IN THE CASE OF:	  

		BOARD DATE:	  12 October 2010

		DOCKET NUMBER:  AR20090020760 


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 her records as follows:

* Award of 8 years and 11 months of constructive service credit (CSC) in order to establish her promotion eligibility to major (MAJ) as March 2001
* Adjustment of her date of rank (DOR) as a MAJ to an appropriate date to put her in the zone for promotion to lieutenant colonel
* Correction of her education error
* Informing the U.S. Army Human Resources Command (HRC) of the correction so she would able to be eligible for the TO&E (Table of Organization and Equipment) CASB (Command Assignment Selection Board)

2.  The applicant states the following:

* She never received CSC for her U.S. Navy (USN) military service although the board assessed 7 years and 11 months
* She was passed over for promotion to MAJ in 2002 due to the Personnel Management Officer (PMO) miscalculating her time in grade (TIG) and instructing her not to send her package
* She was informed during the following year of this action (being passed over) due to the lack of a packet
* Promotion was withheld due to erroneous education requirement for promotion to MAJ (as a Doctor of Veterinary Medicine (DVM) she was not required to complete the Officer Advanced Course (AOC))

3.  The applicant provides the following documentary evidence:

* A self-authored synopsis of her time in rank, education, and promotions
* Appointment memorandum
* Two DA Forms 1059 (Service School Academic Evaluation Report) 
* Handwritten notes
* Notification of promotion status memoranda
* HRC Projected Promotion Eligibility Date (PPED) printout
* Extract of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers)
* U.S. Army Medical Department (AMEDD) Captains Career Course memorandum
* USN DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* Conditional resignation from the U.S. Navy Reserve (USNR) memorandum
* DA Form 2-1 (Personnel Qualification Record)
* Various exchange of emails

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show she was born on 23 October 1953.  She enlisted in the USNR in or around February 1981 and she subsequently completed
4 months and 17 days of creditable active service as an officer candidate.  She was honorably discharged on 11 February 1982.

2.  She was commissioned as an officer in the USNR and she entered active duty on 12 February 1982.  She served continuously through 16 June 1987, as a special duty officer (Oceanographer).  She was reappointed in the USN on 17 June 1987 and she served continuously on active duty through 31 January 1992.  She completed a total of 9 years, 11 months, and 20 days of active service as a commissioned officer.

3.  She was appointed as a U.S. Army Reserve (USAR) Veterinary Corps (VC) captain (CPT)/O-3 and she executed a DA Form 71 (Oath of Office - Military Personnel) on 11 June 1997.  Her appointment memorandum, dated 11 June 1997, credited her with 8 years, 11 months, and 5 days of CSC.

4.  She attended and completed the Reserve Components (RC) AMEDD Officer Basic Course from 4 January 1999 to 15 January 1999.  She was assigned to a Troop Program Unit (TPU), the 109th Medical Detachment, in Stanton, CA.

5.  On 30 January 2002, by memorandum, HRC, St. Louis, MO (HRC-STL) notified her she had been considered by a mandatory Department of the Army 

(DA) Reserve Components Selection Board (RCSB) that convened on 7 January 2002 for promotion to MAJ, but she was not selected.  The memorandum stated that her records did not indicate she had completed the required civilian or military education by the date the board convened.

6.  On 1 July 2002, she was ordered to active duty in support of Operation Iraqi Freedom and she subsequently served in various locations at Fort Lewis, WA, as well as Iraq and Kuwait.  She was honorably released from active duty on
24 June 2003 

7.  On 23 July 2003, by memorandum, HRC-STL notified her that she was considered by the mandatory RCSB that convened on 3 February 2003 and that she was selected for promotion.  Her promotion was contingent upon her remaining in an active status; being assigned to a position authorized a grade equal to or higher than the grade in which selected; having an appropriate security clearance; and being medically qualified and meeting the height, weight, and physical fitness requirements.  Additionally, the memorandum awarded her an exception to the military education requirements through 1 January 2005. 

8.  On 1 July 2004, she successfully attended and completed the RC AMEDD Officer Advanced Course from 21 June 2004 to 1 July 2004.

