IN THE CASE OF:	  

		BOARD DATE:	  14 January 2010

		DOCKET NUMBER:  AR20090012264 


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 reinstatement of her promotion to lieutenant colonel (LTC) from the Reserve Active Status List (RASL).

2.  The applicant states, in effect, her promotion orders to LTC, dated 20 May 2008, were revoked because she had transitioned to active duty (AD).  She continues to state that Title 10, U.S. Code, section 620 (Active-Duty Lists (ADL)), paragraph (d) supports her eligibility to be promoted as long as her transition from Reserve to AD was within 24 months.  She states she was eligible to be promoted unless she was excluded by the Secretary of the Army from the ADL for promotion.  She concludes by stating that she has coordinated with her congressman and she has received responses from the U.S. Army Human Resources Command (USAHRC) in Alexandria, VA and St. Louis, MO, both of which are not in compliance with Tile 10, U.S. Code, section 620, paragraph (d) 24 month rule, especially during war.

3.  The applicant provides, in support of her application, a copy of USAHRC, St. Louis, Orders M-09-503566, dated 15 September 2005; USAHRC, St. Louis, Orders A-04-690369, dated 26 April 2006; USAHRC, St. Louis, Orders 
B-05-803506, dated 20 May 2008; USAHRC, St. Louis, Orders B-05-806506R, dated 27 August 2008; a letter from USAHRC, St. Louis, Chief, DA Promotions, dated 24 December 2008; and a letter from the Office of the Deputy Chief of Staff, G-1, Washington, DC, Chief, Officer Division, dated 18 February 2009.



CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as a second lieutenant in the U.S. Army Reserve (USAR) on 5 June 1987.  She was subsequently promoted to major on 
1 July 2001.

2.  The applicant submitted a copy of Orders M-09-503566, dated 15 September 2005, which show she was ordered to AD for a period not to exceed 1 year in support of Operation Noble Eagle.  On 14 July 2006, she was honorably released from active duty and returned to the USAR.

3.  The applicant submitted a copy of Orders A-04-690369, dated 26 April 2006, which show she was ordered to AD with a report date of 15 July 2006 in a voluntary indefinite status with a minimum 3-year AD service obligation.  She entered AD on 15 July 2006.

4.  The applicant's record shows she was considered and selected for promotion to LTC by the Reserve Component Selection Board (RCSB) which convened on 11 September 2007 and recessed on 27 September 2007.

5.  Orders B-05-803506, dated 20 May 2008, were published promoting the applicant to LTC with an effective date and date of rank of 30 June 2008.

6.  Orders B-05-803506R, dated 27 August 2008, revoked Orders B-05-803506 that promoted the applicant to LTC.

7.  The applicant submitted a letter, dated 24 December 2008, wherein the Chief, DA Promotions advised a Member of Congress that the applicant was selected for promotion by the 2007 LTC RCSB.  Promotion orders were issued on 20 May 2008, with an effective date and date of rank of promotion on 30 June 2008, the date she met the 7 years time in service requirement.  In August 2008, it was revealed that the applicant had been removed from the RASL and called to AD in a voluntary status with a minimum 3-year active duty obligation.  The AD orders were issued on 26 April 2006 with a 15 July 2006 report date.  The last sentence on page two of the orders state that the individual is relieved from the USAR Control Group Individual Mobilization Augmentation (IMA) on the effective date of AD.  The letter continues to state that upon removal from the IMA, which is a component of the RASL, on 15 July 2006 the applicant was assigned to the ADL. 

8.  The letter went on to state that Title 10, Chapter 14301(a) states an officer is eligible for promotion consideration by a Reserve board only if (1) the officer is on the RASL and (2) during the 1-year period ending on the date the board convenes the officer continuously performed service on either the RASL or the ADL (or a combination of both lists).  The applicant met the requirement under rule (2).  However, due to the fact she was removed from the RASL and assigned to AD prior to the convening of the selection board she was not eligible for the promotion under rule (1); therefore, the promotion orders were revoked on
27 August 2008.  The applicant was aware of her ineligibility for promotion consideration by a Reserve promotion board as noted in her correspondence to the USAHRC, dated 1 March 2007.  

