IN THE CASE OF:	  

		BOARD DATE:	  17 November 2009

		DOCKET NUMBER:  AR20090002386 


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 her United States Navy Reserve (USNR) selection for promotion to 0-4 be transferred to the United States Army Reserve (USAR) and she be promoted accordingly.  

2.  The applicant states, in effect, that she was selected for promotion to 0-4 in the USNR by a promotion selection board that convened in May 2007, she transferred from the USNR to the USAR on 20 June 2007, and the USNR promotion list was approved and released in July 2007.  She states that she was selected for promotion in the USNR, but did not know it, and was processed into the USAR as an 0-3 and not subsequently promoted.  She claims that her promotion to 0-4 should have been transferred from the USNR to the USAR given the promotion selection board that selected her while she was still in the USNR even though it did not release its results until after she entered the USAR. She concludes by indicating she should have been promoted to 0-4 in fiscal year (FY) 2008.  

3.  The applicant provides the following documents in support of her application:  USN Message 058/07, Subject:  "FY-08 NAVY RESERVE LIEUTENANT COMMANDER LINE SELECTION FM SECNAV WASHINGTON DC TO ALNAV"; USAR Appointment Letter, dated 19 June 2007; DA Form 71 (Oath of Office), dated 20 June 2007; USNR Appointment Letter, dated 14 April 1998; USNR Appointment Oath of Office, dated 1 May 1998; DD Forms 214 (Certificate of Release or Discharge from Active Duty), dated in 2004, 2006 and 2008; and Honorable Discharge Certificate Letter, dated 10 September 2007. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that she served in the USNR from 1 May 1998 through 19 June 2007, at which time she was honorably discharged from the USNR in order to enter the USAR.  On 20 June 2007, she was appointed in the USAR, in the rank and pay grade of captain/0-3 (CPT/0-3).  

2.  During the processing of this case, an advisory opinion was obtained from the Chief, Special Actions, Department of the Army (DA) Promotions, United States Army Human Resources Command, St. Louis, Missouri (HRC-St. Louis).  This USAR promotion official indicates that the applicant was separated from the USNR on 19 June 2007, as a lieutenant, 0-3 and reappointed in her current grade as a CPT/0-3 in the USAR on 20 June 2007.  He states that the applicant was on the list of officers selected for promotion to the next higher grade in the USNR, but was separated from the USNR prior to the approval of that selection board's promotion list.  The approved release of the selection board by the Navy was in July 2007; therefore, he states the applicant was not eligible to transfer the selection to the USAR.  

3.  The HRC-St. Louis promotion official further indicates the applicant was transferred to a Troop Program Unit (TPU) on 13 September 2007, her date of rank to CPT/0-3 was adjusted to 1 May 2002, her original date of rank to 0-3 in the USNR, and she was mobilized for Operation Iraqi Freedom on 1 October 2007, for a period of 400 days until the expiration of her term of service on 
2 November 2008.  The applicant was considered and not selected for promotion to major/0-4 by the 2008 Major DA Reserve Component Selection Board (RCSB) that convened on 10 March 2008.  The reason for her non-selection was her failure to meet the required military education requirement prior to the convening date of the RCSB.  

4.  On 13 August 2009, the applicant was provided a copy of the HRC-St. Louis advisory opinion in order to have the opportunity to respond to or rebut its contents.  To date, she has failed to reply.  

5.  Title 10 of the United States Code, Section 12206 (10 USC 12026) provides guidance on the appointment of former commissioned officers.  It states, in pertinent part, that a member who is a former commissioned officer may, if otherwise qualified, be appointed a Reserve commissioned and placed on the Reserve Active Status List (RASL) in the grade equivalent to the permanent regular or reserve grade, and in the same competitive category, in which the person previously served satisfactorily on active duty or in an active status. 

6.  Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army) prescribes policy and procedures for the appointment of commissioned and warrant officers in the Army National Guard of the United States (ARNGUS) and the USAR.  Chapter 3 provides appointment guidance and paragraph 3-7a (1) (c) states that former commissioned officers of an Armed Force other then Army approved for inter-service transfer may be appointed in the Reserve of the Army.  These officers will be given the same grade and date of rank as held in the former armed force.  

7.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the ARNGUS and of commissioned and warrant officers (WO) of the USAR.  Chapter 2 prescribes promotion eligibility and qualification requirements.  Paragraph 2-8 outlines military education requirements and states, in pertinent part, that in order to be promoted to major/0-4, an officer must complete any officer advanced course (OAC).  

8.  Chapter 4 of the promotion regulation contains guidance on processing selection board recommendations and states, in pertinent part, that the names of officers recommended for promotion may be disseminated, on or anytime after, the transmittal of the report to the President for approval.  Promotion lists are subject to additional administrative review and are not to be construed as promotion orders.  Accordingly, individuals will not assume that the structure of the list or the presence of a name on a list constitutes a firm forecast for promotion.  Paragraph 4-15 states, in pertinent part, that the effective date of promotion for commissioned officers may not precede the date on which the promotion memorandum is issued and the promotion memorandum will not be issued before the date the promotion board results are approved.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she should have been promoted to 04 in FY 2008 based on her selection in the USNR was carefully considered.  However, by regulation, selection and placement on a list does not constitute an approved promotion.  An officer may only be promoted after the promotion list is approved by the President. 


2.  In this case, the USNR promotion list the applicant was on was not released/approved prior to her transfer to the USAR and therefore, in accordance with the governing law and regulation, she was properly transferred in the grade and with the date of rank she held on the transfer date of 20 June 2007, which was CPT/0-3.  Absent any evidence that the promotion list the applicant was on was approved/released prior to 20 June 2007, the date of her transfer to the USAR, there is an insufficient evidentiary basis to support granting the requested relief. 

3.  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 or that would support amendment of the original Board decision in this case. 

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)                                         AR20090002386



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090002386



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1