IN THE CASE OF:	  

		BOARD DATE:	    31 August 2010

		DOCKET NUMBER:  AR20090019274 


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 date of rank (DOR) to lieutenant colonel (LTC) from 12 June 2009 to 23 March 2009.

2.  The applicant states he was expeditiously moved from the U.S. Pacific Command (USPACOM) to Headquarters, U.S. Army Reserve Command (USARC) within 45 days specifically for promotion to the rank/grade of LTC/O-5 immediately following the release of the LTC promotion list on 12 January 2009.  He states he was informed by his personnel management officer (PMO) at U.S. Army Human Resources Command, St. Louis, MO (HRC-STL) that he would be promoted effective the date he signed into his new unit.  He signed into his new unit on 23 March 2009.  One month later, he was informed that due to his temporary physical profile based on knee surgery in November 2007, he would not be promoted until he passed an Army Physical Fitness Test (APFT).  On
27 May 2009, he states he passed an APFT.  Then on 19 June 2009, he received his promotion orders with an effective date of rank of 12 June 2009.

3.  The applicant provides the following documents:

	a.  a self-authored event timeline;

	b.  an email from his Career Manager at HRC-STL, dated 6 February 2009, reference LTC vacancies and promotion;

   c.  permanent change of station Orders R-02-980382, issued by HRC-STL on 9 February 2009, as amended by Orders R-02-980382A01, dated 12  February 2009;

   d.  an excerpt from unit identification code 9UIC) W496AA Full-Time Support Resource Management Directorate AGR Management Information System, printed on 6 April 2009 and its accompanying memorandum;

   e.  his Integrated Web Services (IWS) transaction history from the Soldier Management System of HRC-STL from 16 January 2009 to 22 October 2009;

   f.  an email to him from the Special Operations Forces Branch Chief at HRC-STL on 1 April 2009 concerning receipt of promotion paperwork;

   g.  an email to him from the same branch chief at HRC-STL on 17 April 2009 requesting his DA Form 705 (APFT Scorecard) and DA Form 5500 (Body Fat Content Worksheet - Male);

   h.  an email from him to the Director of Officer Personnel Management Directorate at HRC-SLT on 1 May 2009 concerning promotion orders and his effective DOR to LTC;

   i.  a DA Form 3349 (Physical Profile) with a chronological record of medical care, dated 7 July 2009, showing he had an approved permanent profile rating of P-2 for his lower extremities;

   j.  a DA Form 705, dated 27 May 2009;

   k.  a DA Form 5500, completed on 27 May 2009;

   l.  promotion Orders B-06-904221, dated 19 June 2009, issued by HRC-STL, with an effective date and DOR of 12 June 2009 to LTC;

   m.  an email from a newly-appointed Career Manager, dated 22 June 2009, directing the applicant contact the HRC-STL chief of promotions branch concerning his DOR;

   n.  an email to him from the chief of promotions branch at HRC-STL concerning his effective DOR to LTC, dated 17 August 2009;


   o.  an email communication between the HRC-STL PMO and the applicant concerning promotion regulations; and
   
   p.  excerpts from Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) with an effective date of 13 July 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a current member of the U.S. Army Reserve (USAR) on Active Guard Reserve (AGR) status.  His commissioned officer area of concentration is 38A (Civil Affairs Officer).

2.  On 19 June 2002, the applicant was promoted to the rank/grade of major (MAJ)/O-4 in the USAR AGR program.

3.  The applicant had his left patella tendon repaired in November 2007.  He was issued a physical profile after surgery limiting his ability to participate in the Army physical fitness program.  The applicant's medical records and profiling documents are not available for review by the Board.

4.  The applicant was selected for promotion to LTC in the AGR program by the Fiscal Year 2008 LTC Army Promotion List (APL) Department of the Army Reserve Components Selection Board that convened on 8 September 2008, which was approved on 16 December 2008, and was subsequently released on 15 January 2009.

5.  When the promotion board results were released, the applicant was assigned to U.S. Pacific Command (USPACOM) and stationed in Hawaii.

