IN THE CASE OF:	

		BOARD DATE:	  11 March 2010

		DOCKET NUMBER:  AR20090012708 


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 reconsideration of his earlier request for correction of his date of rank (DOR) as a lieutenant colonel (LTC) from 24 July 2008 to 16 January 2008.

2.  The applicant states that his promotion packet was erroneously removed from consideration by a position vacancy board (PVB).  He also states that he was the battalion commander for the 2nd Battalion, 230th Infantry, and was the only officer applying for the position of battalion commander on the October 2007 PVB.  This position was not filled and continued to exist until officials at the U.S. Army Human Resources Command – St. Louis (USAHRC-STL) discovered that his packet was erroneously removed from the October 2007 PVB.  His packet was then placed before the March 2008 PVB for the same position, at which time he was selected.  He adds that he was selected in January 2007 by the 88th Regional Readiness Command (RRC) LTC Command Assignment Board for the position of battalion commander, 2nd Battalion, 230th Infantry.  He was already filling this position when he was supposed to be considered by the October 2007 PVB and was the only officer assigned to that unit qualified to apply for the position under the 2007 PVB.  The guidance and instructions for the October 2007 and March 2008 PVBs were the same.

3.  The applicant provides a copy of a memorandum, dated 24 January 2007, subject:  Results of the LTC Command Assignment Selection Board, and a copy of the 2nd Battalion, 230th Infantry, Unit Manning Report, dated 7 September 2009, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080015404 on 3 February 2009.

2.  The applicant provides a copy of the 2nd Battalion, 230th Infantry, Unit Manning Report, dated 7 September 2009, which was not previously considered. 
Therefore, it is considered new evidence and, as such, warrants consideration by the Board.

3.  With prior enlisted service, the applicant's records show he was appointed as a second lieutenant, infantry, in the U.S. Army Reserve (USAR) and executed an oath of office on 6 May 1988.  He subsequently completed several training courses, served in various command or staff positions, and was promoted to major on 21 August 2002.

4.  On 24 January 2007, he was selected for battalion command by the LTC Command Assignment Board that convened by the 88th RRC on 19 January 2007.

5.  On 23 February 2007, the USAR announced the application instructions for the October 2007 PVB for troop program unit positions.

6.  His DA Form 2-1 (Personnel Qualification Record) shows he assumed command of the 2nd Battalion, 230th Infantry, on 5 August 2007.

7.  His records contain an electronic mail exchange with an official at USAHRC-STL that confirms he was erroneously deleted from the October 2007 PVB and that his packet would be considered by the next PVB (March 2008).

8.  On 29 July 2008, USAHRC-STL announced the results of the March 2008 PVB which convened on 26 March 2008.  The applicant was selected for promotion to LTC.

9.  On 20 August 2008, USAHRC-STL published a promotion order that announced his promotion to LTC with an effective date and DOR of 24 July 2008.

10.  The applicant submitted a copy of the 2nd Battalion, 230th Infantry, Unit Manning Report, dated 7 September 2007, that shows he was slotted in the battalion commander position.

11.  Army Regulation 135-155 (Army National Guard and USAR Promotion of Commissioned Officers and Warrant Officer Other than General Officers) prescribes the policies and procedures for the promotion of Reserve Component officers.  The regulation specifies the USAR unit position vacancy promotion system is designed to promote officers to fill vacancies in USAR units that cannot be filled by local commanders with qualified officers of the authorized grade.  Occasionally, assignments cannot be made from local resources (officers assigned to units and other local non-unit officers on the Reserve Active Status List).  In this event, the commander of the unit experiencing the position vacancy will send to the appropriate area commander the names of all USAR unit officers in the next lower grade who meet promotion consideration/eligibility requirements.  Promotion to fill authorized valid position vacancies may be filled through promotion of the best-qualified and geographically available officer to the grades of captain through colonel.  All officers in the next lower grade must have met the minimum time in grade for promotion to the next higher grade and be geographically available (non-mobilized) to serve in the position for which considered.

12.  Army Regulation 135-155 also specifies that the unit commander will initiate position vacancy promotion procedures and forward a memorandum listing all unit officers eligible for promotion consideration.  The memorandum will include the following information:  rank of position, branch, area of concentration, position title, unit, unit identification code, location of unit, table of organization and equipment/table of distribution and allowances number, paragraph/line number, and date of position vacancy.  An officer is not eligible for consideration if he or she was not approved for the position per Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers).

13.  Army Regulation 135-155 also specifies that special selection boards (SSB) will convene and consider commissioned officers who were erroneously not considered and reconsider commissioned officers who were considered but not selected by mandatory promotion boards.  The regulation does not provide for promotion consideration by an SSB for erroneous non-consideration by a PVB, only by a mandatory promotion board.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DOR as an LTC should be adjusted from 24 July 2008 to 16 January 2008.

2.  The evidence of record shows he submitted a promotion packet before a PVB; however, his packet was erroneously removed and he was not considered by the October 2007 PVB.
3.  Upon receipt of the notification of erroneous action, the March 2008 PVB considered and selected him for promotion to LTC.  He was promoted to LTC on 24 July 2008, the date of approval of that board.

4.  He occupied the position of battalion commander on 5 August 2007 and remained in that position during the October 2007 and March 2008 boards.  Although the regulation does not provide for promotion consideration by an SSB for erroneous non-consideration by a PVB, as matter of equity his DOR should be corrected to show 16 January 2008, the date of approval of the October 2007 PVB.  Therefore, his records should be corrected to reflect that date.

BOARD VOTE:

____X__  ___X____  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR's decision in Docket Number Docket Number AR20080015404, dated 3 February 2009, by showing he was promoted to LTC with a promotion effective date and DOR of 16 January 2008 with entitlement to all back pay and allowances.



      __________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)                                         AR20090012708



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ABCMR Record of Proceedings (cont)                                         AR20090012708



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