IN THE CASE OF:	

		BOARD DATE:	  5 January 2010

		DOCKET NUMBER:  AR20090010900 


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 of his date of rank (DOR) to major (MAJ) from 13 March (sic) 2002 [he was actually promoted on 13 April 2002, not
13 March 2002] to 16 October 2001 or earlier and appropriate adjustment of his DOR to lieutenant colonel (LTC) as a result of this change. 

2.  The applicant states that his DOR to captain (CPT) was 1 November 1990.  He was selected for promotion to MAJ by a Department of the Army (DA) Promotion Board in August 1997 while he was assigned to Headquarters and Headquarters Company (HHC), 1st Battalion, 149th Armor.  In September 1998, his brigade commander directed him to assume the duties of the Brigade S-1 of 3rd Brigade, 40th Infantry Division, an O-4 billet.  However, he was not given movement orders due to an internal policy that required the Property Book Officer to issue a property release before the Division G-1 could transfer a Company Commander.  He contends that he was not officially assigned to a MAJ’s billet until he transferred to the U.S. Army Reserve (USAR) on 16 October 2001.  He also contends that he was not promoted to MAJ until 13 April 2002 after the 70th Regional Readiness Command (RRC) conducted a field grade assignment board to officially assign him to an O-4 billet under a memorandum of agreement (MOA) between the 104th Division (Institutional Training), 70th RRC and the 91st Training Support Division.  He further contends that the 104th Division had the ability to assess him into an O-4 billet or transfer him into the Individual Ready Reserve (IRR) to accept promotion to O-4, but did not do so.  He continues by stating that he was promoted to LTC effective 16 December 2008.  The applicant contends that he would have been eligible for promotion to 

LTC one year earlier if he had been promoted to MAJ on 16 October 2001 and he would have been eligible for LTC at least four years earlier if he had been promoted to MAJ in September 1998.  

3.  The applicant provides the following documents in support of his application:

a.  Officer Evaluation Report, for the period ending 15 October 2002;

b.  Promotion orders to LTC, dated 16 January 2009;

	c.  Promotion memorandum to MAJ, dated 19 April 2002; and 

   d.  Separation orders from the Army National Guard, dated 16 October 2001.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving in the USAR Active Guard Reserve (AGR) program in the rank of LTC.

2.  The applicant was appointed as a second lieutenant in the Regular Army (RA) on 28 May 1986.  He was promoted to first lieutenant on 28 November 1987 and to CPT on 1 November 1990.

3.  The applicant was discharged on 31 July 1995 under the provisions of Army Regulation 635-120, chapter 3 for early release program – special separation benefit.

4.  On 1 August 1995, the applicant was appointed as a CPT in the USAR.

5.  On 18 March 1996, the applicant was appointed as a CPT in the California Army National Guard (CAARNG).  Departments of the Army and the Air Force National Guard Bureau, Special Orders Number 93 AR, dated 16 May 1996, granted him Federal recognition effective 18 March 1996.

6.  Based on the required 7 years time in grade, his maximum years of service in grade (MYIG) date for promotion to MAJ was 31 October 1997.

7.  The applicant was selected for promotion to MAJ in the ARNG by a board which convened on 11 April 1997.  His promotion memorandum, dated 6 June 1997, shows he was selected for promotion to the rank of MAJ with a promotion eligibility date (PED) of 31 October 1997.  He apparently did not meet all the requirements to be promoted at that time.

8.  The applicant was separated from the CAARNG on 16 October 2001 and he was transferred to HHC, 104th Division (Institutional Training) on the following day.  Departments of the Army and the Air Force National Guard Bureau, Special Orders Number 34 AR, dated 17 December 2001, withdrew his Federal recognition effective 16 October 2001.

9.  The applicant was promoted to MAJ in the USAR effective 13 April 2002.

10.  The applicant’s DA Form 67-9 (Officer Evaluation Report) for the period covering 16 October 2001 through 15 October 2002 shows he was assigned to Headquarters, 104th Division (Institutional Training) in the rank of MAJ.  His principal duty title was Branch Chief.

