BOARD DATE:	  7 January 2010

		DOCKET NUMBER:  AR20090007298 


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, correction to his date of rank (DOR) for captain (CPT)/pay grade O-3 from 20 January 2006 to 1 March 2005 based upon the results of a March 2005 Troop Program Unit (TPU) Position Vacancy Board (PVB).

2.  The applicant states, in effect, that he should have been offered a promotion to CPT as per the results of the TPU PVB conducted by his command in March 2005.  The applicant further states that he was never notified that he had been selected for promotion due to the fact that he had subsequently entered the Active Guard Reserve (AGR) Program and reported to his next duty station.  The applicant continues that he would have left the AGR Program in order to accept the promotion.  He contends that since he has now completed over four years of service since this incident, his DOR should be back-dated to 1 March 2005 to correct this injustice, but he also wishes to remain in the AGR Program.  The applicant states that he had no idea he was selected for promotion until recently speaking with a fellow officer from that command.  The applicant concludes that an adjusted DOR would allow him to be considered for promotion to major one year earlier than expected.

3.  The applicant provides no documentary evidence in support of this application, but requests the Board refer to the March 2005 TPU PVB results that should be on file at either the Army Human Resources Command or the National Archives.


CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records show he was appointed in the U.S. Army Reserve (USAR), Adjutant General Corps, as a second lieutenant (2LT)/pay grade O-1, effective 8 January 2000.

3.  Due to the fact that all promotion qualifications were not met in a timely fashion, the applicant could not be promoted at his promotion eligibility date of 7 January 2002.  He was, instead, promoted to first lieutenant (1LT)/pay grade O-2 upon fulfillment of all promotion qualifications, effective 28 February 2002.

4.  The applicant applied for and was subsequently accepted into the AGR Program.

5.  In a memorandum, dated 18 February 2005, the applicant acknowledged that if he was selected for promotion to captain by the March 2005 PVB for TPU Positions, and wished to accept the promotion, he would first have to request removal from the AGR Program before he would be transferred to the TPU.  The applicant also indicated his understanding that he may not be eligible to get released from the AGR Program and in that case, he would have to decline the promotion.  The applicant authenticated this memorandum with his signature.

6.  U.S. Army Human Resources Command, St. Louis, Missouri, memorandum, dated 28 February 2005, Subject:  Notice of Subsequent U.S. Army Reserve AGR Tour, shows the applicant was notified that he was eligible for indefinite status in the AGR Program and his name had been forwarded to the Director, Army Reserve Active Duty Management Directorate for approval.  This memorandum informed the applicant that he had to make an election to either accept indefinite status and incur a one-year active duty service obligation or to decline indefinite status by taking no action and he would be released from active duty at the end of his current tour.

7.  Headquarters, 38th Ordnance Group (Ammunition)(Direct Support/General Support), Charleston, West Virginia, memorandum, dated 3 March 2005, Subject:  Removal of Consideration for the March 05 PVB for TPU Positions for [applicant's rank, name, and social security account number (SSAN)], shows the applicant declined promotion consideration and requested to have his promotion packet removed from consideration for the March 2005 PVB.  The applicant stated that he was continuing his career in the AGR Program and did not wish to be considered for promotion by the PVB at that time.

8.  A DA Form 4187 (Personnel Action), dated 24 March 2005, shows the applicant requested reattachment in the AGR Program.  In response to the applicant's request, the applicant was ordered to active duty in an AGR status with the 468th Chemical Battalion located in Little Rock, Arkansas, with a reporting date of 1 July 2005.

9.  Headquarters, 468th Chemical Battalion, Little Rock, Arkansas, memorandum, dated 2 February 2006, Subject:  Consideration for Special Selection Board (SSB) Under 2005 CPT Army Promotion List (APL) Reserve Component (RC) Selection Criteria for [applicant's rank, name, basic branch, and SSAN), shows the applicant requested consideration to be boarded in March 2006 by the SSB under the 2005 CPT APL RC selection criteria.  The applicant cited the fact that he had removed himself from consideration by a PVB as justification for special consideration.

