IN THE CASE OF:	  

		BOARD DATE:	  15 December 2009

		DOCKET NUMBER:  AR20090010757 


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 adjustment to his date of rank for major from 2 June 2004 to no later than 14 December 2003.

2.  The applicant states that he was promoted to the grade of captain with a date of rank of 1 September 1993; therefore, his date of promotion eligibility was 31 August 2000, which was 7 years later.  He states that on 14 December 2003, he began serving in the higher graded position of major and that Headquarters, United States (US) Total Army Personnel Command, Alexandria, Virginia, memorandum dated 13 August 1993 announced his promotion to the rank of captain under Title 10, United States Code.  He states that the memorandum shows that his time in grade for promotion to major could be computed from 1 September 1993.

3.  The applicant provides a self authored memorandum addressed to the Board dated 7 April 2009 requesting consideration to have his date of rank changed; a memorandum from the Office of the Deputy Chief of Staff, G-3/5/7, Deputy Director of Operations, Readiness and Mobilization dated 7 April 2009; Orders Number 120-053 dated 13 August 1993 promoting him to the rank of captain; a memorandum from the Chief, Office of Promotions, Reserve Components dated 1 July 2004, notifying his commander of his promotion to major effective 2 June 2004; and a copy of his Officer Evaluation Report (OER) for the period 13 October 2003 through 12 October 2004.



CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he was appointed in the United States Army Reserve (USAR), as a second lieutenant, effective 11 June 1988.  He was ordered to active duty effective 23 February 1991 to fulfill a 3-year active duty commitment.

2.  The applicant was promoted to first lieutenant effective 11 June 1991 and he was promoted to captain effective 1 September 1993.

3.  On 3 November 2000, the applicant was notified by the US Total Army Personnel Command that the Secretary of the Army had approved a recommendation by a Special Selection Board for his continuation on active duty in his present grade (captain).  The applicant was informed that selective continuation allowed him to continue on active duty for a 3-year period under the provisions of Army Regulation 600-8-29, paragraph 1-14c, unless sooner separated or retired under some other provisions of law or regulation.  The applicant was further informed that if he declined continuation, Army Regulation 600-8-24, chapter 5, paragraph 5-9, required that he be separated not later than the first day of the seventh month after approval of the major's promotion list and because the promotion list was approved during the month of August 2000, he must be separated not later than 1 March 2001.  In the notification, the applicant was informed of his possible entitlements and he was instructed to sign the enclosed acknowledgement and forward it to the Commander, US Total Army Personnel Command within 30 days from the date of his notification.

4.  On 3 September 2003, the applicant was notified by the US Total Army Personnel Command that a Department of the Army (DA) Competitive Category Promotion Selection Board convened to consider him from promotion to the next higher grade and that unfortunately, he was not among those selected for promotion by the board.  He was informed that the board considered such factors as performance reflected by OERs, assignments, military and civilian training and education; and that his non-selection reflected the unavoidable fact that not all highly professional officers can be promoted through each successive grade.  The applicant was further informed that under the direction of the Secretary of the Army, a selection board convened pursuant to Title 10, U.S.C., Section 637 to consider two or more time non-selected captains for continuation on active duty and that the board recommended him for continuation in the present grade.  He was informed that if he declined continuation, the law required that he be separated not later than the first day of the seventh month after approval of the promotion board report and because the promotion board report was approved during the month of August 2003, he must be separated not later 

than 1 March 2004.  In the notification, the applicant was informed of his possible entitlements and he was instructed to sign the enclosed acknowledgement and forward it to the Commander, US Total Army Personnel Command within 45 days from the date of his notification.

5.  The applicant records show that on 13 December 2003, the he was released from active duty and was transferred to the USAR Control Group (Reinforcement).  

6.  Information obtained from the Human Resources Command (HRC) - Integrated Web Services (IWS) shows that on 14 December 2003, the applicant was assigned to Headquarters, 100th Operations Support Division, Louisville, Kentucky, as a member of the Active Guard/Reserve (AGR).

7.  On 2 June 2004, the applicant was promoted to major in an AGR status.

8.  The OER that the applicant submitted is for the period covering 13 October 2003 through 12 October 2004 and it shows that he was assigned to Headquarters and Headquarters Company, 100th Division (IT), Louisville, Kentucky, as the Division Plans and Operations Officer for the Deputy Chief of Staff, G3 section.  The OER also shows that he was promoted to the rank of major effective 2 June 2004.

9.  In an advisory opinion, dated 29 September 2009, the Chief, Special Actions, DA Promotions Branch, HRC, St. Louis, Missouri, stated that the applicant was considered and selected by the 2004 Major, Army Promotion List Department of the Army Reserve Components Selection Board that convened on 2 March 2004 and was approved by the President of the U.S. on 2 June 2004.  He stated that AGR officers receive the date the President approved the board as their date of rank, therefore, the applicant was given the earliest date of rank that his office could award.  The HRC official recommended the applicant's request be denied.

10.  The advisory opinion was forwarded to the applicant for acknowledgement and/or rebuttal on 20 October 2009.  To date, there has been not response from the applicant regarding the advisory opinion.

11.  Army Regulation 135-155 (Promotions of Commissioned Officers and Warrant Officers other than General Officers) prescribes the policies and procedures for the promotion of Reserve officers.  Paragraph 4-21d of the regulation specifies that AGR officers selected by a mandatory board will be promoted provided they are assigned/attached to a position in the higher grade.  An AGR officer who is selected for promotion by a mandatory promotion board, 

but who is not assigned/attached to a higher graded position will be promoted on the date of assignment/attachment to a higher graded position or the day after release from an AGR status.  The date of rank will be the date the officer attained the maximum time in grade (promotion eligibility date) or the date on which assigned/attached to a position in the higher grade, whichever is earlier.  The effective date of promotion cannot be prior to approval of the respective board.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his date of rank should be adjusted from 2 June 2004 to no later than 14 December 2003.

2.  His contentions have been noted and his supporting documents have been considered.  However, the applicant is not entitled to an adjustment of his date of rank.  His promotion eligibility date for promotion to major was 31 August 2000.  He was twice considered and nonselected for promotion to major in the years 2000 and 2003.  

3.  The applicant was assigned to a major position on 14 December 2003 and he was considered for promotion by the 2004 Major, Army Promotion List DA Reserve Components Selection Board that convened on 2 March 2004 and was approved by the President on 2 June 2004.  Therefore, in accordance with the applicable regulation, his date of rank cannot be any earlier than the date that the President approved the board on which he was selected.

4.  The applicant was promoted to major in accordance with applicable regulation.  Therefore, it is concluded that he was promoted to major on the earliest date he was eligible and he has not provided evidence to the contrary.

5.  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)                                         AR20090010757





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090010757



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1