IN THE CASE OF:	  

		BOARD DATE:	         30 June 2009

		DOCKET NUMBER:  AR20090008351 


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 reconsideration of his earlier request to receive promotion consideration by the Fiscal Year 2005 (FY05) Army Captains Promotion Selection Board.

2.  The applicant states, in effect, that he was denied the opportunity to request a waiver of the 1-year rule for promotion consideration by the FY05 Captains Promotion Board.  He states that Army Regulation 600-8-29 (Officer Promotions) does not address his situation and he was left with no options to correct this issue prior to his request to this Board.  The applicant also states that Army Regulation 600-8-29 provides for requests for waivers prior to a board convening and after a board has been completed.  He states he was unable to request a waiver prior to the board convening because he had not been given a date of rank (DOR) until after the promotion board.  Based on Army Regulation 600-8-29, an officer may not request a waiver after a promotion board has convened unless there was an error made by the Army and this is the basis for the denial for a Special Selection Board (SSB).  Had his DOR been determined prior to the FY05 Captains Promotion Board, he alleges that he would have been able to request a waiver based on an Officer Evaluation Report (OER) covering Army service as a platoon leader, five OERs covering three years of service as a commissioned officer in the U.S. Coast Guard (USCG), and the rules governing an inter-service transfer which grants promotion based on prior service.  



3.  The applicant also states that Army Regulation 600-8-29 does not address why there is a 1-year requirement for continuous time in service.  The Human Resources Command Officers Promotions Branch responded to his original ABCMR application by stating that the 1-year rule is to ensure the promotion candidate is competitive by having an OER on file.  He further states that the FY05 Promotion Board was a fully qualified board and not a competitive board, and he has numerous OERs reflecting his capability and potential.  

4.  The applicant provides the following documents in support of his request for reconsideration:   

a.  A certified mail receipt, dated 13 February 2007; 

b. A personal statement, dated 7 January 2009; and

c. Four U.S. Coast Guard OERs for the periods ending on 31 March 2002, 
15 May 2004, 21 September 2003, 31 January 2003, and 30 September 2002.  

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20050014164, dated 22 February 2006.

2.  The applicant has submitted new arguments and OERs from the U.S. Coast Guard, a certified mail receipt, and a personal statement as new evidence that will be considered by the Board.

3.  The applicant enlisted in the United States Army Reserve (USAR) on 27 April 1988.  On 19 February 1991, he enlisted in the Regular Army for a period of 3 years and the Warrant Officer Flight Training Program.

4.  He successfully completed training in the Warrant Officer Flight Program and was appointed as a Reserve Warrant Officer One (WO1) aviator on 28 January 1992, with a concurrent call to active duty.  

5.  He was released from active duty on 28 July 2000 at the completion of his required active service.  He had completed 9 years, 10 months, and 11 days of total active service.



6.  On an unknown date, the applicant was transferred to the USCG.  

7.  The applicant received an OER from the USCG for the period covering 1 May 2001 through 31 March 2002 which shows he served as a Coast Guard Aviator in the rank of O-1 (Ensign).  Block 9 (Comparison Scale (For Grades W2 to O-2)) of this report shows he was rated as one of the many competent professionals who form the majority of this grade.  Among the three levels, the applicant was rated at the third level, which appears to be higher than the first level (but lower than a rating of "an exceptional officer" or "a distinguished officer."  

8.  The applicant received an OER from the USCG for the period covering 1 April 2002 through 30 September 2002 which shows he served as a Coast Guard Aviator in the rank of O-1.  Block 9 of this report shows he was rated as one of the many competent professionals who form the majority of this grade.  Among the three levels indicated, the applicant was rated at the third level.  

9.  The applicant received an OER from the USCG for the period covering 1 October 2002 through 31 January 2003 which shows he served as a Coast Guard Aviator in the rank of O-2 (Lieutenant Junior Grade).  Block 9 of this report shows he was rated as one of the many competent professionals who form the majority of this grade.  Among the three levels indicated, the applicant was rated at the third level.  