6.  The applicant was directed by permanent change of station orders to report to USARC at Fort McPherson, GA no later than 23 March 2009.  This order shows he would be assigned to Unit Identification Code (UIC) W496AA in paragraph 012N, line 01, and rank/grade unknown.  An amendment to this order directed that he report to USARC (UIC W496AA) and changed his position to paragraph 709, line 01 in the duty position of chief of a combat readiness team (CRT).  A review of the UIC staffing report titled Full-Time Support Resource Management Directorate AGR Management Information System shows this position is authorized an officer in the rank/grade of LTC (O-5).


7.  An assignment memorandum from Headquarters, U.S. Army Garrison, Fort McPherson shows the applicant arrived at his unit on 23 March 2009.

8.  The applicant's effective date of promotion to LTC is 12 June 2009 as per Orders B-06-904221 published by HRC-STL on 19 June 2009.

9.  In the processing of this case, on 8 December 2009, an advisory opinion was obtained from Chief, Special Actions Branch, DA Promotions at HRC-STL.  The advisory official recommended denial of the applicant's request for an earlier DOR to LTC based on the fact the applicant did not meet all of the criteria for promotion to the higher grade on 23 March 2009.  The advisory official states the applicant was not the sole incumbent in a LTC position on this date.  He met all criteria for promotion on 27 May 2009 and he was solely placed in a higher-graded position on 12 June 2009.

10.  To support its opinion, the advisory official provided a copy of a memorandum from the director of officer personnel management to the office of Reserve component promotions, dated 17 June 2009, requesting publication of promotion orders for the applicant to the rank of LTC with a DOR of 12 June 2009 based on assignment to a valid position of higher authority, effective 27 May 2009.  This memorandum further states the applicant and an incumbent in the rank of major both held the same higher graded position until the incumbent was reassigned to a major's position on the unit manning report.  Additionally, this memorandum shows the applicant provided updated medical profile information as of 27 May 2009.

11.  The applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments for a rebuttal.  The applicant did not respond.

12.  The applicant provided the following evidence:

	a.  on 6 February 2009, in the text of the email from his Career Manager at HRC-STL, to remain with his current cohort/year group for promotion consideration to colonel, he must accept assignment instructions to an LTC billet and report no later than 31 March 2009 for colonel consideration in July 2013.  Delaying the assignment to a higher graded billet until the summer of 2009 would place him with the cohort/year group that would be considered for promotion consideration to colonel in July 2014;


	b.  on 6 February 2009, he requested a report date of 23 March 2009 through his Career Manager at HRC-STL;

	c.  on 30 March 2009, an internal message on the IWS SMS shows his personnel officer asked personnel actions to publish a promotion order.  In return, the he was notified that he must provide a copy of a valid DA Form 705 and DA Form 5500, if applicable;

	d.  on 1 April 2009, he was informed by his personnel officer that the "Documents were received and forwarded to promotions for your order";

   e.  on 6 April 2009, a printout for UIC W496AA, titled Full-Time Support Resource Management Directorate AGR Management Information System, shows the applicant is the only incumbent in the position paragraph 709, line 01, grade O-5, titled "CHIEF CRT" with an effective date of assignment of 23 March 2009;

	f.  on 17 April 2009, he inquired into the status of his promotion order and he was told by his personnel officer to provide a recent DA Form 705 and, if applicable, a DA Form 5500 to HRC-STL;

	g.  on 1 May 2009, he sent an email to the Director of Officer Personnel Management at HRC-STL stating he had knee surgery in 2007 and he received a temporary 3 (T-3) level profile for his lower extremities restricting him from running, walking, and biking on the APFT; 

   h.  on 7 May 2009, a chronological record of medical care shows he had a left patella tendon repair in 2007 and he was provided a P-3 profile.  He did not go before a medical evaluation board (MEBD).  However, he had recovered sufficiently from his surgery and requested his physical profile be downgraded to a P-2 profile, stating his knee was good and that he was able to perform his military duties with an alternative APFT event;

   i.  on 8 May 2009, a military orthopedic surgeon provided him with a P-2 profile for his lower extremities.  The APFT was modified requiring the applicant to participate in the push-up, sit up, and bike ride; excluding him from running, walking, or swimming;

   j.  on 27 May 2009, he passed an alternative APFT and he met the Army's height and weight standards.   His DA Form 705 shows his assigned unit as USARC, Combat Readiness Team Number 8;

