IN THE CASE OF:	  

		BOARD DATE:	    8 December 2009

		DOCKET NUMBER:  AR20090001682 


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 that her date of rank (DOR) for promotion to the rank of lieutenant colonel (LTC) be changed from 21 November 2008 to 21 August 2008. 

2.  The applicant states, in effect, that she was ordered to active duty in January 2005 and was cross-leveled from the 4005th Army Hospital in Lubbock, Texas to the 5501st Army Hospital at Fort Sam Houston, Texas, initially without her knowledge.  She goes on to state that in November 2006, she inquired of the unit administrator as to how her mobilization would affect her promotion and was informed that she should not worry about not having a slot and that if she was selected for promotion or was released from active duty, they would help her locate a slot.  When she was notified that she was eligible for consideration for promotion she again inquired of the unit administrator regarding an LTC position in January 2008 and was again advised that she should wait until she was selected to find a position.  However, once she was notified that she had been selected (18 September 2008) and that the board results were approved on 
21 August 2008, it took until 21 November 2008 before action was taken to promote her primarily because the unit did not know how to process the request for someone who was mobilized.  She further states that because officials did not know how to handle her promotion it was delayed 3 months later than it should have been through no fault of her own and thus she is being penalized for being mobilized.  

3.  The applicant provides copies of email messages regarding her promotion, a copy of the promotion selection list, and a copy of her Promotion Qualification Statement (AHRC Form 56-R).  

CONSIDERATION OF EVIDENCE:

1.  After having prior enlisted service, the applicant was commissioned as a United States Army Reserve (USAR) second lieutenant in the Medical Services Corps as a social worker on 23 July 1993.  She continued to serve in the USAR and was promoted to the rank of major on 12 July 2003.

2.  She was ordered to active duty on 4 January 2005 and has remained on active duty since that date.  She was transferred to the 5501st United States Army Hospital in San Antonio, Texas and was cross-leveled to a derivative unit identification code (UIC) unit and is serving with the United States Army Medical Command in San Antonio.  She was issued her 20-year letter on 27 July 2006.

3.  In January 2008, the applicant emailed the unit administrator to determine if she was in an LTC slot and was informed that there were no LTC slots in her specialty in the unit.  She was advised that she would need to find an LTC slot if she was selected for promotion.

4.  In February 2008, the applicant contacted officials at the Human Resources Command - St. Louis (HRC-STL) requesting information needed to ensure that she was in a promotable status.  She was advised, in effect, that she needed to find a vacant LTC slot if she was selected in order to be promoted.

5.  On 18 September 2008, the Fiscal Year 2008 LTC Reserve Component Army Medical Department Selection Board Results were released.  The results of that board were approved on 20 August 2008 and the applicant was selected for promotion and she emailed the list to the unit administrator and requested her assistance in effecting the promotion.

6.  It was not until 31 October 2008 that officials at the Army Reserve Medical Command interceded to locate a Reserve Component LTC vacancy for the applicant.

7.  On 21 November 2008, the applicant was assigned to a vacant LTC position in the 330th Medical Brigade and on 12 December 2008 orders were published that promoted the applicant to the rank of LTC effective 21 November 2008 with a DOR of 21 November 2008.

8.  On 27 January 2009, the applicant was advised to apply to this Board for an adjustment to her DOR.

9.  In the processing of this case a staff advisory opinion was obtained from the HRC-STL Chief, Special Actions Branch, Department of the Army Promotions which recommends that the applicant's request be disapproved because she was promoted when she was assigned to a valid vacant LTC position in accordance with Army Regulation 135-155.

10.  The advisory opinion was forwarded to the applicant and she responded to the effect that she believes that she is being penalized for being mobilized because her fellow reservists who are not on active duty are being promoted on time and are not being cross-leveled to derivative UICs.  She also contends that in fairness, the mobilized Soldier should be promoted on the date the list is approved and then be required to locate an LTC slot within 6 months in order to maintain the rank of LTC.  She goes on to state that the confusion over the policy in regard to promoting a mobilized reservist and difficulty in figuring out how to process her promotion unjustly delayed her promotion until 21 November 2008.  She also states that had she known that she had to be in a Reserve LTC slot prior to the promotion selection, she would have pursued a Reserve LTC slot in February 2008; however, because she was serving in an active duty mobilization slot, she assumed that she was in a proper position to be promoted.

11.  Title 10 of the United States Code, section 14304 (10 USC 14304) provides the legal authority for eligibility for consideration for promotion based on maximum years in grade (MYIG) provisions of the law.  Paragraph (a) states, in pertinent part, that officers shall be placed in the promotion zone and shall be considered for promotion to the next higher grade by a promotion board convened under section 14101(a) of this title, far enough in advance of completing the MYIG so that, if the officer is recommended for promotion, the promotion may be effective on or before the date on which the officer will complete those years of service.  If the officer occupies a position equal to or higher than the grade to which they are being promoted, they may be promoted before they reach their MYIG.  The maximum years in grade for promotion from major to LTC is 7 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that her promotion was delayed because she is being penalized for being mobilized has been noted and appears to lack merit.  Had the applicant not been mobilized she would still have had to meet the same requirement of being in an LTC position in order to accept her promotion.

2.  The fact that she was cross-leveled into a unit that did not have an LTC position that she could occupy for promotion purposes has nothing to do with the issue at hand.  She was informed on at least two occasions 6 months or more in advance that she had to find a vacant LTC position in order to accept a promotion to LTC and it appears that she did not attempt to do so.

3.  Had the applicant remained in her original unit and had not mobilized, she would have had essentially the same responsibility for finding a vacant LTC position.  While she has provided evidence to show that she inquired into the issue, she has not provided sufficient evidence to show that she attempted to locate a valid vacancy until after the promotion selection list was released.

4.  Accordingly, she was properly promoted when a vacant LTC was located and she was assigned to that position on 21 November 2008.  Therefore, absent evidence to show that she was assigned to a valid LTC position prior to that date, there appears to be no basis to grant her request.

5.  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 that requirement.

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)                                         AR20090001682





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ABCMR Record of Proceedings (cont)                                         AR20090001682



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