IN THE CASE OF:	  

		BOARD DATE:	        3 November 2009

		DOCKET NUMBER:  AR20090012057 


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 show he was promoted to lieutenant colonel (LTC)/pay grade O-5.

2.  The applicant states, in effect, he was selected by a board of senior grade officers to be promoted to LTC and an official at the U.S. Army Human Resources Command (USA HRC),St. Louis, MO, over-ruled their decision.

   a.  He states that he and one other officer in his unit were in the same situation; however, the other officer was allowed to retain his rank while the applicant lost his.

   b.  He states that the Chief, Reserve Component (RC) Promotions, USA HRC, St. Louis, told his brigade commander that, "he knows many officers are promoted each year but they don't have the manpower to check each one."  He adds that when the Inspector General (IG) received his request to investigate the revocation of his promotion, the IG stopped focusing on the issue of his military education and focused on his Army Physical Fitness Test (APFT) and height and weight.

   c.  He concludes by stating he wore the rank of LTC for two months before his promotion was revoked, he believes he was singled out and treated unjustly, and the rank of LTC should be returned to him.


3.  The applicant provides, in support of his application, copies of his promotion and revocation orders; a letter from his brigade commander; a DA Form 705 (APFT Scorecard); a DA Form 5500 (Body Fat Content Worksheet); email messages, dated 16 January through 16 June 2009; faxed documents, dated     4 May 2009; and a DA Form 1559 (Inspector General Action Request), dated    28 April 2009.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve commissioned officer in the rank of second lieutenant on 19 July 1987.  He was promoted to the rank of major (MAJ)/pay grade O-4 on 27 June 2001.

2.  A Headquarters, USA HRC, St. Louis, memorandum, dated 24 August 2006, subject:  Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), shows the applicant was notified he had completed the required years of service and was eligible for retired pay upon application at age 60 in accordance with the provisions of Title 10, U.S. Code, chapter 1223.

3.  Headquarters, 311th Sustainment Command (Expeditionary) Rear,
Los Angeles, CA, Orders 08-322-00013, dated 17 November 2008, show the applicant was assigned to the U.S. Army Reserve (USAR), Retired Reserve,
St. Louis, in the rank of MAJ (O-4), effective 9 January 2009.

4.  Headquarters, 311th Sustainment Command (Expeditionary) Rear,
Los Angeles, Orders 09-008-00001, dated 8 January 2009, revoked Orders
08-322-00013, dated 17 November 2008, that assigned the applicant to the USAR, Retired Reserve, St. Louis.

5.  In support of his application, the applicant provides the following documents.

   a.  Headquarters, USA HRC, St. Louis, Orders B-01-900873, dated
29 January 2009, that promoted the applicant to LTC, effective and with a date of rank (DOR) of 15 January 2009.  The orders state, in pertinent part, "[p]romotion is not valid and it will be revoked if you are not in a promotable status on the effective date of promotion."

    b.  Headquarters, USA HRC, St. Louis, Orders B-01-900873R, dated
2 April 2009, that revoked Orders B-01-900873, dated 29 January 2009, that promoted the applicant to LTC.


	c.  A DA Form 705 and a DA Form 5500, both dated 12 September 2008, that show the applicant scored a total of 206 points on the APFT and that he was in compliance with Army body fat standards.

   d.  Headquarters, 96th Sustainment Brigade, Fort Douglas, Salt Lake City, UT, memorandum, dated 23 June 2009, subject:  Revocation of Promotion Orders for MAJ [Applicant's Name], under the signature of Colonel C.J. R___ (the applicant's brigade commander).  The commander provides a summary of the circumstances pertaining to the applicant's promotion and revocation of his promotion, along with that of another officer in the command.  He also summarizes the communication he had with officials at the USA HRC RC Promotions section.  He concludes that the only difference in the two officers' situation was that the applicant had not submitted a written request for exception to policy to the Board regarding his military education.

   e.  Email messages, dated 16 January through 16 June 2009; faxed documents, dated 4 May 2009; and an IG Action Request, dated 28 April 2009, show the applicant was informed by a USA HRC staff member of his selection for promotion to LTC by the November 2008 LTC Army Promotion List (APL) Selection Board.
   
       (1)  The applicant was then notified a review of his file indicated that his promotion may have occurred in error based on not meeting the military education requirement and the applicant's command looked into the matter.  A USA HRC staff member then notified the applicant that his failure to provide proof of completing the military education requirement for LTC resulted in revocation of his promotion order.

       (2)  The documents show another officer in the applicant's command was also notified that a review of his file indicated that his promotion may have occurred in error based on not meeting the military education requirement.  
The other officer was allowed to keep his rank because he had submitted a request for exception to the Board.

	    (3)  The applicant requested assistance from Senator Orin Hatch and the IG in resolving the matter that resulted in the revocation of his promotion to LTC.  The IG's notice to the applicant shows an anonymous IG complaint had been received that the applicant was ineligible for promotion based on not meeting the military education requirement, APFT, and height/weight requirements for promotion.  The applicant asserted that the USA HRC staff member did not mention the APFT or height/weight requirements as reasons for his ineligibility.

       (4)  The IG's office informed the applicant that it had completed its investigation and advised him to apply to the Army Board for Correction of Military Records.

