Active Duty), dated 11 September 2008, 1 August 2006, 12 May 1999, and 
4 September 1991; and 88th Regional Support Command (RSC) Orders Number 256-29, dated 13 September 1999.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military record shows that after having prior active duty service in an enlisted status, he was commissioned a second lieutenant (2LT), on 12 May 1995, and remained on active duty in a commissioned officer status.  On 3 June 1997, he was promoted to first lieutenant (1LT).  

2.  On 12 May 1999, the applicant was honorably discharged from the Regular Army (RA), in the rank of 1LT, and was appointed in and transferred to a Troop Program Unit (TPU) of the United States Army Reserve (USAR) on that same date.  

3.  On 11 April 2000, the applicant transferred from his USAR TPU to the Individual Ready Reserve (IRR) where he served until returning to a TPU on 
13 December 2001.   

4.  On 17 December 2002, the applicant's promotion to CPT was authorized and announced in a PERSCOM-St. Louis Memorandum (ARPC-PSP-A) which directed his promotion to CPT, effective and with a DOR of 11 August 2002. 

5.  On 2 August 2004, the applicant was ordered to active duty in support of Operation Noble Eagle and Iraqi Freedom.  He served on active duty in that status until being honorably released from active duty (REFRAD) and returned to a USAR TPU on 1 August 2006.  

6.  On 2 June 2007, the applicant was ordered to active duty in support of Operation Iraqi Freedom, and on 13 June 2007, he was promoted to MAJ. 

7.  On 11 September 2008, the applicant was honorably REFRAD and returned to a USAR TPU.  

8.  During the processing of this case, an advisory opinion was obtained from the the HRC-St. Louis, Chief, Special Actions Branch, Office of Promotions, Reserve Components (RC).  This HRC-St. Louis promotion official stated that the applicant was REFRAD and transferred to the USAR on 12 May 1999, prior to his promotion eligibility date (PED).  The applicant was recommended for promotion to CPT by an active duty board with a PED of 1 July 1999.  He further states the applicant served in a USAR TPU through 11 April 2000 until he was 

transferred to the IRR, where he served through 13 December 2001, at which time he was transferred to a TPU, where he was promoted to CPT on 11 August 2002, the date of his assignment to the higher graded CPT position.  

9.  The HRC-St. Louis, Chief, Special Actions Branch, Office of Promotions, RC, further states that had the applicant been assigned to a higher graded position upon his 12 May 1999 discharge from the RA and transferred to the USAR he would have been eligible for promotion to CPT on his PED of 1 July 1999, or had he remained assigned to the IRR, he would have been eligible for and promoted to CPT on 2 June 2002, the date he met his five year time in grade requirement.  However, since he was not in a promotable position until 11 August 2002, he is not eligible for a DOR earlier than that date.  The official also states that had the applicant been promoted to CPT with the DOR of 1 July 1999, the 2005 Department of the Army (DA) RC Selection Board (RCSB) would have been the earliest date he would have become eligible for promotion consideration to MAJ and that if selected and promoted, his DOR would have been based on meeting all promotion requirements for the 2005 criteria.  Since the applicant was selected for promotion to MAJ by the 2007 DA RCSB, he is not eligible for promotion to LTC.  The official finally recommended denial of the applicant’s request.

10.  On 6 March 2009, a copy of the advisory opinion was forwarded to the applicant for his comments or rebuttal.  To date he has not responded.

11.  Army Regulation 600-8-29 prescribes policy and procedures for the promotion of active duty officers.  An officer who is on a promotion list and is removed from the active duty list prior to the effective date of promotion shall not be promoted from the ADL promotion list.  A subsequent return to the ADL does not warrant a return to promotion list status held prior to REFRAD. 

13.  Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve officers.  Table 2-1 shows that the maximum time in grade requirement for promotion to CPT is 5 years.  The regulation also stipulates that in order to be promoted, an officer assigned to a TPU must be assigned to a position authorized the higher grade.  

14.  Title 10, U. S. Code, section 14317(c), provides that an officer who is on the active-duty list and is on a promotion list and who, before being promoted is removed from the active-duty list and placed on the reserve active-status list of the same armed force and in the same competitive category, shall be placed on an appropriate promotion list.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an adjustment of his effective DOR of rank to CPT and MAJ and promotion consideration for LTC was carefully considered.  However, by regulation, an active duty officer who is on a promotion list and is removed from the active duty list prior to the effective date of promotion shall not be promoted from the active duty list.  

2.  The evidence of record clearly shows the applicant was discharged from the RA on 12 May 1999, prior to the 1 July 1999 active duty list effective date of his promotion to CPT.  As a result, his active duty promotion status was no longer applicable on his 1 July 1999 PED.  Upon his appointment in the USAR, he was assigned to a TPU, and it appears he was not assigned to a CPT's position.  When he transferred to the IRR almost one year later, in April 2000, he fell under USAR promotion provisions whereby 5 years time-in-grade was required prior to being eligible for promotion to CPT.  

3.  Prior to attaining 5 years time-in-grade, the applicant transferred back into a TPU, and he did not meet the RC promotion eligibility requirements until being assigned to a higher graded position on 11 August 2002.  As a result, as confirmed in the HRC-St. Louis advisory opinion, the applicant's promotion to CPT was accomplished in accordance with the governing law and regulation.  Absent any evidence of an error related to the promotion process, there is an insufficient evidentiary basis to support granting the requested relief for an adjustment of his DORs to CPT and MAJ nor consideration for promotion to LTC. 

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this 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)                                         AR20080019716



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080019716


2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1