IN THE CASE OF:	

		BOARD DATE:	       9 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090001688 


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 his date of rank (DOR) for promotion to the rank of lieutenant colonel (LTC) be adjusted to coincide with his DOR to major (MAJ) on 12 March 1998.  In effect, he requests that his DOR be changed from 21 December 2006 to 2 April 2005.

2.  The applicant states that he missed his LTC promotion in 2005 due to being accessioned into the active component (AC) on 1 April 2003.  He goes on to state that his being accessioned into the AC took 5 years of his DOR away.  He also states that he refused Regular Army (RA) integration and returned to a U.S. Army Reserve (USAR) Troop Program Unit (TPU) after completion of his active duty orders; however, his promotion to the rank of LTC was behind his peer group.  He further states that he was promoted to the rank of LTC a year later than he would have been promoted had he not responded to the Army's needs; however, it also invalidates his eligibility for a unit vacancy promotion to the rank of colonel (COL), where he serves as a command chaplain.

3.  The applicant provides a copy of U.S. Total Army Personnel Command, Alexandria, VA, Orders Number 160-003, dated 9 June 2003, promoting him to MAJ, effective 1 April 2003; a copy of U.S. Total Army Personnel Command, St. Louis, MO, Orders A-03-390836, ordering him to active duty, effective 1 April 2003; a copy of U.S. Army Combined Arms Support Command, Fort Lee, VA, Orders 123-0503, dated 3 May 2006, assigning him to the USAR Control Group (Reinforcement); a copy of U.S. Army Human Resources Command, St. Louis, 


Orders B-01-700760, promoting him to LTC, with an effective date and DOR of
21 December 2006;  a copy of his DA Form 160-R (Application for Active Duty), dated 14 November 2002; a copy of his DA Form 61 (Application for Appointment), dated 14 November 2002; a copy of his DD Form 2088 (Certificate of Ecclesiastical Endorsement), dated 22 October 2002; and a copy of Office of The Adjutant General, Virginia National Guard, Richmond, VA, Orders 072-064, dated 13 March 1998, promoting him to the rank of MAJ in the Virginia Army National Guard (VAARNG), effective 12 March 1998.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 16 June 1949 and served in the VAARNG in an enlisted status from 17 March 1969 to 18 October 1988.  He was commissioned as a first lieutenant (chaplain) in the VAARNG on 19 October 1988.  He was advanced through the ranks to MAJ on 12 March 1998; however, he was not granted Federal recognition until 3 April 1998, which became his DOR.  In November 1999, a 20-year letter was dispatched to the applicant advising him that he was eligible for retired pay at age 60 (16 June 2009).

2.  On 28 March 2001, he transferred to the USAR and has remained a USAR officer.

3.  The applicant was ordered to active duty on 1 July 2002 in support of Operation Enduring Freedom and he served in Qatar from 23 July 2002 to 14 February 2003.

4.  Meanwhile, on 14 November 2002, the applicant submitted a DA Form
160-R.  He was honorably released from active duty (REFRAD) on 31 March 2003 and he was transferred to USAR TPU in Florida.

5.  On 1 April 2003, he was ordered to active duty as an obligated volunteer officer for 3 years and he was given an adjusted DOR to MAJ of 1 April 2003.  His active duty orders specified that he was ordered to active duty in the rank of MAJ with an adjusted date of rank (ADOR) equal to entrance on active duty orders.  He was assigned to Fort Lee and he remained there until he was REFRAD on 17 July 2006 and transferred to a TPU in Florida.

6.  On 22 January 2007, he was promoted to the rank of LTC with a DOR of 21 December 2006, the date the board was approved.


