IN THE CASE OF:	

		BOARD DATE:	  15 December 2009

		DOCKET NUMBER:  AR20090010684 


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 correction of his records to adjust his date of rank for captain from 27 August 1997 to 20 July 1995 and his date of rank for major.

2.  The applicant states that his selection letter, dated 27 January 1995, states, “the promotion eligibility will be used in computing time in grade for Reserve promotion to the next higher grade.”  He has learned that this type of error has been adjusted for others.

3.  In support of his application, the applicant provides copies of a memorandum, subject:  Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty, dated 27 January 1995; his captain promotion orders, dated 27 August 1997; his promotion memorandum for major, dated 12 July 2004; and page 1 of Military Personnel (MILPER) Message Number 09-110, issued on 14 May 2009.

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 Tennessee Army National Guard (TNARNG), as a second lieutenant, effective 20 July 1988. He was promoted to first lieutenant, effective 21 July 1991.

3.  Based on the required completion of 4 years time in grade in effect at the time, his promotion eligibility date (PED) for captain was 20 July 1995.

4.  The applicant was considered and selected for promotion to captain by the 1995 Fiscal Year (FY) Reserve Components Selection Board (RCSB) that convened on 15 November 1994 and recessed on 16 December 1994.  The board results were approved on 8 February 1995 and released on 16 March 1995.

5.  On 27 January 1995, the Total Army Personnel Command, St. Louis, MO, in an Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty memorandum, notified the National Guard Bureau (NGB) of the applicant’s selection for promotion to captain by the 1995 FY RCSB.  The memorandum also advised that the effective date of promotion would be the later of the following dates: (1) 20 July 1995, or (2) the date Federal recognition was extended in the higher grade, or (3) the date following the date Federal recognition was terminated.

6.  On 2 May 1995, the applicant submitted a Declination of Promotion in the Reserve of the Army and elected to decline his promotion to captain for a period not to exceed 3 years from 16 December 1994.  He acknowledged that he must be promoted on or prior to 15 December 1997.

7.  On 27 August 1997, the TNARNG issued Orders 165-237, promoting the applicant to captain effective 27 August 1997.  The orders also advised that the applicant would not be paid as a captain until Federal recognition was confirmed. He was extended Federal recognition and promoted to captain with a date of rank and effective date of 19 September 1997.

8.  On 12 July 2004, the Human Resources Command (HRC) (formerly the Total Army Personnel Command), St. Louis, issued a promotion memorandum promoting the applicant to major effective 2 June 2004.

9.  The applicant submitted a copy of MILPER Message Number 09-119 pertaining to the FY 2009 Lieutenant Colonel RCSB zones of consideration (above the zone, in promotion zone, and below the zone).

10.  In an advisory opinion, dated 6 July 2009, the Chief, Special Actions Branch, DA Promotions, HRC, St. Louis, stated, in effect, that the applicant was selected for promotion to captain by the 1995 FY RCSB.  On 27 January 1995, the NGB was issued a selection memorandum that advised them of the applicant’s selection for promotion to captain.  On 2 May 1995, the DA Promotion office received a TN Form 0717 from the TNARNG advising that the applicant applied for a declination of promotion for a period of 3 years from 16 December 1994 and it stated the applicant must be promoted on or prior to 15 December 1997.  The applicant was issued promotion orders by the TNARNG on 27 August 1997 and given an effective date of the same date.  However, on 19 September 1997, the TNARNG and NGB federally recognized and promoted him to captain.  His date of rank is the date Federal recognition was granted.

11.  The HRC official also stated that with a 19 September 1997 captain date of rank, the applicant was in the zone, considered, and selected by the 2004 Major DA RCSB.  Since he was a troop program unit officer, his promotion authority was the Directorate for Personnel Actions and Services.  The results of the board were approved on 2 June 1994 and released on 1 July 2004.  The Soldier Management System database reflected the applicant was flagged for a security clearance on 1 July 2004.  On 15 July 2004, he was promoted to major with a date of rank of 2 June 2004, based on electronic mail traffic and a memorandum verifying validity of a security clearance.  The HRC official recommended denial of the applicant’s request.

12.  On 8 October 2009, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

13.  Army Regulation 135-155 (Promotion of Commissioned Officer and Warrant Officer Other Than General Officers), in effect at the time, prescribed the policies and procedures for promotion of Reserve and ARNG officers.  That regulation specified that ARNG officers would be considered for promotion by mandatory promotion boards and promotion to captain required completion of the 4 years maximum time in grade as a first lieutenant.  The regulation also specified that an officer may request a delay of promotion and a voluntary promotion delay could be granted for up to 3 years.  It also specified that if an officer accepted a promotion prior to the expiration of a voluntary delay of promotion, the effective date would be the date of acceptance and extension of Federal Recognition.  It 
was further specified that if an officer had a maximum time in grade date prior to the acceptance date during a delay, he/she was not entitled to their original maximum time in grade date.

14.  Army Regulation 135-155, also specified that at the end of an approved period of delay, an ARNG officer must choose to be promoted in the higher grade if a higher grade position was made available.  If there was no higher grade position and the officer wants to be promoted, his/her Federal recognition would be withdrawn and they would be transferred to the Individual Ready Reserve and promoted on the date after transfer to a non-unit status.  If they choose to decline the promotion they would be removed from the promotion list.  Officers who transfer from ARNG status to a Reserve unit status at the expiration of an approved period delay are promoted effective the date of the transfer.

15.  Army Regulation 135-155, currently in effect, specifies troop program unit officers selected by a promotion board will have a promotion effective date no earlier than the approval date of the board, provided that they are assigned to a position in the next higher grade.  When the board approval date is prior to assignment to the position in a higher grade, the effective date of promotion will be the date of assignment to a higher-grade position.

16.  Army Regulation 135-155 also specifies that promotion authorities will ensure that a favorable security screening is completed to include an interim clearance before announcing a promotion.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to adjustment to his date of rank for captain based on his approved request for delay of promotion and his date of rank for major.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The evidence shows the applicant, as an ARNG officer, was selected for promotion to captain by the 1995 FY RCSB with a PED of 20 July 1995.  He elected to delay his promotion for 3 years until 15 December 1997.  On 27 August 1997, the TNARNG issued orders promoting him to captain effective the same day.  He was subsequently federally recognized and promoted to captain effective 19 September 1997, with the same date of rank.  Therefore, in accordance with regulatory guidance 19 September 1997 was the earliest date he could have been promoted to captain.


3.  The evidence also shows that based on the applicant’s date of rank for captain of 19 September 1997, he was considered for promotion to major by the 2004 RCSB that was approved on 2 June 1994.  At that time, he had been flagged for a security clearance.  Based on verification of the validity of a current security clearance, he was promoted to major with a date of rank of 2 June 2004. It appears the applicant was assigned to a higher graded position prior to the approval date of the 2004 board; as such, in accordance with applicable regulations, 2 June 2004 is the earliest date available.  Therefore, it is concluded that the applicant was promoted to major on the earliest date he was eligible and in a timely manner and he has not shown otherwise.

4.  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)                                         AR20090010684



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ABCMR Record of Proceedings (cont)                                         AR20090010684



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