11.  In the processing of this case, on 16 September 2009, an advisory opinion was obtained from the U.S. Army Human Resources Command (USAHRC-STL), St. Louis, MO ).  The advisory official recommended that the applicant’s request be denied.  The opinion stated the applicant was promoted to CPT in the RA on
1 November 1990 and he was discharged on 31 July 1995.  The applicant’s PED was 31 October 1997.  He was considered and recommended for promotion to MAJ by the 1997 DA Reserve Components Selection Board.  The applicant did not meet all promotion requirements on his PED in accordance with Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraphs 4-11 and 4-12.  He did not possess a medical examination that was within 5 years of his PED, his current Army Physical Fitness Test (APFT) was not within the maximum allowable weight, and he was not in a higher graded position.  The opinion also stated that the applicant transferred to the USAR on 16 October 2001 and all the requirements were met on 13 April 2002; therefore, he received that date as his DOR to MAJ.  Promotion in the USAR to LTC requires 7 years time in grade.  Based on the applicant’s DOR to MAJ of 13 April 2002, his PED was 12 April 2009.  The applicant was considered and recommended for promotion by the 2008 promotion board.  The board was approved on 16 December 2008 and the applicant was serving in the higher graded position on the date the board was approved.  As a result, he received a date earlier than his PED. 

12.  On 22 September 2009, a copy of the opinion was forwarded to the applicant to allow him the opportunity to submit comments or a rebuttal.  However, he did not respond within the allotted timeframe.

13.  Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve officers.  The regulation provides that mandatory selection boards will be convened each year to consider Army Reserve officers in an active status for promotion to CPT through LTC.
14.  Paragraph 4-11a of Army Regulation 135-155 states that an officer who has been recommended for promotion to the next higher grade must meet the requirements listed below before being promoted in the Reserve components.  The officer must:

   a.  Be on the Reserve Active Status List (RASL), or if a warrant officer of any grade, serving in an active status.

	b.  Be in the zone of consideration listed in tables 2-1 or 2-3, as appropriate.

	c.  Be medically qualified.

	d.  Have undergone a favorable security screening.

	e.  Meet standards of Army Regulation 600-9 (The Army Weight Control Program).

	f.  Be a satisfactory participant as defined in paragraph 2-7.  

15.  Paragraph 4-11a of Army Regulation 135-155 states that each Ready Reserve officer is required to undergo a medical examination under the provisions of Army Regulation 40-501 (Standards of Medical Fitness) at least once every 5 years.  A partial or temporary physical disability resulting from a disease, wound, or injury will not disqualify an officer for promotion.

16.  Paragraph 4-21b(2) of Army Regulation 135-155 states that unit officers selected by a mandatory board will have his/her promotion date and effective date no earlier than the date the board is approved or the date of Senate confirmation (if required), provided they are assigned to a position in the higher grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that he had assumed the duties of a Brigade S-1, which is an O-4 billet, but he was not officially assigned to an O-4 billet until he transferred to the USAR on 16 October 2001.  Although the applicant may have been assigned to a MAJ position prior to 16 October 2001, he did not meet all the other requirements for promotion to MAJ at that time.

2.  The applicant contends that he was not promoted to MAJ until 13 April 2002 after the 70th RRC conducted a field grade assignment board to officially assign him to an O-4 billet.  Based on the opinion from HRC-STL, the applicant met all the requirements for promotion to MAJ on 13 April 2002.  Therefore, he was appropriately promoted to MAJ with a DOR of 13 April 2002.  

3.  The applicant also contends that his unit, the 104th Division, had the ability to assess him into an O-4 billet or transfer him into the IRR to accept promotion to O-4.  However, there is insufficient evidence to substantiate his claim.

4.  The applicant contends that he would have been eligible for promotion to LTC one year earlier if he had been promoted to MAJ on 16 October 2001 and he would have been eligible for LTC at least four years earlier if he had been promoted to MAJ in September 1998.  Again, the applicant had not met all the requirements for promotion to MAJ until April 2002.  Therefore, he was not eligible for promotion to MAJ or LTC at earlier dates.

5.  The applicant was selected for promotion to MAJ by the 1997 DA Reserve Components Selection Board.  However, the applicant did not possess a medical examination that was within 5 years of his PED, his current Army Physical Fitness Test (APFT) shows he was not within the maximum allowable weight, and he was not in a higher graded position on his PED of 
31 October 1997.  The applicant was transferred to the USAR on 16 October 2001 and he met all the requirements on 13 April 2002.  As a result, he was promoted to MAJ on 13 April 2002.

6.  The applicant was recommended for promotion to LTC by the 2008 promotion board.  The board was approved on 16 December 2008.  Since the applicant was serving in the higher graded position on the date the board was approved, he was promoted on 16 December 2008 (4 months earlier than his PED of 12 April 2009).

7.  There appears to be no error or injustice that exists in this case.  Therefore, there is no basis for adjusting the applicant’s DOR to MAJ or LTC to earlier dates.

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)                                         AR20090010900



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ABCMR Record of Proceedings (cont)                                         AR20090010900



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