DOCKET NUMBER:  AR20090004370 


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 major be adjusted to 30 May 2008. 

2.  The applicant states, in effect, that due to an oversight by the Promotions Office at St. Louis, Missouri she was erroneously omitted from the 2008 Major Army Promotion List mandatory board and was not given the opportunity to be moved to a position of higher grade since she was not pending a promotion.  She contends that she utilized the Standby Advisory Board option and was recommended for major under the 2008 Major Army Promotion List board criteria.  She contends the approval date of the board was 30 May 2008 and the Standby Advisory Board was approved on 9 February 2009.  

3.  The applicant provides mobilization orders; promotion orders; and the selection letter of the Standby Advisory Board in support of her application.

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service, the applicant was appointed a second lieutenant in the U.S. Army Reserve (USAR) on 6 August 1995.  She was promoted to captain on 4 August 2002 and she entered active duty in an Active Guard Reserve status.  She served in Iraq from 1 August 2006 to 4 August 2007.  On 
7 February 2008, she was released from active duty.  On 24 March 2008, she was released from the USAR Control Group (Reinforcement) and assigned to the 63rd Regional Support Command.    

2.  A memorandum, dated 9 March 2009, states that a Department of the Army Special Selection Board convened on 23 September 2008 and selected the applicant for promotion to major under the 2008 criteria.  The memorandum states, in pertinent part, that "The officer can receive an earlier date of rank, but not earlier than the Secretary of Defense approval date of criteria year selected under (30 May 2008).  If the officer is mobilized, a [sic] AHRC Form 56-R is required, if the officer is non-mobilized, an AHRC Form 155-R is required, signed by unit commander indicating the date the officer was assigned to a position of higher grade."  

3.  The applicant was promoted to major on 9 March 2009.

4.  Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve Component officers.  Paragraph 4-21b(2) of this regulation states that unit officers selected by a mandatory board will have a promotion date and effective date no earlier than the date the board is approved or the date of Senate confirmation (if required), provided they are assigned to a position in the higher grade.  When the board approval or, if required, Senate confirmation is before assignment to the position in the higher grade, the effective date and the date of promotion will be the date of assignment to the higher graded position.  If the officer voluntarily delays promotion and is later assigned to a higher graded position during the period of delay, the effective date and date of promotion become the date of assignment to the higher graded position. 

5.  Paragraph 4-21e(2) of Army Regulation 135-155 states that if an officer is selected by an Special Selection Board the officer's DOR and effective date for pay and allowances would be the same as if the officer had been recommended for promotion to the grade by the mandatory board that should have considered, or that did consider, the officer.

6.  Title 10, U.S. Code, section 14502(e) states an officer who is placed on a promotion list as a result of [a] recommendation for promotion by an Special Selection Board shall, as soon as practicable, be appointed to the next higher grade in accordance with the law and policies which would have been applicable had the officer been recommended for promotion by the board which should have considered or which did consider the officer.  An officer who is promoted to the next higher grade as the result of the recommendation of an Special Selection Board upon such promotion shall have the same DOR, the same effective date for the pay and allowances of that grade, and the same position on the Reserve active-status list as the officer would have had if the officer had been recommended for promotion to that grade by the selection board which should have considered, or which did consider, the officer. 

7.  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 that the applicant had a captain DOR of 4 August 2002 and 7 years time in grade which makes her promotion eligibility date 3 August 2009.  The zone of consideration for the 2008 Major, Army Promotion List, Department of the Army Reserve Components Selection Board considered captains with a DOR of 
31 August 2002 and earlier.  The applicant was in the zone of consideration but was omitted from the board.  The applicant applied for a Special Selection Board, was considered, and selected to major under the 2008 criteria.  She was given a DOR to major of 9 March 2009.  This date is the date the 63rd Regional Support Command stated on the AHRC Form 155-R, dated 11 March 2009, that the applicant was assigned to a major position.  The opinion states that individuals who are in a troop program unit must have a valid security clearance, valid physical, valid Army Physical Fitness Test, and be in the higher grade position in order to get the date the board was approved.  The applicant was also provided this information in an electronic message on 9 March 2009.  However, since the applicant did not get assigned to the higher grade position until 9 March 2009, this is the earliest date this office can give her.    

8.  A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  On 19 May 2009, the applicant responded.  In summary, she stated that she was in the zone of consideration but was omitted from the board due to an oversight of the Promotion Office at St. Louis, that she should have been considered along with her peers for the Fiscal Year 2008 Major Army Promotion List which convened on 10 March 2008, and that she should not be penalized for someone else's error.  Leaving her DOR as 9 March 2009 places her nearly a year behind her peers, that this later date of promotion could unfairly reflect poorly on her and her military career, and that individuals reviewing her records and not knowing the circumstances will erroneously assume that she was not promoted with her peers because of substandard performance.  She indicates that it is only fair that her DOR be adjusted to 30 May 2008 since she was selected under that criteria.  She enclosed a copy of her Officer Evaluation Report for the period 8 February 2008 to 7 February 2009 which states, in pertinent part, "CPT [applicant's last name] is currently operating at the senior Major level, promote ahead of peers." 

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant was in the zone of consideration but was omitted from the 2008 Major, Army Promotion List, Department of the Army Reserve Components Selection Board, through no fault of her own.  Evidence of record also shows that the applicant was selected for promotion to major by a Special Selection Board on 23 September 2008 under the 2008 criteria.    

2.  Evidence of record also shows the applicant was assigned to a major position on 9 March 2009 and that she was promoted to major on 9 March 2009 with a DOR of 9 March 2009.  There is no evidence of record and the applicant provided none (such as a statement from her commander that states she could have been slotted in the higher grade on a specific date) which shows the applicant was assigned to, or would have been assigned to, a position in the higher grade on 30 May 2008 or before 9 March 2009.  Therefore, in accordance with the governing regulation, there is an insufficient basis for granting the applicant's request.

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)                                         AR20090004370



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090004370



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1