IN THE CASE OF:	

		BOARD DATE:	  19 May 2010

		DOCKET NUMBER:  AR20090014720 


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 his date of rank (DOR) for promotion to lieutenant colonel (LTC) be changed from 15 August 2008, to an earlier date between April and June 2008; and that he be provided all back pay and allowances due as a result of this correction.

2.  The applicant states he was mobilized under various orders from August 2006 through 2008.  He made the Fiscal Year 2007 (FY07) LTC Army Reserve Component Selection Board (RCSB) list that was released on 8 January 2008.  He claims under the policy contained in Office of the Chief, Army Reserve (OCAR) Memorandum, dated 18 April 2008, which was in effect at the time, having made the LTC promotion list as a mobilized officer serving on active duty, he should have been promoted to LTC upon being matched against a position of like rank and grade.  

3.  The applicant further claims, effective 8 May 2008, he was matched against a LTC position with his previous Troop Program Unit (TPU), the 75th Division, Houston, Texas, upon his release from active duty, as evidenced by a completed DA Form 4651R (Request for RC Assignment or Attachment) and USARC Form 56-R (Promotion Qualification Statement for USARC Mobilized TPU Officers).  He states an Army Human Resources Command, St. Louis, Missouri (HRC-St. Louis) official advised him he could not be promoted to LTC under his current active duty orders while assigned with his current unit.  


4.  The applicant also claims the same HRC-St. Louis official informed him the 
DA Form 4656R and USARC Form 56-R completed by his former TPU was incorrect and effected his transfer back to the Individual Ready Reserve (IRR) a few days later; however, his assignment history still reflects this assignment.  HRC-St. Louis officials have also advised him he would not be promoted to LTC until he was released from active duty.  He further states United States Army Reserve Command (USARC) G-1 officials reviewed all of his documents and agrees he should have been promoted prior to 15 August 2008, the date of his release from active duty; however, HRC-St. Louis promotion officials disagree. 

5.  The applicant indicates on 13 June 2008, he arranged for another unit, the 104th Regiment, 10th Battalion, to accept him pending his completion of his active duty service and another DA Form 4651R was generated.  

6.  The applicant provides a self authored statement and the 9 enclosures identified in the statement in support of his application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show he initially served in the California Army National Guard (CAARNG) in an enlisted status from 28 May 1980 through 19 August 1988, at which time he was honorably discharged to accept an appointment as a commissioned officer.

2.  On 20 August 1988, the applicant was appointed a second lieutenant in the United States Army Reserve (USAR), Field Artillery (FA) Branch.  He was promoted to first lieutenant on 19 August 1991, to captain (CPT) on 23 March 1995, and to major (MAJ) on 22 March 2002.

3.  The applicant's Official Military Personnel File (OMPF) contains the following five HRC assignment orders and amendments issued on the dates indicated and ordered him to active duty under the provisions of Title 10, United States Code, Section 12301(D) and authorized his active duty service from 27 August 2006 through 27 August 2008:

* Order Number A-07-618088, dated 14 July 2006
* Order Number A-07-618022A01, dated 25 July 2006
* Order Number A-07-618088A02, dated 31 August 2006
* Order Number A-03-707768, dated 28 March 2007
* Order number A-03-707768A01, dated 12 June 2007.


4.  The applicant provides a DA Form 4651R which shows he initiated a request for transfer from the IRR to a LTC position with 75th Division, Battle Command Training Division.  This document while undated shows it was transmitted by facsimile on 30 April 2008, and he includes an HRC assignment history which shows his assignment to this unit as early as 8 May 2008.

5.  The applicant provides a second DA Form 4651 showing he initiated a request for his transfer from the IRR to a LTC position with the104th Regiment, 10th Battalion on 11 June 2008, with an effective date of 8 May 2008.  The gaining unit commander of the 104th Regiment, 10th Battalion authenticated this document with her signature on 13 June 2008.

6.  The applicant provides multiple electronic mail (e-mail) messages between himself and officials of HRC and USARC, dated from 9 May to 5 August 2008.  These documents show USARC officials’ attempts to effect the applicant’s promotion to LTC based on his being mobilized at the time of his selection for promotion to LTC; and the refusal of HRC officials to promote the applicant until he moved to a TPU or DIMA higher graded position.  