9.  Her DA Forms 67-9 (Officer Evaluation Report) for the periods 25 June 2003 through 24 June 2004 and 25 June 2004 through 24 June 2005 show she was assigned as a field veterinary officer in area of concentration (AOC) 64A (Veterinarian) in what appears to be a CPT's position. 

10.  On 28 September 2004, by memorandum, HRC-STL announced her promotion to MAJ in the USAR, effective 1 July 2004. 

11.  On 8 December 2005, she assumed command of the 109th Medical Detachment (Veterinary Services), Stanton, CA.

12.  On 22 March 2007, HRC-STL issued her a Notification of Eligibility for Retired Pay at age 60.

13.  On 25 January 2008, she was considered by a Special Selection Board (SSB) for promotion to LTC under the 2002 criteria.  The SSB selected her for promotion to the next higher grade with a tentative DOR of 5 July 2002.  She was notified that once the board results are approved and released:

	a.  TPU and Individual Mobilization Augmentee Soldiers occupying a position of the appropriate grade and AOC for which they are qualified and who do not have any issues must complete and submit an AHRC Form 56-R (Promotion Qualification Statement).

   b.  Individual Ready Reserve (IRR) Soldiers begin to receive their orders
30 days before their promotion eligibility date (maximum time in grade as shown in Table 2-1 of Army Regulation 135-155).

14.  On 30 August 2010, subsequent to receiving the AHRC Form 56-R from the applicant, HRC-STL published orders promoting her to LTC with an effective date and DOR of 12 July 2010.

15.  On 22 September 2010, she was notified of the criteria for the 2009 LTC CASB.  She was given the option of submitting an application to this command board and provided with step-by-step instructions of the procedure to do so. 

16.  During the processing of this case, on 24 August 2010, an advisory opinion (AO) was obtained from the Chief, Special Actions Branch, DA Promotions, HRC-STL.  The official states:

	a.  She is requesting constructive credit of 8 yrs, 11 months and 5 days to put her major eligibility at March 2001; correct her MAJ DOR; put her in the zone for LTC in 2005; correct the education error; and inform HRC-STL so that she will be eligible for the TO&E LTC CASB, which she will lose unless her record is corrected.

	b.  She was given 8 years, 11 months, and 5 days of CSC as of 11 June 1997 at the time of her appointment to CPT in the VC branch.  With this CSC, she should have received an adjusted DOR to CPT of 6 July 1995 and a PED of
5 July 2002.

	c.  The database reflects she did receive the 6 July 1995 DOR and she was considered, but not selected by the 2002 MAJ Army Medical Selection Board.  AMEDD Officers in the branch of VC are waived for the OAC.  The reason for the non-selection was due to her officer basic course (OBC) diploma not being seen by the selection board.

	d.  She was also considered and selected by the 2003 Major AMEDD Selection Board; however, she was suspended for promotion due to not being in a valid higher grade slot.  She also had an outdated Army Physical Fitness Test (APFT) and Maximum Allowable Weight Screening.  On 1 October 2004, the Integrated Web Service, Soldier Management Services of the HRC database contains an entry that stated the applicant was promoted to MAJ with a DOR of 1 July 2004 (the date of the DA Form 1059 reflecting completion of the military education).  A DA Form 155-R with supporting documents was received and HRC-STL was informed the applicant was on an educational delay.  HRC-STL inquired about whether the applicant was mobilized or not.

	e.  She was also considered and selected by the 25 January 2008 SSB for reconsideration under the 2002 criteria.  She was issued a selection memo on 21 June 2010 stating that upon final processing a letter would be issued with a DOR of 5 July 2002.  Under ROPMA [Reserve Officer Personnel Management Act], the Secretary of Defense's approval date of the criteria year selected under (30 April 2002) is the earliest DOR she can receive provided she was assigned to a higher grade position.  This office is waiting for her to provide supporting documentation, such as a unit manning report to finalize this action.  She was not eligible for any earlier considerations with the 6 July 1995 DOR.

	f.  Based on her 1 July 2004 DOR to MAJ, she was considered and non-selected by the Fiscal Year (FY) 2009 LTC Army Medical Selection Board.  She was considered as a below the zone officer so the non-selection will not count against her.  If her DOR to MAJ is adjusted, she may be eligible for consideration for an earlier selection board to LTC.

