IN THE CASE OF:	

		BOARD DATE:	1 December 2009  

		DOCKET NUMBER:  AR20090003746 


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 his date of rank (DOR) for captain be adjusted to 14 August 2000 and that he be promoted to major effective 
14 August  2007.

2.  The applicant states, in effect, that he was granted Federal recognition for promotion to first lieutenant on 14 August 1995 and that prior to that date he earned his bachelor degree and completed the Officer Basic Course.  He claims, by law, he was required to be promoted to captain no later than 14 August 2000 (five years time in grade) or released from the service.  He also states that based on the corrected DOR to captain he should have been promoted to major on or before 14 August 2007 or released from the service.  

3.  The applicant states that according to Army Regulation 135-155 and the Human Resources Command website, "Officers assigned to the Individual Ready Reserve are promoted on the date on which they complete the maximum years of service: five years for first lieutenants, and seven years for captains and majors."  He also points out that he achieved the required military and civilian education requirements plus the maximum times in grade. 

4.  The applicant provides a memorandum, dated 17 January 1997; promotion orders for first lieutenant; a DA Form 1059 (Service School Academic Evaluation Report); promotion orders; active duty orders; a Notification of Promotion Status, dated 26 March 2002; and amendment orders, dated 5 January 2009.



CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the Army National Guard, the applicant executed an oaths of office in the grade of second lieutenant in the Arizona Army National Guard and was granted temporary Federal recognition on 15 August 1992.  He was appointed a Reserve Commissioned Officer in the rank of second lieutenant on 15 August 1992.  

2.  The applicant was granted Federal recognition for promotion to first lieutenant effective 14 August 1995. 

3.  The applicant completed the Transportation Officer Advanced Course on 
28 June 1996.

4.  On 1 January 1998, the applicant was separated from the Army National Guard  and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  

5.  By memorandum dated 26 March 2002, the applicant was notified that he had been considered for promotion but was not selected by a Department of the Army (DA) Reserve Components Selection Board.  

6.  On 17 September 2002, the applicant was released from the USAR Control Group (Reinforcement) and assigned to a Troop Program Unit.
 
7.  The applicant was promoted to captain effective 10 February 2005.

8.  The applicant was ordered to active duty on 15 February 2009.

9.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Special Actions Branch, Department of the Army Promotions, U.S. Army Human Resources Command, St. Louis, Missouri.  The opinion points out the applicant was considered but non-selected for promotion to captain by the 2001 DA Reserve Components Selection Board and that his file included all of his pertinent documents when considered by the board.  The reasons for his non-selection are unknown because board deliberations are not a matter of record.  The applicant was subsequently selected for promotion to captain by the 2002 selection board that convened on 4 November 2002 and was approved on 
17 March 2003.  

10.  The opinion points out that in accordance with Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant officers Other Than General Officers), paragraph 4-21, an officer is promoted after selection if all qualifications for promotion are met and that prior to promotion an officer who has been recommended for promotion must meet the promotion requirements as outlined in paragraph 4-11a of the regulation.  At the time of the applicant's selection he had an outdated physical and security clearance and was under suspension of favorable personnel action for failure to pass the Army Physical Fitness Test (APFT) and not meeting the standards of the Army Body Composition Program in accordance with Army Regulation 600-9.  The promotion eligibility requirements for which the applicant was flagged prohibited promotion action as summarized in Army Regulation 600-8-2.  Due to failure to meet all promotion requirements the applicant was not eligible for promotion at that time.  

11.  The opinion states that on 10 February 2005, the Deputy Chief of Staff, G-1, signed an exception to policy change that allows officers to be promoted without a current physical, security clearance, and APFT.  Based on the policy the officers would be promoted and given a DOR of 10 February 2005, the effective date of the policy change.  Due to the policy change the applicant was subsequently promoted on orders dated 14 May 2005 with 10 February 2005 as his DOR.  The opinion concluded that since the applicant did not meet all promotion requirements prior to the policy change, he is not eligible for an earlier DOR to captain or promotion consideration to major at this time.     

12.  The opinion further points out that based on the applicant's promotion eligibility date of 13 August 2000 he was in zone for promotion consideration to captain by the 1999 and 2000 selection boards.  The applicant was omitted from the boards; therefore, he is eligible for promotion consideration by DA Special Selection Boards under the 1999 and 2000 criteria.  If the applicant is considered and selected for promotion by a special board under either criteria he may be eligible for an earlier DOR to captain and special board consideration to major providing he furnishes documentation to verify all promotion requirements were met prior to 10 February 2005. 
  
13.  A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  On 31 August 2009, the applicant responded.  In summary, he requested promotion to captain under a DA Special Selection Board under the 1999/2000 criteria.  He indicates that he was not considered for promotion until 2002 although he was eligible in 1999 and that he seeks to get his DOR corrected in order to pursue promotion to major by a later DA Special Selection Board.  


14.  Paragraph 4-11a of Army Regulation 135-55 states that an officer who has been recommended for promotion to the next higher grade must meet the requirements listed below before being promoted in the Reserve components. The officer must be on the RASL or, if a WO of any grade, serving in an active status; be in the zone of consideration, as appropriate; be medically qualified; have undergone a favorable security screening; meet standards of the Army Body Composition Program; and be a satisfactory participant.
15.  Paragraph 4-21 of Army Regulation 135-155 states that the effective date of promotion may not precede the date of the promotion memorandum.  An officer is promoted after selection if all qualifications for promotion are met.  When an officer does not meet the qualifications for promotion, the effective date of promotion will not be earlier than the later date all qualifications are met.  In no case, will the date of rank or effective date of promotion be earlier than the date the board is approved, or, if required, the date of Senate confirmation.
16.  Table 2-1 of Army Regulation 135-155 states that the minimum time in grade as a first lieutenant for promotion to captain is 2 years and the maximum time in grade is 5 years; and that the minimum time in grade as a captain for promotion to major is 4 years and the maximum time in grade is 7 years.
DISCUSSION AND CONCLUSIONS:
1.  The applicant's requests that his DOR for captain be adjusted to 14 August 2000 and that he be promoted to major effective 14 August  2007 were carefully considered.  However, the advisory opinion points out that at the time of the applicant's selection for promotion to captain in 2002 he did not meet all promotion requirements and was not eligible for promotion at that time.  Subsequently, in accordance with the 10 February 2005 exception to policy, the applicant was promoted to captain on 14 May 2005 with a DOR of 10 February 2005.   

2.  Since the applicant did not meet all promotion requirements prior to the policy change, he is not eligible for an earlier DOR to captain or promotion consideration to major at this time.     

3.  The advisory opinion states the applicant is eligible for promotion consideration by DA Special Selection Boards under the 1999 and 2000 criteria because he was in the zone for promotion consideration to captain but he was omitted from the boards.  Therefore, the applicant’s records should be submitted to DA Special Selection Boards for promotion consideration to captain under the 1999 and 2000 criteria.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  ___X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by submitting his records to duly-constituted DA Special Selection Boards for promotion to captain under the 1999 and 2000 criteria and, if selected, that he be entitled to all back pay and allowances as a result of this action.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to adjusting his DOR for captain to 14 August 2000 and that he be promoted to major effective 14 August  2007.




      _______ _  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)                                         AR20090003746





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ABCMR Record of Proceedings (cont)                                         AR20090003746



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