IN THE CASE OF:	  

		BOARD DATE:	  25 May 2010

		DOCKET NUMBER:  AR20090016280 


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 correction of his records to show his date of rank (DOR) to captain as 1 October 1997.  Based on this correction, he further requests his DOR to MAJ be adjusted accordingly.

2.  The applicant states he was selected for promotion to captain before he was released from active duty (REFRAD) but he was not promoted while on active duty because his selection sequence number was not reached before he transferred to the Individual Ready Reserve (IRR).  He states that when he transferred to an active status in a troop program unit (TPU) a few months later, he expected to be promoted to captain.  He states he was then told he had to wait an additional four years because he fell under the Reserve Components time-in-grade requirements. 

3.  The applicant provides a copy of:

* U.S. Total Army Personnel Command, Alexandria, VA, Order Number 259-041, dated 16 September 1997
* U.S. Army Human Resources Command, St. Louis (HRC-STL), MO, memorandum, subject:  Promotion as a Reserve Commissioned Officer of the Army, dated 8 November 2001
* HRC-STL, Orders B-08-805116, dated 4 August 2008
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)


CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant entered active duty on 21 September 1993, he was REFRAD on 20 September 1997, and he transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.  The applicant's DOR for first lieutenant was 25 September 1995.

3.  The applicant was promoted to the rank of captain in the U.S. Army with an effective date and date of rank of 1 October 1997.  The order stated the promotion was in the component in which the officer was serving.  It further stated the promotion was not valid and would be revoked if the officer concerned was not in a promotable status on the effective date of the promotion.

4.  The applicant was transferred from the USAR Control Group (Reinforcement) to a troop program unit, effective 28 July 1998.

5.  The applicant was promoted to the rank of captain as a Reserve Commissioned Officer of the Army, effective 29 July 2001.

6.  The applicant was promoted to the rank of major, effective 28 July 2008, with a DOR of 28 July 2008.

7.  In the processing of this case, on 4 December 2009, an advisory opinion was obtained from HRC-STL, Chief, Special Actions Branch, DA Promotions.  The advisory official indicated the applicant's DOR to first lieutenant was
25 September 1995.  The advisory official further stated:

	a.  The applicant was considered and selected for promotion to captain off the active duty list (ADL).


	b.  The board was approved on 20 August 1997.

	c.  The applicant was REFRAD on 20 September 1997.

	d.  He was transferred to the IRR, effective 21 September 1997, and his active duty selection transferred with him as well.

	e.  His Reserve promotion eligibility date (PED) became 24 September 2000 so long as he remained in the IRR.

	f.  On 28 July 1998 he transferred to a TPU and could have been promoted when he was assigned to a captain position.

8.  HRC-STL stated that the applicant needed to furnish a document showing when he was assigned to a captain position (a Unit Manning Report or Department of the Army (DA) Form 2B [Personnel Qualification Record - Officer]).  HRC-STL further stated that had the applicant informed them of his active component selection, he would not have been considered by the 2000 Reserve Component Selection board.

9.  The HRC-STL advisory official stated that if the applicant could furnish proof of serving in a higher grade position prior to May of 2000 when he was flagged for Army Physical Fitness Test failure, he may be eligible for an adjusted DOR to captain.   

10.  In an HRC-STL follow-on advisory opinion, dated 3 March 2010, the advisory official stated that the unit manning reports submitted by the applicant are current and for someone else.  The advisory official indicated that Officer Evaluation Reports are not used to verify promotion information since no paragraph and line number or Table of Distribution and Allowances (TDA) information is contained on these reports.  The advisory official further stated that based on these documents not being sufficient, denial was recommended.

11.  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 submit a response.

12.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that an officer serving in the grade of first lieutenant on the ADL who has been selected for promotion to 
captain but who has not been promoted by the time the officer transfers to the 


reserve active status list (RASL) in the same competitive category, will be placed on an appropriate Reserve of the Army promotion list.  The effective date of promotion and date of rank will be the same as if the officer had been selected to the same grade by a promotion board for RASL officers.

13.  The regulation also specifies that a TPU officer must be serving in a position requiring the higher grade.  This regulation specifies that an officer is promoted after selection, if all qualifications are met.

14.  Title 10, U.S. Code, section 14317(c), provides that an officer who is on the ADL and is on a promotion list and who, before being promoted, is removed from the ADL and placed on the RASL of the same armed force and in the same competitive category, shall be placed on an appropriate promotion list and promoted in accordance with prescribed regulations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was voluntarily REFRAD on 20 September 1997.  As he was not on active duty on 1 October 1997, he was not eligible for promotion to captain on the ADL.  When he was REFRAD and transferred to the USAR Control Group (Reinforcement), he was a first lieutenant with a DOR of 25 September 1995.  As such, he should have been placed on the Captain Reserve Component Active-Status Promotion List and he would have been promoted to captain upon reaching his PED for the Control Group.

2.  Since the applicant was assigned to a TPU before his PED, he was required to be assigned to a higher grade position and be in a promotable status to be promoted.  The applicant provided Officer Evaluation Reports and current unit manning document extracts in an attempt to show he served in a higher grade duty assignment prior to his being suspended from favorable personnel actions in May 2000.  However, these documents are not sufficient evidence to verify he was assigned to a captain position prior to being suspended from favorable personnel actions since they do not contain paragraph and line numbers.

3.  HRC-STL indicated the applicant was not eligible for promotion on his PED due to failure of the Army Physical Fitness Test.  Absent evidence to the contrary, it would appear that once he met eligibility requirements he was promoted to the rank of captain effective 29 July 2001.  As such, based on available evidence his DOR to captain was correctly established.

4.  Based on his DOR to captain his PED for major would have been 7 years later, or on 28 July 2008.  He was promoted to major on that date.  Since the applicant's DOR to captain is not being adjusted, there is no basis for adjusting his DOR to major.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x____  ____x____  ____x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________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)                                         AR20090016280



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ABCMR Record of Proceedings (cont)                                         AR20090016280



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