IN THE CASE OF:	

		BOARD DATE:	  25 March 2010

		DOCKET NUMBER:  AR20090012774 


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, that her records be corrected to show that she did not have a break in service between her transition from active duty to the U.S. Army Reserve (USAR).

2.  The applicant states, in effect, that U.S. Army Human Resources Command, Alexandria, VA (HRC-Alexandria) failed to forward her name to the U.S. Army Human Resources Command, St. Louis, MO (HRC-St. Louis) in a timely manner which prevented her seamless transition from the active component (AC) to the Reserve Component (RC).  She further claims the break in service that resulted was administrative and not actual and must be corrected swiftly in order for her to be considered by the lieutenant colonel (LTC) Reserve Component Selection Board (RCSB) scheduled to convene in September 2009.

3.  The applicant further claims she resigned her Regular Army (RA) commission to transfer from the AC to the RC and was ordered to a Troop Program Unit (TPU) in conjunction with her discharge from the AC.  She also states that she completed the necessary paperwork, received a statement transferring her to the RC and orders assigning her to a TPU, and it was only after the RC pay system allowed her to be paid that the erroneous break in service was discovered.  She also states she has documentation confirming her name was sent to the RC in January 2009; however, this did not occur.  She further states she had orders transferring her from the AC to the RC TPU, and this assignment and transfer to the RC was confirmed on her DD Form 214 (Certificate of Release or Discharge from Active Duty).
4.  The applicant further states her name was included on the 2009 AC LTC promotion list; however, the list was released after her discharge from the AC.  She is now requesting her records be corrected by showing no break in service and that she be allowed to be considered for promotion by the September 2009 LTC RCSB.

5.  The applicant provides the following documents in support of her application:  self-authored statement; electronic mail (e-mail) messages; DD Form 214; Office of the Chief, Army Reserve, Washington, DC memorandum, dated 15 May 2007; Army Reserve Deployment Stabilization Statement, dated 2 June 2009; HRC-Alexandria Memorandum for Record, dated 21 August 2008; Headquarters, Fort Myer Military Community, Arlington, VA, Orders 014-0002, dated 14 January 2009; Honorable Discharge Certificate, dated 1 June 2009; DA Form 5690-R (Reserve Component Career Counselor Interview Record), dated 29 April 2009; DA Form 5691-R (Request for Reserve Component Assignment Orders), dated 29 April 2009; DA Form 1380 (Record of Individual Performance of Reserve Duty Training), dated 11 June 2009; DA Forms 71 (Oath of Office - Military Personnel) dated 2 June 2009 and 29 July 2009; and HRC-St. Louis memorandum, dated
27 July 2009.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows she was commissioned a second lieutenant on 10 June 1993 and entered active duty in that status on 12 June 1993.

2.  On 29 April 2009, during her active duty separation processing, she completed a DA Form 5691-R requesting appointment in the USAR in conjunction with her discharge from the RA on 1 June 2009.

3.  On 1 June 2009, the applicant was honorably discharged from the RA, in the rank of major, after completing 15 years, 11 months, and 20 days of active duty service.  Item 9 (Command to which transferred) of the DD Form 214 she was issued at the time contains the entry "USACE CRU CELL A (W8LZ02), 441
G STREET NW WASHINGTON, DC 20314."

4.  On 2 June 2009, a DA Form 71 was executed appointing the applicant a major (MAJ) in the USAR, and she reported to her USAR-TPU to begin her USAR service.

5.  On 14 July 2009, the AC LTC promotion selection board results were released.  This document shows the applicant was selected for promotion to LTC in the AC.

6.  An HRC-St. Louis memorandum, dated 27 July 2009, notified the applicant she was appointed a Reserve Commissioned Officer of the Army in the rank of major and that her appointment had been approved by the Secretary of Defense on 27 July 2009.  It further informed her that she had been granted a de facto status appointment date of 2 June 2009.

7.  On 29 July 2009, the applicant completed a second Oath of Office for her RC appointment.  

8.  In connection with the processing of this case, on 10 November 2009 an advisory opinion was received from the Deputy Chief, Operations and Plans Division, HRC-Alexandria.  This official stated that the applicant's break in service was negated when she was appointed with a de facto date of 2 June 2009.  He stated that the applicant's DOR of 1 April 2004 placed her below the zone (BZ) for promotion to lieutenant colonel (LTC).  This official further states that as of the convening date of the 2009 LTC board in September 2009, the applicant did not have the requisite 12 months on the Reserve Active Status List (RASL).  Therefore, she was not eligible to be considered by the board, regardless of any break of service or belated appointment date.  The official further states that HRC wants to provide relief where possible by law and policy and is prepared, should the Army Review Boards Agency so direct, to conduct a special review board.