7.  In the processing of this case, on 17 March 2009, a staff advisory opinion was obtained from the Human Resources Command, St. Louis (HRC-STL), which explains that the applicant's DOR as a Reserve Component (RC) MAJ was
3 April 1998, which made him eligible for promotion to the rank of LTC on 2 April 2005, based on the 7-year time in grade requirement.  However, the applicant was ordered to active duty for a 3-year commitment on 1 April 2003, which became his DOR as a MAJ in the AC.  Accordingly, he was not eligible for consideration by any Reserve Selection Boards.  Officials at HRC-STL go on to state that once the applicant was REFRAD and reverted back to the USAR, he was considered and selected by the 2006 LTC RC Selection Board (RCSB), which considered him with a DOR of 3 April 1998.  He was promoted to the rank of LTC on 22 January 2007, with a DOR of 21 December 2006, the approval date of the board.  The advisory official also opined that the earliest date the applicant could have been promoted is the date after his REFRAD; however, the board would have to direct it and he would still not have enough time in grade for a promotion vacancy board.  The HRC-STL officials provide no explanation as to why the board would approve a DOR effective the date after his REFRAD and before consideration by a board.

8.  The advisory opinion was provided to the applicant for information and to allow the applicant the opportunity to submit comments or a rebuttal.  He responded to the effect that he concurred with the recommendation of the
HRC-STL officials that his DOR be adjusted to 18 July 2006, the day following his REFRAD.

9.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), provides, in pertinent part, that a unit officer will have a promotion date and effective date no earlier than the date the board is approved, provided he or she is assigned to a position in a higher grade.  When the approval date is before assignment to the higher grade, the effective date and date of promotion will be the assignment date.

10.  Title 10, U.S. Code, section 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.  This provision of the law establishes the MYIG for MAJ going to LTC as 7 years.

11.  Paragraph (b) of Title 10, U.S. Code, section 14304 states, in effect, that an RC officer who is recommended for promotion to the next higher grade by a selection board the first time they are considered for promotion and who is placed on an approved promotion list shall (if not promoted sooner or removed from that list by the President or by reason of declination) be promoted, without regard to the existence of a vacancy, on the date on which the officer completes the MYIG specified in this law.

12.  A separate provision of the law, Title 10, U.S. Code, section 12203 establishes, in effect, that RC officers on a promotion list will be promoted when the report of the selection board is approved by the President.  Therefore, under this provision of the law, the promotion effective date is the date the list is signed by the President.  It is also codified in the law that, in effect, if an RC officer’s promotion is adjusted to reflect a date earlier than the actual effective date of promotion, for example a DOR adjustment based on MYIG, this does not entitle them to additional pay or allowances.

DISCUSSION AND CONCLUSIONS:

1.  While it is indeed unfortunate that the applicant lost traction as a reservist by serving in the AC of the Army, by virtue of the fact that he could not be considered for an RC promotion in 2005 while he was on active duty, the law and regulations governing the promotion of RC and AC officers did not change during the period in question.

2.  The applicant's orders specified that his DOR would be adjusted to the date he entered active duty, which directly affected his promotion eligibility date to the rank of LTC and placed him in a different peer group while in the AC.  Accordingly, the time for him to question the issue of his DOR and promotion eligibility was upon receipt of his orders and prior to entry on active duty.

3.  Based on his adjusted DOR to major while serving in the AC, he was not eligible for consideration for promotion to the rank of LTC by either the AC boards or the RCSB.

4.  However, he was considered and selected by the first LTC RCSB that convened after his REFRAD and he was promoted effective the date the board 

was approved.  Accordingly, he was promoted in accordance with the applicable law and regulations in effect at the time.

5.  The advisory opinion of the HRC-STL which suggests that the applicant's DOR could be adjusted by the Board to give him a DOR effective the day after 
his REFRAD has been noted; however, there was no error or injustice in his case and to grant the applicant a DOR that would precede the review and approval by a duly constituted promotion selection board would be affording him a benefit that is not afforded to others in similar circumstances.

6.  Although on the surface it appears that it is unjust that the applicant's promotion consideration to the rank of LTC was delayed a year because he elected to serve in the AC of the Army, he voluntarily chose to compete with a different peer group when he volunteered for a 3-year obligated tour of duty.  While he may now regret that he made the decision to do so, that in itself does not constitute an error or injustice on the part of the Department. 

7.  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 requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X___  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.




2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.



      ___________XXX____________
               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)                                         AR20090001688



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090001688



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1