10.  The applicant was considered and recommended for promotion to captain by the SSB that adjourned on 27 March 2006.  U.S. Army Human Resources Command, St. Louis, Missouri, Orders B-09-606628, dated 12 September 2006, show the applicant was promoted to CPT in USAR Control Group (AGR) with an effective date and DOR of 20 January 2006.

11.  In an advisory opinion, dated 14 May 2009, the Chief, Special Actions Branch, Department of the Army Promotions, U.S. Army Human Resources Command, St. Louis, Missouri, recommended denial of the applicant's request.  The advisory official stated, in effect, that TPU PVBs are Command initiated boards that are used to fill authorized position vacancies against strength authorization.  Once the board has been finalized the position is filled.  On 22 March 2005, the PVB was held and a packet was submitted on the applicant, who was an AGR officer at the time.  The applicant was selected for promotion by the PVB, but unable to be promoted due to not being in the position for which boarded.  Evidence shows the applicant was contacted on two different occasions and told to contact a representative at the 99th Regional Readiness Command to discuss the board results and decide whether he wanted to decline the promotion and remain in the AGR Program or request release from the AGR Program in order to return to the TPU unit and accept the PVB promotion.  On 3 March 2005, the applicant voluntarily declined consideration by the PVB in order to continue his career in the AGR.  The applicant was selected and promoted to captain due to omission based on an SSB under calendar year 2005 selection criteria and given a DOR of 20 January 2006.  In view of the foregoing, it was recommended the applicant's request be denied.

12.  The advisory opinion was forwarded to the applicant for concurrence or rebuttal on 5 August 2009 and he did not provide a response.

13.  Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve Component officers.  The regulation specifies that officers in the grade of first lieutenant may be eligible for promotion consideration to captain by a PVB upon completion of 2 years minimum time in grade.  Promotion to fill authorized TPU position vacancies may be filled through promotion of the best-qualified and geographically available officer to the grades of captain through colonel.  All TPU officers in the next lower grade must have met the minimum time in grade for promotion to the next higher grade and be geographically (non-mobilized) available to serve in the position for which considered.  The existence of a valid position will be determined by counting certain officers against the strength authorized.  The area commander will ensure that the intent of the position vacancy fill procedures have been complied with before proceeding with PVB promotion consideration. 

14.  Army Regulation 135-155 also specifies that the unit commander will initiate position vacancy promotion procedures and forward a memorandum listing all unit officers eligible for promotion consideration.  The memorandum will include the following information:  rank of position, branch, area of concentration, position title, unit, UIC, location of unit, table of organization and equipment/table of distribution and allowances number, PARA/LINE number, and date of position vacancy.

15.  Army Regulation 135-155 further specifies that if an officer selected for a position vacancy promotion is determined to be ineligible for promotion, the Office of Promotions, Reserve Components, will, after verification, explain the officer's ineligibility and request removal or administrative deletion of the officer's name.  An officer is not eligible for consideration if he or she was not approved for the position per Army Regulation 140-10.


16.  Army Regulation 135-155 also specifies that SSBs will convene and consider commissioned officers who were erroneously not considered and reconsider commissioned officers who were considered but not selected by mandatory promotion boards.   The regulation does not provide for promotion consideration by a SSB for erroneous consideration by a PVB or non-promotion to the next higher grade as a result of a PVB selection.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DOR for CPT should be adjusted from 20 January 2006 to 1 March 2005 was carefully considered.

2.  Evidence shows that at the time of his selection for promotion by the PVB, the applicant was a member of the AGR Program and no longer occupied the position for which he had been considered.  Therefore, the applicant was not eligible for promotion under the parameters of the PVB.  Evidence also shows that the applicant voluntarily declined promotion consideration by the TPU PVB in order to continue his career in the AGR.

3.  The applicant was considered and selected for promotion by an SSB and promoted to CPT with a date of rank of 20 January 2006, based on his assignment to a higher graded position in an AGR status.  Therefore, he received the earliest date to which he was entitled.

4.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.  In view of the foregoing, there is no 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)                                         AR20090007298





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ABCMR Record of Proceedings (cont)                                         AR20090007298



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