7.  During the processing of this case, an advisory opinion was obtained from the Chief, Special Actions Branch, DA Promotions, Reserve Components (RC), HRC-St. Louis.  This official indicated the applicant was considered for promotion by the FY07 LTC RCSB that convened on 11 September 2007, and was promoted to LTC in orders, dated 26 August 2008, with an effective date and DOR of 15 August 2008, the date he was assigned to the higher graded position. He further indicated the applicant received the earliest DOR authorized by the Office of Promotions and recommended denial of his request.

8.  On 11 February 2010, the applicant provided his response to the advisory opinion and stated HRC failed to address their interpretation of USARC G-1 policy addressing mobilized Soldiers, his situation, and his pending assignments to the higher graded position that he twice secured.  He further states he met the criteria found in the USARC G-1 policy and HRC continually fails to offer a reason for overriding the USARC G-1 policy.  He further indicates HRC failed to properly address official records security and authorization by allowing someone within that command to change/rescind the in-processing of his DA Form 4651 as an official assignment.  He finally requests the Board favorably consider all the information he submitted to grant him promotion to LTC the earliest date in May 2008.


9.  The applicant also states that there were other officers in his unit that were promoted although they were not in positions commensurate with the next higher grade.  He also indicates that there has been a multitude of communications via e-mail, telephone, and personal visits to the Division G-1 and the Human Resource Officer concerning this issue and that after 10 months, he feels he is being discriminated against.

10.  On 18 April 2008, the Deputy Chief of Staff (DCS), G1, OCAR issued Memorandum, Subject:  Promotion of Mobilized Officers RC TPU Officers.  This policy memorandum pertained only to promotion of CPTs through colonels (COL) and warrant officers in the grade of chief warrant officer two (CW2) to chief warrant officer four (CW4) who were mobilized under Title 10 USC, Sections 12301(a), 12304, 12302, or on voluntary active duty under Section 12301(D).

11.  The DCS, G-1, OCAR (or USARC G1) memorandum provided a mobilized officer on an approved mandatory selection board promotion list may be promoted when matched against an RC vacant position of the higher grade.  Mobilized TPU and Individual Mobilization Augmentee (IMA) officers are not required to be “assigned” to a higher grade position; rather they must be “matched” against a higher grade position prior to promotion and assigned to that higher grade position upon demobilization.  Officers who decline or are unwilling or unable to occupy the higher grade position to which he/she was matched, will be given 180 days to be assigned to another higher graded position or be reassigned to the IRR.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his LTC DOR should be adjusted to a date between April and June 2008 based the DCS, G-1, OCAR policy memorandum issued on 18 April 2008, and being matched to a LTC position while mobilized after having been selected for promotion by the FY07 LTC RCSB has been carefully considered and found to have merit.

2.  The current policy provides that a mobilized TPU or IMA officer on voluntary active duty under Title 10, USC, Section 12301(D) on an approved mandatory selection board promotion list may be promoted immediately when matched against a vacant position of the higher grade for which promoted.  Upon demobilization, the TPU officer must actively fill that position within 180 days.

3.  The evidence of record confirms that the applicant was an IMA officer mobilized under Title 10, USC, Section 12301(D), who was selected for promotion to LTC by the FY07 RCSB approved on 21 December 2007, as evidenced by his mobilization orders and the HRC-St. Louis advisory opinion.  The two DA Forms 4651 and HRC assignment history report also confirm the applicant was slotted or matched against a valid LTC/O-5 vacancy position on 8 May 2008.  However, the applicant was not promoted to LTC until 15 August 2008, the date of his assignment to that position, as indicated by the HRC, DA Promotions advisory opinion.

4.  Under the 18 April 2008 DCS, G-1, OCAR policy memorandum, the requirement to fill a position authorized the higher grade would have been waived and the applicant would have been promoted to LTC effective and with a DOR of 8 May 2008, the date he was matched against the RC vacant position of the higher grade.  Therefore, it would be appropriate and serve the interest of justice and equity to correct his record accordingly.  It would also be appropriate to provide him all back pay and allowances due as a result. 

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 adjusting the effective date and date of rank of his promotion to Lieutenant Colonel to 8 May 2008, and by providing him all back pay and allowances due as a result.






      _______ _   _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)                                         AR20090014720





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090014720



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1