17.  On 1 September 2010, the advisory opinion was furnished to the applicant for information and to allow her the opportunity to submit comments or a rebuttal. On 13 September 2010, she submitted a memorandum in response to the advisory opinion wherein she requested the Board consider the following:

	a.  Contrary to what the third paragraph in the advisory opinion states, she did not submit a promotion packet because her PMO stated she was 2 months short of the TIG requirement for the MAJ board.  Although the PMO may not have had sufficient information on his computer, she did give him her TIG of 8 years,
11 months, and 5 days over the phone.  This TIG was provided to her in her appointment memorandum together with the fact that the OBC was waived since she had previously attended USN officer candidate school.  In November 2001, she received a microfiche copy of her personnel records in preparation for the 2002 MAJ board and discovered several key documents were missing.

	b.  The advisory opinion states that she was selected by the 2003 MAJ AMEDD board but not promoted due to lack of education, not because of a lack of being in a valid higher grade.  Additionally, she had taken her APFT several times in 1999, 2000, 2002, and 2004.  Furthermore, she was mobilized in 2002 but her PMO did not tell her that the documentation for OBC was missing from her file.  The PMO simply told her she had to attend AOC.

	c.  She was not notified of the SSB that convened in January 2008 until 21 June 2010.  It also did not appear in her personnel records until a later date.  She also attached an AHRC Form 56-R stating if she had been selected to MAJ in any date prior to 2004, she would have been placed in a MAJ position in the 6252nd Veterinary Cell.

18.  She also submitted the following documents:

	a.  A self-authored synopsis of her time in grade, education, and promotions.  She highlighted areas where her records were not updated or areas where her PMO misinformed her of her TIG or the education requirements for promotion.  She also emphasized that she had made several attempts to get her records straight before a promotion board.  

	b.  Handwritten notes wherein she documented conversations with her PMO regarding promotion boards and educational requirements.

	c.  An HRC PED printout that shows her adjusted DOR as 6 July 1995 and her eligibility for promotion to MAJ as 5 July 2002.  This printout also shows she was awarded 8 years, 11 months, and 5 days of CSC.

	d.  A memorandum, dated 5 April 2006, clarifying military education requirements to AMEDD officers and states all RC officers who graduated from the AMEDD Officer AOC or AMEDD RC AOC prior to the re-naming of the AOC to Captains Career Course in 2004 would receive credit for the Combined Arms Exercise. 

	e.  Various emails and/or handwritten notes with her PMO and other officials, including staff members of this Board.

19.  DODI 6000.13 (Medical Manpower and Personnel), paragraph 6.2.2, states that a former Regular or Reserve commissioned officer may, if otherwise qualified, be appointed or reappointed as a Reserve officer.  If so appointed, he or she may be (paragraph 6.2.2.2) credited, for determining date of rank under section 741(d) of Title 10, U.S. Code, with service in grade equal to that held by that person when discharged or separated.  

	a.  Section 6.1.1 states that credit for prior service as a commissioned officer (other than as a commissioned warrant officer) shall be granted to recognize previous commissioned experience, while maintaining cognizance of the level of professional knowledge, skill, and experience required at specific rank levels of each health profession.  Credit shall be awarded as follows (Section 6.1.1.1): Service on active duty or in an active status as a commissioned officer in any of the Uniformed Services, in the corps or professional specialty in which being appointed, shall be credited on a day-for-day basis with any commissioned service performed before such appointment. 

	b.  Section 6.1.1.2: Service on active duty or in an active status as a commissioned officer in any of the Uniformed Services, but not in the corps or professional specialty in which being appointed, shall be awarded one-half day of credit for each day served in the case of individuals seeking an original appointment as a health professions officer.