   k.  on 28 May 2009, he forwarded his DA Form 705 and DA Form 5500 to HRC-STL and his Career Manager requested his promotion orders with an effective DOR of 23 March 2009;

   l.  on 28 May 2009, a staff member of the Officer Promotions Branch at
HRC-SLT informed his Career Manager that his DOR would be 27 May 2009 based on a current APFT and DA Form 5500;

	m.  on 1 June 2009, his Career Manager at HRC-STL acknowledged receipt of his DA Form 705 and DA Form 5500 and a request for his promotion orders was initiated;

	n.  on 19 June 2009, orders were published promoting him to LTC with an effective date and DOR of 12 June 2009;

   o.  on 27 July 2009, a USARC Human Resources Senior Sergeant forwarded to HRC-STL his assignment order and a copy of the unit manning report dated
6 April 2009, requesting correction of his DOR from 12 June 2009 to 27 May 2009, the date he was fully eligible for promotion; and

   p.  on 14 August 2009, a colonel from HRC-STL stated in an internal email that "…The promotion date is the day in which the officer solely encumbers the position.  (The applicant) did not solely encumber the position until 12 June 2009, which coincides with his promotion date."

13.  References:

	a.  Title 10, U.S. Code, section 14308, provides for the promotion of officers in the Army Reserve to fill vacancies.  This statute states specifically an officer in the Army Reserve who is on a promotion list as a result of selection for promotion by a mandatory promotion board may be promoted at any time to fill a vacancy in a position to which the officer is assigned.

   b.  Army Regulation 135-155 provides for the promotion of officers in the Army Reserve and Army National Guard.  This regulation states that officers recommended for promotion to the next higher grade must (emphasis added) meet the following requirements before being promoted in the Reserve components:

* be on the Reserve Active Status List 
* be medically qualified (valid physical every 5 years)


* have a favorable security screening
* meet standards of the Army Body Composition Program
* be a satisfactory participant

   c.  Army Regulation 135-155 further states that for commissioned officers serving on active duty in an AGR status when assignment/attachment of an officer requires a higher grade than that currently held by the officer, the officer may be promoted to or extended Federal recognition in a higher grade provided the duty assignment/attachment requires a higher grade than currently held.  When not in a higher graded position, an AGR officer will receive an automatic delay in promotion without requesting such action.  The officer will remain on the promotion list and on active duty in the AGR program until assignment/
attachment to an AGR position calling for the higher grade.  Upon such assignment, the DOR will be determined by HRC-STL within the Office of Chief, Personnel Promotions provided the delay is for:

* noncompliance with Army height and weight standards
* failure to take and pass the APFT within the period required by Army Regulation 350-1 because of the fault of the officer concerned
* disciplinary action under the provisions of Article 15, Uniform Code of Military Justice (UCMJ)
* any adverse actions

   d.  Army Regulation 135-155 states, in pertinent part, that a partial or temporary physical disability resulting from a disease, wound, or injury will not disqualify an officer for promotion.  In addition, officers having a valid permanent or temporary medical profile, as determined by appropriate medical personnel, precluding administration of the APFT, even in an authorized modified form, are deemed not to have taken the APFT through no fault of their own. 

	e.  Field Manual 21-20 (Physical Fitness Training) states that a Soldier with a temporary profile must take the regular three-event APFT after the profile expires.  Soldiers with temporary profiles of more than 3 months may take an alternate test as determined by the commander with input from health care professionals.  Once the profile is lifted, the Soldier must be given twice the time of the profile but not more than 90 days to train for the APFT before a record test may be administered.

	f.  Message Number 013/2002, Subject:  Adjustment to the Clarification and Reinforcement of the Army Training Policies, states that active Army and AGR Soldiers will take the APFT or the alternate APFT for record at least twice each calendar year.

