IN THE CASE OF:	  

		BOARD DATE:	    29 June 2010

		DOCKET NUMBER:  AR20090021131 


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) to major from 18 August 2009 to 26 June 2009. 

2.  The applicant states he was assigned to a major/O4 position on 15 June 2009 and therefore was in a promotable status on the release date of the promotion board.  He states he was promoted effective 18 August 2009 instead of 26 June 2009, the release date of the promotion board.

3.  The applicant provides a copy of:

* a memorandum to the Board
* a memorandum, subject: By-Name Request for DA Secretariat Personnel
* a memorandum for record, subject: DOR Adjustment for (applicant)
* a Table of Distribution and Allowances (TDA) W6EDAA (W6ED26) Extract
* an E-mail notification of selection to DA Secretariat Recorder position
* an E-mail notification of pending assignment instructions
* AHRC-ARO-0516 Orders R-03-981718
* AHRC-ARO-0516 Orders R-03-981718A01
* a DA Form 31 (Request and Authority for Leave)
* a DA Form 4037-E (Officer Record Brief)
* FY09 Major, RC/APL, Selection Board Results
* a TDA W6EDAA (W6ED24) Extract
* an E-mail stating a request was submitted for opening a new paragraph and line for his position
* Assignment Instructions for reassignment to unit code W6ED24, paragraph 087D and line 02A effective 21 August 2009
* AHRC-ARO-0516 Orders R-08-985929 reassigning him from W6ED26 088J 03B to W6ED24 087D 02A effective 21 August 2009
* AHRC-ARO-0516 Orders R-08-985929A01 amending effective date of reassignment to 18 August 2009 
* AHRC-PRO Orders B-08-905943 
* an Integrated Web Services (IWS) major personnel action screen printout
* an IWS - Total Army Personnel Database - Reserve (TAPDB-R) screen printout
* an IWS - Create Transaction screen printout

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the U.S. Army Reserve on 25 July 1991.  He was awarded the military occupational specialty of crane operator.  On 4 August 1996, he was appointed as a Reserve Commissioned Officer of the Army, in the rank of second lieutenant.

2.  The applicant was promoted to the rank of captain as a Reserve Commissioned Officer of the Army in an Active Guard Reserve (AGR) status, effective 17 March 2003.

3.  The applicant was selected for and later assigned to an O4 position (W6ED26 paragraph 088J line 03B) effective 15 June 2009.  This was apparently a double slotting.

4.  An e-mail dated 11 August 2009 states a request was submitted for opening a new paragraph and line number for his position, which upon approval would realign him to permit submission for his promotion orders (to major).

5.  The applicant was reassigned from the position in which he was double slotted (W6ED26 paragraph 088J line 03B) to a valid O4/major vacancy position (W6ED24 paragraph 087D line 02A) effective 18 August 2009.

6.  The applicant was promoted to the rank of major in the U.S. Army Reserve in an AGR status, effective 19 August 2009, with a date of rank of 18 August 2009.

7.  In the processing of this case an advisory opinion was obtained from the U.S. Army Human Resources Command, St. Louis (HRC-STL), Chief, Special Actions Branch, Department of the Army (DA) Promotions.  The advisory official stated:

	a.  The applicant was selected for promotion by the 2009 DA Reserve Components Selection Board which was approved on 26 June 2009.

	b.  The Officer Management Branch double slotted him as a board recorder in the DA Secretariat-STL, on orders dated 26 March 2009 with a report date of 15 June 2009.

	c.  In accordance with Title 10, 14308(e)(1), an officer selected for promotion may be promoted at any time to fill a vacancy in a position to which the officer is assigned.

	d.  The applicant was not officially assigned to a valid higher graded position until 18 August 2009.  He was promoted with a date of rank of 18 August 2009 and an effective date of 19 August 2009.

	e.  In accordance with information received from LTC E__ S__, who was Chief, DA Secretariat-STL during the board process, the Officer Management Branch had three valid higher graded positions they could have used to assign the applicant to when publishing his assignment orders.

	f.  The applicant was not assigned to one of the valid positions until 18 August 2009; therefore, he is not eligible for a date of rank prior to 18 August 2009.

8.  The HRC-STL advisory official recommended since there were valid positions to which the applicant could have been assigned that the Board direct his assignment orders be amended to read he was assigned to a vacant position on 15 June 2009, or that his promotion orders be amended to reflect his date of rank as 26 June 2009, the approval date of the board and that his effective date remain 19 August 2009.  

9.  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.

10.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes that AGR officers selected by a mandatory board will be promoted provided they are assigned/attached to a position in the higher grade.  An AGR officer who is selected for promotion by a mandatory promotion board, but who is not assigned/attached to a position in the 


higher grade, will be promoted on the date of assignment/attachment to a higher graded position or the day after release from AGR status.  The date of rank will be the date the officer attained maximum time-in-grade or the date on which assigned/attached to a position in the higher grade, whichever is earlier.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was in a promotable status on the release date of the promotion board on 26 June 2009.  Evidence indicates he was selected for and assigned to a major position effective 15 June 2009.  However, evidence also indicates he was double slotted in this position; therefore, the position was not a valid higher grade position vacancy for purposes of his promotion.  

2.  The applicant provided TDA extracts and other documents in an attempt to show he was assigned to a valid higher graded position on the release date of the promotion board.  However, these documents do not verify he was assigned to a valid major position at that time.  As such, he was not in a promotable status on the release date of the promotion board.

3.  The advisory official recommended since there were valid positions to which the applicant could have been assigned that the Board direct his assignment orders be amended to read he was assigned to a vacant position on 15 June 2009, or that his promotion orders be amended to reflect his date of rank as 26 June 2009.

4.  However, evidence indicates that once it was known he was selected for promotion to major and was not assigned to a valid higher graded position, a request was submitted for opening a new paragraph and line number for his position, which upon approval provided him a valid major's position which permitted submission for his promotion orders (to major).  This action would not have been required if he was assigned to a valid position in the higher grade.

5.  Orders show he was reassigned to a valid higher grade position effective 18 August 2009.  He was promoted to the rank of major effective 19 August 2009 with a date of rank of 18 August 2009.  As such, evidence shows he was properly promoted to the rank of major in accordance with the applicable laws and regulation, with no violations of any of the applicant's rights or entitlements.

6.  In view of the foregoing, there is an insufficient basis to grant the applicant’s request for adjustment of his date of rank to major.



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)                                         AR20090021131



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ABCMR Record of Proceedings (cont)                                         AR20090021131



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