IN THE CASE OF:	

		BOARD DATE:	  25 February 2010

		DOCKET NUMBER:  AR20090015716 


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 adjustment of his date of rank (DOR) as a lieutenant colonel (LTC) from 17 May 2007 to 26 January 2004.

2.  The applicant states, in effect, that he was selected for promotion to LTC by a Department of the Army (DA) Special Selection Board (SSB) that convened on
5 August 2004 based on the 2003 criteria.  He was granted a military education waiver when his records were considered by this board.  Upon accepting this promotion, his DOR was established as 17 May 2007, the date he completed his military education.  However, on 31 August 2006, the Director of Military Personnel Management at the Office of the Deputy Chief of Staff (DCS), G-1, issued a memorandum that deemed the delay in promotion due to the granting of a military education waiver was legally objectionable.  Accordingly, new guidance was issued with respect to promotion delay procedures.  Based on this new guidance, his DOR should be adjusted to 26 January 2004.  This would allow him to compete for promotion, battalion command, and professional development courses with his year group.

3.  The applicant provides a copy of the DCS-G1 memorandum, dated 31 August 2006; and a copy of the U.S. Army Human Resources Command (USAHRC), St. Louis, MO, memorandum, subject:  Notification of Promotion Status, dated
28 September 2005, in support of his request.




CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he was appointed as a second lieutenant in the U.S. Army Reserve (USAR), he executed a DA Form 71 (Oath of Office - Military Personnel), and he entered active duty on 27 April 1984.  He subsequently completed several training courses, served in various command and staff positions, and he attained the rank/grade of captain (CPT)/O-3.  He was honorably released from active duty in the rank of CPT on 1 June 1995 under the Early Release Program-Special Separation Benefit and he was transferred to the USAR Control Group (Reinforcement).

2.  On 15 July 1996, by memorandum, the U.S. Total Army Personnel Command St. Louis, notified the applicant that he was promoted as a USAR commissioned officer to major (MAJ), effective 5 April 1996.

3.  By memoranda, on 28 February 2002, 4 February 2003, and 19 February 2004, the applicant was notified that he was considered for promotion to LTC by the 2002, the 2003, and the 2004 Reserve Components Selection Board (RCSB) but he was not selected.

4.  On 29 July 2004, the applicant was honorably discharged from the USAR.

5.  On 31 August 2005, an official at USAHRC-St. Louis requested the applicant's discharge orders from the USAR be revoked and stated that the applicant had been recommended for promotion by the 2004SS08R DA SSB which adjourned on 5 August 2004.

6.  On an unknown date, the applicant's discharge orders were rescinded and he was reassigned the U.S. Army Corps of Engineers, Washington, DC, on 16 March 2006, in an Individual Mobilization Augmentee (IMA) status.

7.  On 17 May 2007, the applicant successfully completed the U.S. Army Command and General Staff Officer Course (CGSOC).

8.  On 29 August 2007, USAHRC-St. Louis published Orders B-08-706247, announcing the applicant's promotion to LTC with an effective date and DOR of 17 May 2007.  The orders listed additional instructions which reflect that the applicant was considered by the 2004 SSB that adjourned on 5 August 2004.

9.  On 13 October 2008, the applicant was ordered to a contingency operation for active duty operational support in support of Operation Enduring Freedom and he was assigned to the Office of the DCS, G-1.

10.  In the processing of this case, on 19 October 2009, an advisory opinion was obtained the Chief, Special Actions Branch, DA Promotions, USAHRC-St. Louis. The advisory official stated that:

	a.  The applicant was selected for promotion to LTC by the August 2004 SSB under the 2003 criteria.  At the time of his selection he was granted an education waiver with the stipulation that the education must be completed within 18 months of the approval date of the promotion board.  The SSB was approved in September 2005, thereby giving the applicant until March 2007 to complete his military education.  He completed his education on 17 May 2007 and he was issued promotion orders on 29 August 2007 announcing this promotion with an effective date and DOR of 17 May 2007.

