IN THE CASE OF:	  

		BOARD DATE:	    2 February 2010

		DOCKET NUMBER:  AR20090011090 


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, in effect, an adjustment of her captain (CPT) date of rank (DOR).

2.  The applicant states, in effect, that her CPT DOR should be adjusted to reflect the 5 year maximum time in grade requirement.  She indicates she was serving in the Individual Ready Reserve (IRR) and completed the civilian and military education requirements for promotion to CPT in 1988 making her eligible for promotion to CPT at the time the Fiscal Year 1995 (FY 1995) CPT Reserve Component Selection Board (RCSB) convened.  She also states she had a name change due to marriage at that time and indicates her married name was an oversight and that her complete record was in her maiden name.

3.  The applicant provides the following documents in support of her application:  self-authored statement; DA Form 71 (Oath of Office); letter dated 16 May 1987; three DA Forms 1059 (Service School Academic Report), dated 22 April 1988, 26 May 2000, and 16 June 2006; letter dated 20 July 1998; Federal Recognition Order, dated 26 July 2003; major (MAJ) promotion order; Lincoln University Academic Record; and Promotion Timeline/Educational Requirement Chart.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows she was appointed a Reserve commissioned officer in the rank of second lieutenant (2LT) on 16 May 1987.  She was promoted to first lieutenant (1LT) on 26 May 1990; to CPT on 1 April 1999, and to MAJ on 8 June 2005.
2.  She is currently serving on active duty in Kuwait as a materiel management officer in the rank of MAJ.

3.  An advisory opinion, dated 10 August 2009, from the Chief, Special Actions Branch, Department of the Army (DA) Promotions, Human Resources Command, St. Louis, Missouri (HRC-St. Louis) stated that the applicant’s CPT DOR of 1 April 1999 was based on her selection for promotion by the August 2001 Department of the Army Special Selection Board (SSB) under the 1998 criteria.  The advisory opinion also states that a review of the applicant’s file shows she was inadvertently omitted from the 1994, 1995, and 1996 CPT RCSBs and that due to these omissions she is eligible for advisory/special board consideration under all three criteria.  The recommendation is that the applicant’s record be placed before an advisory/special board for promotion consideration to CPT under the 1994, 1995, and 1996 criteria.  If the applicant is selected for promotion to CPT with an earlier DOR her record may be corrected accordingly and she may be eligible for special board consideration to MAJ.  

4.  On 5 November 2009, the applicant was forwarded a copy of the advisory opinion for her comment/rebuttal.  To date no reply has been received.

5.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) states that promotion consideration/ reconsideration by an SSB may only be based on erroneous non-consideration or material error, which existed in the record at the time of consideration.  The regulation further specifies that the Chief, DA Promotions, is the approval authority for all current criteria requests for exception to non-statutory promotion requirements (i.e., military education), and that requests must contain complete justification and be received prior to the board convening date.  

6.  Table 2-1 of the Reserve Component promotions regulation contains the time in grade requirement for commissioned officers, other than commissioned warrant officers.  It confirms that the maximum time in grade for a 1LT is 5 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that her CPT DOR should be adjusted to reflect the 5 year maximum time in grade requirement has been carefully considered.  However, there is insufficient evident to provide the requested relief at this time. 


2.  However, while there is no basis upon which to authorize an adjustment of the applicant’s DOR at this time, the evidence of record confirms the applicant was erroneously omitted from promotion consideration by the FY 1994, 1995, and 1996 RCSBs, as confirmed in the HRC-St. Louis advisory opinion.  Therefore, it would be appropriate to place her record before an SSB for promotion consideration to CPT under the criteria of these earlier boards. 

3.  If the SSB selects the applicant for promotion to CPT under an earlier criteria, her CPT promotion effective date and DOR should be adjusted accordingly.  Further, she should be provided all back pay and allowances due as a result.

4.  Further, if the applicant is selected under an earlier criteria this would make her eligible for consideration for promotion to MAJ under a criteria for previously- held MAJ RCSBs.  Therefore, her record should be placed before an SSB for promotion consideration to MAJ under the criteria used by any RCSB for which she would have been eligible.  If the applicant is not selected for promotion to CPT under an earlier criteria, or for MAJ if considered by an SSB, she should be so notified. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  __X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  submitting her record to an SSB for promotion consideration under the FY 1994 or, if necessary, under the 1995 and 1996 CPT RCSB criteria;

	b.  if selected for promotion to CPT by the SSB, the effective date and DOR of her promotion should be adjusted to the date of eligibility as determined by appropriate Departmental officials, using the appropriate criteria under which selected; and she should be provided all back pay and allowances due as a result;
	c.  if selected for promotion to CPT with an earlier DOR that renders her eligible for consideration for promotion to MAJ under any previously-held MAJ RCSB, her record should be submitted to an SSB for promotion consideration to MAJ; and if selected she should be promoted effective the date of eligibility as determined by appropriate Departmental officials, using the appropriate criteria under which selected; and she should be provided all back pay and allowances due as a result; and 

	d.  if not selected for promotion to CPT and/or MAJ by an SSB, she should be so notified. 

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to adjusting the applicant’s CPT DOR based on maximum time in grade.  




      __________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)                                         AR20090011090



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ABCMR Record of Proceedings (cont)                                         AR20090011090



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