   g.  Army Regulation 40-501 (Standards of Medical Fitness) prescribes the medical fitness standards for the Army and its Reserve components.  A temporary profile is given if the condition is considered temporary, the correction or treatment of the condition is medically advisable, and correction usually will result in a higher physical capacity.  Soldiers on active duty with a temporary profile will be medically evaluated at least once every 3 months at which time the temporary profile may be extended for a maximum of 6 months from the initial profile start date.  Temporary profiles should not exceed 6 months for the same medical condition.  Temporary profiles should specify an expiration date.  If no date is specified, the profile will automatically expire at the end of 30 days from issuance of the profile.  In no case will Soldiers have a temporary profile that has been extended for more than 12 months.

	h.  Army Regulation 40-501 further provides that a permanent profile may only be awarded or changed by the appropriate authority and through coordination with a Soldier's commander.  The medical profiling officer must physically assess the Soldier to determine if the Soldier meets retention standards required for soldiering and within their particular military occupational specialty (MOS).  Soldiers on active duty who do not meet retention standards must be referred to a medical evaluation board (MEBD).  Active duty Soldiers who meet retention standards but have at least a 3 or 4 PULHES serial will be referred to an MOS Medical Retention Board (MMRB).  Permanent profiles may be amended at any time, if clinically indicated, and will automatically be reviewed at the time of a Soldier’s periodic health assessment or other medical examination.

DISCUSSIONS AND CONCLUSIONS:

1.  The applicant contends that his DOR to LTC should be the date he signed into his new unit based on his PCS move from USPACOM to accept a LTC position in USARC headquarters.

2.  While the applicant felt assured that his LTC DOR would be the effective date he reported to his new assignment at USARC headquarters, he failed to take into consideration all the requirements for establishing an officer's DOR.  These mandatory requirements include:

* occupying a valid position (with no incumbent) in the higher grade on a Military Table of Organization and Equipment (MTOE) or a Table of Distribution and Allowances (TDA) 
* being medically qualified


* having a favorable security screening
* being a satisfactory participant
* being in compliance with Army height and weight standards
* being in compliance with APFT standards
* having no adverse actions pending

3.  Based on the evidence of record presented by HRC-STL, the applicant was not the sole incumbent in an MTOE or TDA LTC position.  The applicant did present evidence from the USARC showing that on a Full-Time Support Resource Management Directorate excerpt of a personnel-manning document he was in a LTC position.  However, this document is not the automated unit-manning table that shows all the personnel including AGR, active component, and USAR troop program unit members assigned to USARC Headquarters.  HRC-STL staff has access to review the entire USARC personnel manning infrastructure database.  Within its purview, it determined the applicant was not the sole incumbent in the particular LTC position.

4.  Based on regulatory guidance, HRC-STL could not promote the applicant to LTC until USARC human resource managers moved the junior officer to a unit staffing position for his grade.  Evidence of record shows the applicant was the sole incumbent in an LTC position effective 12 June 2009. 

5.  Evidence of record also shows that there were other mitigating factors that delayed the applicant's effective date of promotion to LTC.  After the applicant's knee surgery, he states he received a T-3 profile for his lower extremities in 2007.  With a T-3 profile, the applicant's medical status should have been evaluated at 6 months but no later than 12 months after the date the temporary profile was issued.

6.  Nearly two years after he was first issued a temporary profile and after questioning by the HRC-STL promotions branch chief, the applicant consulted with military medical personnel and requested adjustment of his physical profile to a "2" to allow him to accept his promotion to LTC.  With the support of his doctor, his permanent profile was changed to a P-2 profile, allowing the applicant to complete an alternate APFT on 27 May 2009.

7.  Therefore, excluding an assignment to a valid LTC billet, the first date the applicant became eligible for promotion was 27 May 2009.

8.  While it is unfortunate the applicant presumed based on guidance from his PMO that his promotion date to LTC would be the date he signed into USARC 


headquarters, he did not meet the first criteria for promotion because he was not the sole incumbent in an LTC position.  After the applicant complied with
HRC-STL instructions for promotion, which were based on regulatory guidance, a junior officer was moved out of the staff position jointly held with the applicant.

9.  Upon solely occupying the LTC position on 12 June 2009, HRC-STL published promotion orders.  Therefore, the applicant's promotion orders with a DOR of 12 June 2009 are correct as published.

10.  The applicant has failed to provide sufficient evidence or argument to show that his LTC promotion order is incorrect or invalid.  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)                                         AR20090019274



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090019274



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1