BOARD DATE:	  1 July 2010

		DOCKET NUMBER:  AR20090014250 


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 an adjustment to his date of rank (DOR) for major (MAJ) from 2 June 2004 to 17 July 2003. 

2.  The applicant states that on 30 April 2008, the Army Board for Correction of Military Records (ABCMR) corrected his DOR to captain (CPT) from 25 June 1998 to 25 June 1997.  He adds that the ABCMR forwarded their correction of his DOR to a Special Selection Board (SSB) to consider back dating his DOR to MAJ from 2 June 2004 to an earlier date.  However, he was informed by Human Resources Command, St. Louis (HRC-STL) that he has to show that he was assigned to a MAJ position in order to receive the earlier promotion date.  He offers that the unit Table of Distribution Allowance (TDA) is no longer in existence.

3.  The applicant states that he served as an Environmental Coordination Officer for Headquarters and Headquarters Company, 88th Regional Readiness Command (RRC) from 2 June 2002 to 1 February 2004.  He maintains that the section consisted of one O-5, two O-4, and two O-3 positions and he occupied an O-3 position.  He offers that when he became eligible for promotion to MAJ he moved to an O-4 position.  The applicant adds that if he had been eligible for promotion to MAJ in July 2003, the command would have placed him in an O-4 position.

4.  The applicant provides a copy of ABCMR Docket Number AR20080000528, dated 29 April 2008, and an HRC-STL Promotion Consideration memorandum.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was appointed in the U.S. Army Reserve (USAR) as a second lieutenant on 13 May 1990.  On 30 May 1993 he was promoted to first lieutenant and on 25 June 1998 he was promoted to captain (CPT).

2.  On 2 June 2004, the applicant was promoted to MAJ based on his 25 June 1998 original DOR as a CPT.

3.  ABCMR Docket Number AR20080000528, dated 29 April 2008, approved the applicant's request to adjust his DOR to CPT from 25 June 1998 to 9 June 1997, thereby making him eligible for promotion consideration to MAJ one year earlier.  Based on the adjustment to his CPT DOR, his records were considered by the SSB for selection to MAJ.

4.  An HRC-STL memorandum, Subject:  Promotion Consideration, dated 21 July 2009, stated that an SSB recommended the applicant for promotion to MAJ under the 2003 criteria with a June 2004 DOR.  The memorandum stated that the applicant could receive an earlier date of rank, but not earlier than 17 July 2003.  An AHRC Form 155-R was required indicating the date the applicant was assigned to a MAJ position.

5.  In the processing of this case, an advisory opinion was obtained from the Chief, Special Actions Branch, DA Promotions, HRC-STL.  HRC-STL recommended that the applicant's request be disapproved.  However, HRC-STL recommended that if the applicant provides a promotion qualification statement, ARPC Form 56R, verifying assignment to a higher position on 18 July 2003, his DOR should be changed to 18 July 2003.

6.  On 7 April 2010, the applicant responded to the HRC-STL advisory opinion.  He said that he was not slotted in a MAJ position because he was originally not eligible for promotion until June 2004.  He offered that the 88th RRC had open MAJ slots available in the Engineer or other staff sections within the command and he could and would have been slotted in one of those positions for promotion, as was the case in June 2004.

7.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) states that unit officers selected by a mandatory board will have a promotion date and effective date no earlier than the date the board is approved or the date of Senate confirmation (if required), provided they are assigned to a position in the higher grade. When the board 

approval or, if required, Senate confirmation is before assignment to the position in the higher grade, the effective date and the date of promotion will be the date of assignment to the higher graded position. If the officer voluntarily delays promotion and is later assigned to a higher graded position during the period of delay, the effective date and date of promotion become the date of assignment to the higher graded position.

8.  The same regulation states that the normal service requirement for promotion to MAJ is 7 years in the grade of CPT.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of Record shows that the applicant's DOR to CPT was originally 
25 June 1998.  As such, he was not eligible for consideration to MAJ until June 2004.  However, on 30 April 2008 the ABCMR adjusted his CPT DOR to 9 June 1997 which caused the applicant to be eligible for promotion to MAJ a year earlier (2003).

2.  Notwithstanding the recommendation by the advisory official, it is reasonable to assume that had the applicant known that he was eligible for promotion to MAJ in July 2003, he and/or his unit would have ensured that he was assigned to a higher grade as required by regulation.  Therefore, in the interest of equity and justice, it would be appropriate to adjust the applicant's DOR to MAJ with an effective date of 18 July 2003 by correcting his records to show he was in a MAJ's position on 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 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 the applicant was assigned to a MAJ's position on 18 July 2003;

	b.  adjusting the applicant's MAJ DOR and effective date of promotion to
18 July 2003; and

	c.  paying him all associated back pay and allowances due to this correction.



      __________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)                                         AR20090014250



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ABCMR Record of Proceedings (cont)                                         AR20090014250



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