20.  Army Regulation 135-101 (Appointment of Reserve Commissioned Officers for Assignment to AMEDD Branches) prescribes policy, procedures, and eligibility criteria for appointment in the RC of the Army, in the six branches of the AMEDD.  Chapter 3 contains guidance on grade determinations.  Paragraph 3-2 provides the policy for determination of entry grade for officers not ordered to active duty.  It states the grade of an individual appointed as a Reserve officer without concurrent call to active duty will be determined by comparing the entry grade credit awarded with the phase point shown in the Table ERR.  Authorized credit in excess of the minimum required for appointment to the appropriate grade will be used to adjust the DOR within that grade.  

21.  Army Regulation 135-155 provides policy for selecting and promoting commissioned officers of both the ARNG and USAR.  It provides promotion eligibility and qualification requirements, board schedules and procedures, and procedures for processing selection board recommendations.  The regulation in effect at the time stated the minimum years in the lower grade required for promotion from CPT to MAJ and from MAJ to LTC is 4 years and the maximum years in the lower grade is 7 years.

22.  Army Regulation 135-155 specifies that promotion consideration and/or reconsideration by an SSB may only be based on erroneous non-consideration or material error, which existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual’s non-selection by a promotion board and that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  The regulation also provides boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required military schooling.  An SSB is not used for officers promoted under a position vacancy promotion or for those not selected while below the zone. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her records should be corrected to show she was awarded 8 yrs, 11 months and 5 days of CSC to put her MAJ PED at March 2001; correct her MAJ DOR; put her in the zone for LTC in 2005; correct the education error; and inform HRC so that she will be eligible for the TOE LTC CASB, which she will lose unless her record is corrected.

2.  With respect to her CSC, the evidence of record shows the applicant was in fact awarded 8 years, 11 months, and 5 days upon her appointment as a CPT on 11 June 1997.  The grade of an individual appointed as a RC officer in the VC with 4 years of prior commissioned service or more but less than 14 years is CPT.  Authorized credit in excess of the minimum required for appointment to the appropriate grade is used to adjust the DOR within that grade.   Therefore, her DOR was appropriately adjusted to 6 July 1995 to account for 1 year, 11 months, and 5 days of excess service.  

3.  With respect to her DOR as a MAJ, since her DOR as a CPT was 5 July 1995 and since her maximum years in the lower grade for consideration for promotion to MAJ was 7 years, she was properly considered by the 2002 mandatory RCSB but she was not selected.  Her non-selection was not based on the fact that she had not completed AOC (was not required).  It appears her non-selection was based on a lack of a diploma showing completion of OBC.

4.  Implicit in the Army's promotion, retirement, and personnel systems are the universally accepted and frequently discussed principles that officers have a responsibility for their own careers.  Although she was appointed in the USAR in 1997, the applicant was a senior captain.  She knew or should have known what it takes to get promoted.  She knew or should have known the requirements to keep her official personnel file updated.

5.  She was ultimately considered by the 2003 RCSB and selected for promotion. However, her promotion was suspended due to not being in a valid higher grade slot.  Additionally, she had an outdated APFT and maximum allowable weight screening.  She was ultimately promoted on 1 October 2004, the date she appears to have met all promotion requirements.

6.  She was also considered for promotion to MAJ by an SSB under the 2002 criteria and was issued a selection memorandum on 21 June 2010 stating that upon final processing a letter would be issued with a DOR of 5 July 2002.  Under ROPMA, the Secretary of Defense's approval date of the criteria year selected under (30 April 2002) is the earliest DOR she could receive provided she was assigned to a higher grade position.  She failed to provide supporting documentation such as a unit manning report to finalize this action.  She was not eligible for any earlier considerations with the 6 July 1995 DOR.

7.  Based on her 1 July 2004 DOR to MAJ, she was considered and non-selected by the FY 2009 LTC AMEDD board in a below the zone status.  She was again considered by the FY2010 LTC board that selected her for promotion to LTC.

8.  With respect to informing HRC-STL of the correction so she would able to be eligible for TO&E CASB, the evidence of record shows she was notified of the requirements and procedures to submit appropriate forms and/or documentation for consideration by the CASB. 

9.  Based on the foregoing evidence, she does not appear to be eligible for the 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)                                         AR20090020760



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ABCMR Record of Proceedings (cont)                                         AR20090020760



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