9.  The advisory opinion was forwarded to the applicant for information and to allow her the opportunity to submit comments or a rebuttal.  On 1 December 2009, the applicant submitted a response to the advisory opinion.  She states she is seeking relief from the Board and is requesting she be granted a USAR appointment date of 2 June 2009 in order to correct the erroneous break in service shown in her record.  She also states the break in service resulted from a communications and data transfer breakdown between the Separations Branch at HRC, Alexandria and the Reserve Appointment Branch at HRC-St. Louis, which prevented her inclusion on the June 2009 Reserve scroll, subsequently resulting in a scroll approval being dated well after her separation from active duty.

10.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) specifies that in order to be promoted to lieutenant colonel an individual must have completed 7 years of time in grade as a MAJ and the required military education on or before the convening date of the respective promotion board.  

11.  Paragraph 2-5 of the same regulation provides guidance on eligibility for consideration for promotion.  It states in pertinent part, in order 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 Reserve Active Status List (RASL) or Active Duty List (ADL), or a combination of both, during the last one year period ending on the convening date of the promotion board, and must meet the time in grade (TIG) requirements outlined in tables
2-1 or 2-3 of the regulation.

12.  Section III of Army Regulation 135-155 contains guidance on promotion reconsideration boards.  It provides that officers and warrant officers who have either failed to be selected for promotion, or who were erroneously not considered for promotion through administrative error may be reconsidered for promotion by either a promotion advisory board or a special selection board (SSB).  These boards are convened to correct/prevent an injustice to an officer or former officer who was eligible for promotion but whose records through error, were not submitted to a mandatory promotion selection board for consideration.

13.  Paragraph 2-10 of the same regulation provides guidance on mandatory selection boards.  It states, in pertinent part, that selection boards considering officers for promotion to MAJ, LTC, or COL may recommend outstanding officers from below the zone of consideration to provide officers of exceptional ability an opportunity to advance quickly to more responsible positions, help retain high quality officers, and give officers an incentive to perform at their highest potential. It further stipulates that failure to be selected will neither count as a nonselection nor reflect unfavorably on an officer.  SSB will not consider officers for below the zone promotion.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that her records should be corrected to show she had no break in service between her transition from AC to the RC was carefully considered and found to have merit.

2.  The evidence of record confirms that through no fault of her own, the applicant's appointment in the RC was not processed in a timely manner and that the Secretary of Defense did not approve her appointment in the RC until 27 June 2009, with a "Defacto" date of 2 June 2009, which resulted in her records incorrectly showing a break in service from 2 June 2009 to 27 July 2009. As a result, it would be appropriate to correct her record to show she was appointed in the USAR on 2 June 2009 and to provide her all benefits as a result of this correction.


3.  By regulation in order for a USAR member to be eligible for consideration for promotion to the next higher grade, the individual 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 TIG requirements.   The evidence of record confirms the applicant had one year of continuous service on either the ADL or RASL prior to the convening date of the 2009 RCSB.

4.  Although the governing regulation does not provide provisions for consideration by an SSB for officers who are below the zone, given the applicant was erroneously omitted from consideration due to an error in her RC appointment, it would be appropriate to allow her record to be considered for promotion to LTC under the 2009 LTC RCSB as an exception to policy in the interest of justice and equity.

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 a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing that immediately after her 1 June 2009 discharge from the RA she was appointed a major in the USAR on 2 June 2009,

   b.  placing her records before a Special Selection Board for promotion consideration to lieutenant colonel under the 2009 LTC RCSB criteria as an exception to policy,

	c.  if selected for promotion to lieutenant colonel major by the SSB, establishing her lieutenant colonel promotion effective date and date of rank as if 

she had been originally selected by the 2009 LTC RCSB, and by providing any back pay and allowances due as a result, and

	d.  if not selected for promotion she should be so notified.



      __________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)                                         AR20090012774



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ABCMR Record of Proceedings (cont)                                         AR20090012774



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