IN THE CASE OF:	  

		BOARD DATE:	  3 September 2009

		DOCKET NUMBER:  AR20090010536 


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 that his date of rank to captain be corrected to show 15 June 2000.

2.  The applicant states, in effect, that the Army Reserve Personnel Command (AR-PERSCOM) applied the wrong regulation when delaying his promotion to captain.

3.  The applicant provides his previous Army Board for Correction of Military Records (ABCMR) Docket Number AR2002066315 and all associated documents in support of this application.

CONSIDERATION OF EVIDENCE:

1.  This case is being considered based on a remand by the U.S. Court of Federal Claims.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR2002066315 on 24 September 2002.

2.  The U.S. Court of Federal Claims remanded the case for clarification of the application of Army Regulation 135-155 (Army National Guard and U.S. Army Reserve Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) in this case.

3.  Records show the applicant was granted a Secret security clearance on 11 August 1990.  Secret security clearances generally expire 10 years after the investigation is completed and require reinvestigation to remain valid.

4.  On 10 February 1997, the applicant's commander notified the 214th Legal Support Organization of his intent to assign the applicant to a Judge Advocate Generals' Corps (JAGC) captain position vacancy pending action by higher headquarters.

5.  The applicant was considered and selected for promotion to captain by the June 2000 Position Vacancy Board (PVB).  The President approved the results of the board on 7 January 2001.

6.  He was issued a security clearance on 11 May 2001.

7.  A promotion memorandum dated 15 May 2001 was issued to him indicating his date of rank and promotion effective date for captain as 11 May 2001.

8.  The previous case included an advisory opinion from the Chief, Military Personnel Actions Branch, AR-PERSCOM, which stated that the applicant's request for a date of rank of 15 June 2000 was inappropriate because the June 2000 Position Vacancy Board which recommended the applicant for promotion was not approved by the President until 7 January 2001.  The opinion continued that the earliest date he could have been promoted if he met all other qualifications was 7 January 2001.  The opinion further stated that there was no provision to promote an officer with a date of rank prior to approval of the board by the President.  The author also noted the applicant could not have been promoted when the results were released because he did not have a security clearance.  The opinion noted the applicant was granted a security clearance on 11 May 2001; therefore, his date of rank is correct.

9.  The applicant provided a written response to the advisory opinion which essentially stated that "there is no provision to promote an officer with a date of rank prior to the approval of the board by the President" is not only misleading, it ignores Federal statutes and "paragraph 4-10 and 4-12" [of Army Regulation 135-155] do not mention or define a requirement for a Secret security clearance, or for any security clearance for that matter.

10.  Army Regulation 135-100 (Army National Guard and Army Reserve Appointment of Officers and Warrant Officers of the Army) specifies that each applicant for appointment as a commissioned officer have a Secret security clearance before an appointment may be tendered.  It also specifies that as an exception, officers may be appointed in the JAGC prior to completion of a National Agency Check provided one is requested at the time of appointment, and prior to completion of a Department of Defense National Agency Check Plus Written Inquiries (DNACI) provided that:  a) a DNACI is initiated at the time an application for a commission is received; and b) the applying JAGC officer agrees in writing that if the results of the investigation are unfavorable, he or she will be subject to discharge if found to be ineligible to hold a commission.

11.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  The 1 February 1998 version in effect at the time specifies in paragraph 4-10 that an officer who has been recommended for promotion to the next higher grade must meet the requirement of having undergone a favorable security screening.  Paragraph 4-12 of this regulation also specifies that promotion authorities will ensure that a favorable security screening is completed before announcing a promotion.  The military personnel records jacket will be screened to ensure that derogatory or unfavorable suitability information is not contained therein for promotion purposes.  If the results of this screening are favorable, final promotion action may proceed.

12.  Paragraph 4-19b(1) of Army Regulation 135-155 states that, for promotions to fill unit vacancies, the effective date will be the 15th day of the month in which the selection board convenes or the date the officer is assigned to the position, whichever is later.  The subsequent version of the regulation which became effective 24 October 2001 was changed to show that 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his date of rank to captain was erroneously delayed was carefully considered and determined to have merit.

2.  Records clearly show that the applicant had a Secret security clearance at the time that the Position Vacancy Board considered him.  Although this clearance had indeed expired prior to the approval of the results of the board, it is reasonable to presume that he would have had a favorable security screening at that time because he was again granted a Secret security clearance on 11 May 2001.

3.  Additionally, the applicant was held to the requirements of a version of Army Regulation 135-155 which was not in effect at the time of his selection by a Position Vacancy Board.  Army Regulation 135-155, in effect at the time of his selection, states that the effective date and date of rank is the 15th day of the month of the selection Board.  In this case, the Position Vacancy Board was held in June of 2000.

4.  As a result of the foregoing, it would be appropriate in this case to amend the applicant's records to show that he was promoted to the grade of captain with a date of rank and an effective date of 15 June 2000.

5.  Additionally, if based on the above correction the applicant should have been considered for promotion to a higher grade by a Mandatory Promotion Board, his records should be submitted for consideration by a Special Selection Board for any boards omitted.

BOARD VOTE:

___X____  ____X___  ___X___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR2002066315 dated 24 September 2002.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his records to show promotion to the grade of captain with a date of rank and effective date of 15 June 2000.  Additionally, if appropriate, his records should be submitted for consideration by a Special Selection Board for promotion to major.  The applicant's pay records should also be audited to determine payment of monies due as a result of this correction, if any.



      __________XXX____________
                 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)                                         AR20090010536



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ABCMR Record of Proceedings (cont)                                         AR20090010536



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