	b  In August 2006, a legal review by the Office of the DCS, G-1, ruled that the delay of promotion under the 18 month stipulation was legally objectionable.  An officer selected for promotion under the stipulation who had a promotion eligibility date (PED) prior to the approval date of the board criteria for which he/she was selected was granted the approval date of the board as his/her DOR.  The applicant was selected for promotion by an SSB under the 2003 criteria.  The 2003 LTC RCSB was approved on 26 January 2004.  Based on the approval date of the board and the G-1 guidance, the advisory official recommended the applicant's DOR be adjusted from 17 May 2007 to 26 January 2004.  Additionally, once the DOR is adjusted, his file should be evaluated for eligibility for special selection board consideration to colonel (COL) under the 2007 and 2009 criteria.

11.  On 13 January 2010, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

12.  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.  Paragraph 2-15b authorizes waivers for non-statutory military education requirements.  Table 2-1 of this regulation provides for the time in grade requirements for promotion of commissioned officers.  It states that for promotion from MAJ to LTC, the minimum number of years in the lower grade is 4 years and the maximum number of years in the lower grade is 7 years.  For promotion from LTC to COL, the minimum number of years in the lower grade is 3 years and the maximum number of years in the lower grade is announced annually (the normal time in grade is 5 years subject to the needs of the Army).


13.  The Office of the DCS, G-1 memorandum, dated 31 August 2006, essentially states that in the past officers granted waivers could be selected but were not promoted until they completed prescribed military education.  However, a recent legal review deemed the delay of promotion under those conditions as legally objectionable.  For LTC boards, the military education requirement is 50 percent completion of legacy CGSOC or 100 percent completion of Intermediate Level Education-Common Core (ILE-CC), or equivalent.  In order to be eligible for a waiver, the officer must have completed at a minimum phases one and two of the non-resident ILE-CC.  Additionally, effective immediately, the memorandum used for those officers granted military education waivers will state that the officer had been granted a waiver for board purposes only.  The memorandum will not include language about promotion delay procedures, specifically that the officer will not be promoted until the required military education had been completed.

14.  Army Regulation 135-155 also specifies that SSBs 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 (both not applicable to this applicant).  The regulation does not provide for promotion consideration by an SSB for erroneous non-consideration by a position vacancy board, only by a mandatory promotion board.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DOR as a LTC should be adjusted from 5 July 2007 to the release date of the September 2005 Reserve SSB.

2.  The evidence of record shows the applicant was selected for promotion to LTC by the August 2004 SSB under the 2003 criteria.  He was granted an education waiver with the stipulation that the required education must be completed before his promotion would be effective.  He completed his education on 17 May 2007 and he was issued promotion orders on 29 August 2007 announcing this promotion with an effective date and DOR of 17 May 2007.

3.  However, based on the DCS, G-1 memorandum, an officer selected for promotion under the stipulation who had a PED prior to the approval date of the board criteria for which he/she was selected was granted the approval date of the board as his/her DOR.  The applicant was selected for promotion by an SSB under the 2003 criteria.  The 2003 LTC RCSB was approved on 26 January 2004.  Therefore, his effective date and DOR should be adjusted from 17 May 2007 to 26 January 2004.


4.  Additionally, once the DOR is adjusted to 26 January 2004, and based on the regulatory guidance of the minimum of 3 years in the lower grade for promotion consideration from LTC to COL, the applicant's file should be evaluated for eligibility for SSB consideration to COL under the 2007 through 2009 criteria.

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 he was promoted to LTC with a promotion effective date and DOR of 26 January 2004 with entitlement to all back pay and allowances; and

	b.  following adjustment of the applicant's DOR to LTC, the applicant's records be submitted to an SSB for promotion reconsideration to COL under the 2007, 2008, and 2009 year criteria.  Additionally:

		(1)  if selected, his records be further corrected by showing he was promoted to COL on his date of eligibility, as determined by appropriate Departmental officials, provided he was otherwise qualified and met all other prerequisites for promotion, and if applicable, that an adequate explanation be 











placed in his official personnel files to show any gap in his officer evaluation reports for the time he had been discharged.

		(2)  if not selected, the applicant 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)                                         AR20090015716



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ABCMR Record of Proceedings (cont)                                         AR20090015716



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