9.  The letter concluded by stating that Title 10, Chapter 36, Section 620 referenced by the applicant's correspondence states Army Reserve officers who have been ordered to active duty may be excluded from the ADL by the Secretary of the Army.  As of this date the Secretary of the Army has not initiated action to exclude Reserve officers from the ADL.  Army Regulation 600-8-29 (Officer Promotions) referenced in the applicant's correspondence to the USAHRC, dated 1 March 2007, pertains to AD promotions.

10.  The applicant submitted a letter, dated 18 February 2009, from the Office of the Deputy Chief of Staff, Officer Division, G-1, Washington, DC, which advised a Member of Congress that the applicant, a former Reserve officer, volunteered on 15 July 2006 for the Army's Call to AD program at which time she was removed from the RASL and transferred to the ADL.  As such, the applicant is currently a member of the Active Army and as of that date she was subject to the applicable provisions of law and Army regulations that govern active component promotions.  Hence, the applicant cannot be promoted, by law, against the RASL.  Additionally, the applicant's promotion consideration and subsequent selection by the Calendar Year 2007 RCSB was invalid because the applicant was not assigned to the RASL on the convening date of the board.  The applicant was however considered for promotion to LTC in the Active Army in 2007 and 2008, but was not selected both times.  The letter also states that the correspondence received from the Chief, DA Promotions was thorough and accurate.  There are no provisions or exceptions within the law or policy to allow the applicant's promotion to LTC under these circumstances.  The applicant has been selectively continued in her current grade for 3 years beginning 12 August 2008 and for the next 3 years she will be considered annually for promotion to LTC in the Active Army.

11.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officer Other Than General Officer) prescribes the policies and procedures for promotion of Reserve officers.  The regulation states that to be eligible for consideration for promotion to the next higher grade, an Army National Guard or USAR officer must have continuously performed service on either the RASL or the ADL (or a combination of both lists) during the 1- year period ending on the convening date of the promotion board and must meet the time in grade requirements as appropriate.

12.  Additionally, the same regulation states an officer will be removed from a promotion list if the officer was not in a Reserve status or was in an active status in error at the time of consideration.  A promotion advisory board is not required for a determination that an officer was ineligible for consideration.

13.  Title 10, U.S. Code, section 12301(d) specifies that an authority designated by the Secretary concerned may order a member of a Reserve Component under his/her jurisdiction to active duty, or retain him/her on active duty, with the consent of the member.

14.  Title 10, U.S. Code, section 14317(e) specifies that USAR officers ordered to active duty in time of war or national emergency, may, if eligible, be considered for promotion by a mandatory promotion board convened under section 14101(a) (convene a promotion board to recommend for promotion officers on the RASL) for not more than 2 years from the date the officer is ordered to active duty.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to reinstatement of her RASL promotion to LTC.  She has not shown error, injustice, or inequity for the relief she now requests.

2.  The evidence of record shows that the applicant was ordered to AD from the USAR for a minimum of 3 years.  She entered on AD on 15 July 2006.  She was erroneously considered and selected for promotion to LTC by the 2007 RCSB which convened after her placement on the ADL.  Based on her entry on assignment to the ADL, her promotion selection on the RASL was then revoked.  She was subsequently considered and not selected for promotion to LTC on the ADL in 2007 and 2008.  In accordance with regulatory guidance, since she was on the ADL the authority for promotion to the next higher grade was Army Regulation 600-8-29.  Only officers on the RASL are promoted under the authority of Army Regulation 135-155.  The revocation of the applicant's promotion to LTC from the RASL was correct and created no error or injustice.

3.  The provisions of Title 10, section 620(d) were not violated.  That section of the law gives the Service Secretary discretion on whether or not to exclude an officer who would otherwise be placed on the ADL from that list (that is, to keep the officer on the RASL).  It appears that as of this date the Secretary of the Army has not initiated action to exclude Reserve officers from the ADL.

4.  Based on the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090012264



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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