IN THE CASE OF:	  

		BOARD DATE:	  5 January 2010

		DOCKET NUMBER:  AR20090000208 


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, to have the packet he submitted for promotion be considered by the Reserve Position Vacancy Board (PVB) in March 2009 and to extend his mandatory retirement date.

2.  The applicant states, in effect, that the promotion packet he submitted was mishandled by his human resource chain of command and as a result any opportunity he had to be promoted to the rank of colonel was ruined.  He continues that he would have been the only one considered for this position which would almost have guaranteed him the promotion.  He also states that the regulation governing mandatory retirements for medical service officers is discriminatory because it only targets "70" series officers and that he should be able to remain beyond his current mandatory retirement date.

3.  The applicant provides a self-authored letter, a series of emails, and a letter from the United States Army Reserve Command, Deputy Chief of Staff, G1 to support his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned and entered the active Army on 12 January 1981 in area of concentration (AOC) 67B (Field Medical Assistant).  On 1 July 1992, he was separated from the active component for being twice non-selected for promotion to the grade of major.


2.  On 1 July 1992, the applicant was appointed as a Medical Service Corps Reserve commissioned officer in the United States Army Reserve (USAR).  On 15 March 2000, the applicant attained the rank of lieutenant colonel (LTC).

3.  The applicant's record contains a memorandum from the United States Army Reserve Personnel Command, dated 7 September 2006, which notified the applicant that he was not selected for promotion to the grade of colonel by the Reserve Components Selection Board that convened on 2 May 2006.

4.  The applicant's record is void of any documentation to show that the Secretary of the Army (SA) determined the applicant to be the only qualified officer available to the fill a position vacancy within his unit.

5.  An advisory opinion was obtained on 4 August 2009 in the processing of this case.  The Chief of Special Actions Branch, Department of the Army Promotions, U.S. Army Human Resources Command (HRC)-St.Louis, recommended denial of the applicant's request.  He states that the applicant was considered but non-selected for promotion to colonel by the 2003 through 2007 Department of the Army Reserve Components AMEDD Selection Boards.  By regulation, officers who failed selection by a mandatory promotion board are not eligible for promotion consideration by a PVB.  Further, special boards are for officers considered by, or omitted from, mandatory boards and not position vacancy boards.

6.  An additional advisory opinion obtained on 24 September 2009, the Transition and Separations Branch, HRC-St. Louis, states that the applicant's specialty is not eligible for retention beyond the MRD provided for in the provisions of Title 10, U.S. Code, section 14703.  The advisory opinion further states that this provision of law specifically excludes the Medical Services Branch except for opticians or podiatrists.  The advisory opinion further makes the distinction that the applicant is ineligible for retention beyond his MRD because he is not in a clinical specialty.

7.  The applicant was provided a copy of each advisory opinion and the opportunity to make comments to the advisory opinions received on his behalf.  However, there is no evidence to show the applicant ever provided any comments.

8.  The applicant provides several email messages which essentially document a discussion between a human resources specialist for the Army Reserve-Medical Command (AR-MEDCOM) and a human resources assistant for HRC-St. Louis.  During the exchange of emails, AR-MEDCOM, on 28 August 2008, is attempting to add an officer's (presumed to be the applicant) promotion packet which they just received for a September 2008 PVB.  The request was denied by HRC, St. Louis for being submitted too late.  The exchange further discusses the confusion between AR-MEDCOM and HRC St. Louis regarding whether a position vacancy announcement is required 30 days prior to the PVB or whether the PVB announcement just needs to be open for 30 days.

9.  Army Regulation 135-155 (Army National Guard and U.S. Army Reserve Promotion of Commissioned Officers and Warrant Officer Other than General Officers) prescribes the policies and procedures for the promotion of Reserve Component officers.  The regulation states the USAR unit position vacancy promotion system is designed to promote officers to fill vacancies in USAR units that cannot be filled by local commanders with qualified officers of the authorized grade.  Occasionally, assignments cannot be made from local resources (officers assigned to units and other local non-unit officers on the Reserve Active Status List).  In this event, the commander of the unit experiencing the position vacancy will send to the appropriate area commander the names of all USAR unit officers in the next lower grade who meet promotion consideration/eligibility requirements.  Promotion to fill authorized valid position vacancies may be filled through promotion of the best-qualified and geographically available officer to the grades of captain through colonel.  All officers in the next lower grade must have met the minimum time in grade for promotion to the next higher grade and be geographically available to serve in the position for which considered.

10.  Army Regulation 135-155 also states that the unit commander will initiate position vacancy promotion procedures and forward a memorandum listing all unit officers eligible for promotion consideration.  The memorandum will include the following information:  rank of position, branch, area of concentration, position title, unit, unit identification code, location of unit, table of organization and equipment/table of distribution and allowances number, paragraph/line number, and date of position vacancy.  An officer is not eligible for consideration if he or she was not approved for the position per Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers).

11.  Army Regulation 135-155 further states that officers failed of selection by a mandatory promotion board to the grade of captain through lieutenant colonel will not be considered for position vacancy promotion.  Promotion to the grade of colonel will not be considered unless the Secretary of the Army finds that the officer is the only qualified officer available to fill the vacancy.  The Secretary of the Army may not delegate this authority.

12.  Army Regulation 135-155 also specifies that special selection boards (SSBs) will convene and consider commissioned officers who were erroneously not considered and reconsider commissioned officers who were considered but not selected by mandatory promotion boards.  The regulation does not provide for promotion consideration by an SSB for erroneous non-consideration by a PVB, only by a mandatory promotion board.

13.  Title 10, U.S. Code, section 14507, Removal from the reserve active-status list for years of service, states that for lieutenant colonels, unless continued on the reserve active-status list or retained under other provisions of law, and who are not on a list of officers recommended for promotion to the next higher grade, shall (if not earlier removed from the reserve active-status list) be removed from the active-status list on the first day of the month after the month in which the officer completes 28 years of commissioned service.

14.  Title 10, U.S. Code, section 14703, Authority to retain chaplains and officers in medical specialties until specified age, states that the Secretary of the Army may, with the officer’s consent, retain in an active status any reserve officer assigned to the Medical Corps, the Dental Corps, the Veterinary Corps, the Medical Services Corps (if the officer has been designated as an allied health officer or biomedical sciences officer in that Corps), the Optometry Section of the Medical Services Corps, the Chaplains, the Army Nurse Corps, or the Army Medical Specialists Corps.  An officer may not be retained in an active status under this section later than the date on which the officer becomes 68 years of age.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his PVB packet was mishandled and as a result eliminated any opportunity he had of being promoted to colonel.  However, by regulation, non-selection by a mandatory promotion board to the grade of colonel without an exception from the SA disqualifies an officer from consideration by a PVB.  Therefore, given the evidence of record confirms that the applicant was non-selected for promotion to colonel by at least one mandatory promotion board and the record contained no evidence of an SA exception, the requested relief cannot be granted.

2.  Further, based on the foregoing, the applicant's claim that his promotion packet for the PVB was mishandled by his human resources chain of command was considered, but determined not to have harmed the applicant's chances for promotion by a board for which he was not otherwise eligible.  Additionally, given regulations do not provide for promotion consideration by an SSB for individuals erroneously not considered for promotion by a PVB, this remedy would also be inappropriate in this case.

3.  By law, officers in the rank of lieutenant colonel may not serve in a reserve active status for more than 28 years of commissioned service unless an exception is granted.  However, in this case, the applicant did not possess a specialty for which an exception to the existing statue was possible.  As a result, it is determined that the applicant's MRD was properly established and he was separated accordingly.

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)                                         AR20090000208



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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