DOCKET NUMBER:  AR20080020101 


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, adjustment to his date of rank for colonel to reflect an earlier date.

2.  The applicant states, in effect, that he should have been promoted to colonel soon after the 2007 Army Medical Department (AMEDD) board results were released.  His promotion was delayed over 7 months due to no fault of his own. He also states that he received erroneous information from his Reserve Unit Strength Management Officer.  This officer persisted in the mistaken belief that he could not be promoted while in a Warrior Transition Battalion.  Neither he nor the unit G1 would research the situation or make any other attempt to obtain a promotion order.  Two general officers were involved in his pursuit of a promotion order along with many other civilians as well as Army personnel.

3.  The applicant further states that he is a mobilized Army Reserve Soldier currently assigned to the Warrior Transition Battalion, Fort Sam Houston, Texas, undergoing a medical board evaluation.  He was selected for promotion to colonel by the 2007 AMEDD Reserve Components Selection Board (RCSB) that was released on 18 December 2007.  He also states, in effect, that he inquired how to obtain a promotion order under his unique circumstances.  He was provided erroneous information stating that he could not be promoted.  He was advised and obtained a list of 14 open colonel Army Nurse (AN) positions 

throughout the United States Army Reserve (USAR).  He selected a nearby medical unit, was accepted, and assigned to the unit's AN colonel position.  His date of rank was established as 2 August 2008, more than 7 months after his selection.

4.  In support of his application, the applicant provides copies of the 2007 AMEDD RCSB results, electronic mail correspondence pertaining to available open colonel positions, his Promotion Qualification Statement, and his promotion orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he was appointed in the USAR, AN Corps, as a first lieutenant, effective 15 August 1986, with prior Regular Army enlisted service.  He was promoted to lieutenant colonel effective 23 October 2001.  

2.  The applicant was ordered to active duty in support of Operation Iraqi Freedom and entered active duty on 6 May 2006.  On 1 August 2007, he was retained on active duty to undergo medical retention processing for completion of medical care and treatment.  He is apparently still on active duty as of 19 May 2009.

3.  The applicant was considered and selected for promotion to colonel by the 2007 AMEDD RCSB.  The board results were approved on 6 December and released on 18 December 2007.

4.  The applicant submits copies of electronic mail correspondence between himself and Reserve units regarding open available colonel positions.  His Promotion Qualification Statement shows he was assigned to a colonel's position on 2 August 2008.  He was issued orders promoting him to colonel with an effective date and date of rank of 2 August 2008.

5.  In an advisory opinion, dated 11 March 2009, the Chief, Special Actions, DA Promotions, Human Resources Command (HRC), St. Louis, Missouri, stated that the applicant was selected for promotion to colonel by the 2007 AMEDD RCSB.  The board was approved on 6 December 2007 and the Senate confirmed the board results on 7 February 2008.  He was promoted with a date of rank of 2 August 2008, the date of his assignment to the higher graded position.  In accordance with Army Regulation 135-155 (Promotion of Commissioned Officers 

and Warrant Officers Other Than General Officers), paragraph 4-21, a unit officer would have a promotion date and effective date no earlier that the date the board is approved or Senate confirmed, providing the officer is assigned to a position in the higher grade.  When the board approval or Senate confirmation is before the individual's assignment to the higher graded position, the date of promotion and effective date will be the assignment date.  

6.  The HRC official also stated that the Promotion Qualification Statement received verified the applicant was assigned to a higher graded position on 2 August 2008.  His assignment date is after the board's approval and Senate confirmation date; therefore, 2 August 2008 is his correct date of rank.  In view of the facts presented, it was recommended the applicant's request be disapproved.

7.  The advisory opinion was forwarded to the applicant for acknowledgement and/or rebuttal on 23 March 2009.  He did not respond.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is not entitled to adjustment to his date of rank for colonel to an earlier date.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The applicant's contentions have been noted; however, the evidence shows the applicant was selected for promotion to colonel by the 2007 AMEDD RCSB that was approved on 6 December 2007 and Senate confirmed on 7 February 2008.  At either time he was not assigned to a higher graded position.  He was assigned to a colonel's position effective 2 August 2008 and appropriately promoted to colonel on that date.  

3.  The documentation submitted by the applicant does not show he was assigned to a valid colonel's position prior to 2 August 2008.  He was properly promoted when he met all requirements for promotion and he has not shown otherwise.

4.  The applicant's contentions have been carefully considered.  It is understood that he was in a Warrior Transition Battalion where it would be highly unlikely he could be assigned to a position in the higher grade.  Regrettably, there is no regulatory guidance for such situations.  The regulation still requires assignment to the higher graded position, which the applicant was finally able to obtain in August 2008.

5.  Regrettably, 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)                                         AR20080020101



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ABCMR Record of Proceedings (cont)                                         AR20080020101



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