10.  The applicant received an OER from the USCG for the period covering 1 February 2003 through 21 September 2003 which shows he served as a Group Education Services Officer in the rank of O-2.  Block 9 of this report shows he was rated as one of the many competent professionals who form the majority of this grade.  Among the three levels indicated, the applicant was rated at the second level.  

11.  The applicant received an OER from the USCG for the period covering 22 September 2003 to 15 May 2004 which shows he served as a District 7 Assistant Living Marine Resources Officer in the rank of O-2.  Block 9 of this report shows he was rated as one of the many competent professionals who form the majority of this grade.  Among the three levels indicated, the applicant was rated at the second level.  

12.  On 23 August 2004, the applicant was appointed as a U. S. Army Reserve first lieutenant with a concurrent call to active duty.  He attended the Aviation Officer Basic Course at Fort Rucker, Alabama and was subsequently assigned to Fort Carson, Colorado in October 2004.

13.  On 26 October 2004, the FY05 Captain, Army Competitive Category Promotion Selection Board convened.  The applicant was not considered by this board.

14.  Department of the Army, U.S. Army Human Resources Command, Alexandria, VA (HRC-Alexandria) Order Number 308-001, dated 3 November 2004, shows the applicant’s DOR for first lieutenant as 29 January 2003.

15.  The applicant received an OER covering the period from 16 October 2004 through 15 February 2005 which was directed by HRC.

16.  On 25 May 2005, while serving as an aviation platoon leader in Iraq, the applicant submitted a request for consideration by an SSB for promotion to the rank of captain.  He indicated in his request that in January 2004, after serving    3 years in the USCG, he submitted a request for an inter-service transfer back to the Army and the USCG granted his request with a release date of 18 May 2004.  However, because his request was not completed by the Army before his discharge date, his request for an inter-service transfer was voided and he had to submit a new request for active duty.  He also stated that had his request been processed without an interruption in service, he would have been considered for promotion by the FY05 Captain’s Board.

17.  HRC-Alexandria responded back to the applicant on 5 July 2005 informing him, in effect, that he was not eligible for consideration by the FY05 Captain’s Board because he did not have 1 year of continuous active duty service prior to the convening date of the board and thus, he was not eligible for consideration by an SSB.  He was further advised that he could apply to this Board.

18.  The FY06 Captain’s Promotion Selection Board convened on 25 October and adjourned on 11 November 2005.  The results of that list were released on 24 January 2006 and the applicant was selected.  He was promoted to the rank of CPT effective 1 January 2006.

19.  Army Regulation 600-8-29 (Officer Promotions) provides in pertinent part, that commissioned officers with less that 1 year of continuous active duty, since their most recent placement on the active duty list, before the board convenes are not eligible for consideration by a promotion selection board.  Officers who are exempt from the 1-year rule include an Army competitive category officer in the rank of first lieutenant who received an inter-service transfer on active duty and who transferred without a break in active duty service.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he never had the opportunity to request a waiver of the 1-year rule for promotion consideration for the FY05 Captains Promotion Board.  There is no evidence of record which indicates that an error or injustice has occurred in this case regarding the applicant's claim.  

2.  The FY05 Captain, Army Competitive Category Promotion Selection Board convened on 26 October 2004.  However, the applicant was not considered by that board because he did not have 1 year of continuous active duty prior to the convening date of the board.  

3.  Based on Army Regulation 600-8-29, officers who are exempt from the 1-year rule include an Army competitive category officer in the rank of first lieutenant who received an inter-service transfer on active duty and who transferred without a break in active duty service.  However, since the applicant had a break in service, he was not exempt from the 1-year rule.  

4.  It is regrettable that the applicant's inter-service transfer could not be accomplished in a timely manner; however, absent any evidence of record showing the applicant’s break in service was the result of an Army institutional error or injustice related to his inter-service transfer processing, there is no evidence to support a conclusion that the regulatory 1-year rule was inappropriately applied in his case.  As a result, notwithstanding the new argument and USCG OERs submitted by the applicant, there is an insufficient evidentiary basis to support granting the requested relief or amending 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 to amend the decision of the ABCMR set forth in Docket Number AR20050014164, dated 22 February 2006.




      _______ _   _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)                                         AR20090008351



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ABCMR Record of Proceedings (cont)                                         AR20090008351


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