6.  In connection with the processing of this case, an advisory opinion was obtained from the Chief, Special Actions Branch, Department of the Army (DA) Promotions, USA HRC, St. Louis.

   a.  The advisory official stated that the applicant was considered, and not selected, by the 2007 LTC DA Reserve Component Selection Board (RCSB) for not meeting the required military education prior to the convening date of the selection board.

   b.  MILPER Message Number 08-137, dated 27 May 2008, subject:  Fiscal Year 2008 RC LTC APL, Competitive Categories Promotion Selection Boards Zones of Consideration, was issued and identified the applicant for the board.

	c.  The message outlined the administrative procedures for preparation of the individual's board file and requirements, including the required military education (i.e., 50 percent completion of legacy Command and General Staff Officers Course or 100 percent completion of Intermediate Level Education - Common Core (ILE-CC), or equivalent) and/or waiver for military education.  In order to be eligible for a waiver, an individual must have completed, at a minimum, Phases
I and II of the non-resident ILE-CC.

   d.  The applicant was considered and selected by the 2008 LTC DA RCSB and he was issued promotion orders to LTC.
   
	e.  On 23 March 2009, the Office of Promotions, RC, was asked to review the applicant's promotion to determine if he met the required military education, APFT, and height/weight standards.  The review indicated that the applicant's record was erroneously coded as educationally qualified.  The applicant was notified to submit any documentation that would indicate he was qualified for promotion; however, the applicant failed to respond.  Available records indicated that the applicant had graduated from Phase I of ILE-CC, he had a reservation for Phase II, and he was a no-show.  As such, he did not meet the military education requirement and he would not have been eligible to apply for a military education waiver.  Therefore, his promotion orders were revoked.

	f.  The advisory official stated that the applicant is comparing his case to another officer's promotion action; however, that officer submitted an education waiver request that was granted, and he met the education requirement in order to be eligible for selection and to keep his promotion.
	g.  The advisory official recommended denial of the applicant's request for reinstatement of promotion to LTC.

7.  On 13 August 2009, the applicant was provided a copy of the USA HRC advisory opinion for information and in order to allow him the opportunity to submit comments or a rebuttal.  On 3 September 2009, he provided his rebuttal to the advisory opinion and stated that:

   a.  he acknowledges he was not eligible for promotion consideration by the 2007 LTC DA RCSB because he was enrolled in the correspondence course for ILE-CC Phase I at the time;

   b.  he believed he was not eligible for promotion consideration by the 2008 LTC DA RCSB because of the ILE-CC requirements; therefore, he did not update his file;

	c.  he decided to retire from the Army because of some family issues and his retirement was to be effective on 9 January 2009;

   d.  on 6 January 2009, he was notified by his commander that he had been selected for promotion to LTC and asked if he wanted to reconsider his decision to retire.  (He adds he was skeptical about his selection for promotion, checked into his eligibility to be promoted, was advised he only needed to be assigned to an LTC position, and he decided to request withdrawal of his retirement.);

	e.  he resolved the issues related to his APFT and height/weight;

   f.   he and another officer were notified by a USA HRC staff member that their promotions may have occurred in error, it was later determined that the other officer had submitted a waiver that was granted by the board; however, the applicant asserts the waiver was never seen by the board and adds this is one of his biggest concerns;

   g.  he adds the other officer was promoted, although he did not complete the two phases of the ILE-CC, and it is unjust that the applicant's promotion was revoked; and

	h.  he decided to stay in the Army in hopes of favorable resolution of his request.

8.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) prescribes policy and procedures used in 
the selection and promotion of commissioned officers of the Army National Guard of the United States (ARNGUS) and the commissioned and warrant officers of the USAR.  Chapter 2 (Promotion Eligibility and Qualification Requirements), Section III (Board Considerations), paragraph 2-15 (Exceptions), subparagraph b (General exceptions), states that the Commander, USA HRC, Chief, Office of Promotions (RC), is the approval authority for exceptions to all non-statutory promotion requirements.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was promoted to LTC effective and with a DOR of 15 January 2009 because he was promoted on that date; however, his promotion was unjustly revoked.

2.  Records show the applicant was considered and selected by the 2008 LTC DA RCSB and he was issued promotion orders to LTC.  Records also show that a review of the applicant's file revealed it was erroneously coded as educationally qualified, the applicant was notified to submit any documentation that would indicate he was qualified for promotion; however, the applicant failed to provide such evidence.  In addition, available Army records confirmed that the applicant did not meet the minimum military education requirement for promotion or the minimum military education requirement necessary to be eligible for a waiver.  Accordingly, the applicant's promotion orders were revoked.

3.  The applicant's request, along with the documentary evidence he provides in support of his request, and the evidence of record were carefully considered.

   a.  The applicant's contention that another officer was granted a military education waiver even though he did not meet the requirements for such a waiver is noted.  However, the evidence of record shows that officials at the USA HRC St. Louis reviewed that officer's case.  The reviewed determined that the officer had submitted a request for a military education waiver, the request was granted, and the officer met the education requirement in order to be eligible for selection and to keep his promotion.
   
	b.  There is no evidence the applicant met the military education requirement for promotion to LTC prior to the convening date of the 2008 LTC DA RCSB. There is also no evidence that the applicant submitted a waiver that was granted by the board.  Moreover, the evidence of record shows that the applicant would not have been eligible to apply for a military education waiver because he had not completed Phases I and II of the non-resident ILE-CC.  Thus, there was no basis for granting the applicant a waiver of the minimum military education requirement for promotion to LTC.  Therefore, the applicant is not entitled to promotion to the rank of LTC.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20090012057



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ABCMR Record of Proceedings (cont)                                         AR20090012057



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