IN THE CASE OF:
BOARD DATE: 12 October 2010
DOCKET NUMBER: AR20100007717
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 to first lieutenant (1LT) to June 2004.
2. The applicant states his command requested that he be promoted to 1LT prior to his honorable discharge on 4 May 2004. Denial of his promotion to 1LT has delayed his advancement to captain (CPT).
3. The applicant provides promotion documents, officer evaluation reports, academic evaluation reports, certificates of training, and a discharge certificate in support of his application.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. He was appointed as a second lieutenant (2LT) in the U.S. Army Reserve (USAR) on 14 September 2000.
3. The U.S. Army Human Resources Command Soldier Management System (SMS) shows entries relating to his security clearance beginning on 24 July 2002 and ending on 4 June 2009 when his security clearance was granted.
4. In connection with the processing of this case, an advisory opinion was received from the Chief, Special Actions Branch, Department of the Army Promotions, dated 16 February 2010. It states his promotion to 1LT was suspended because he did not have a DA Form 71 (Oath of Office), appointment letter, or valid security clearance. He was discharged as a 2LT on 5 May 2004. He was re-appointed on 15 June 2009 in the highest grade held with his promotion eligibility date and date of rank to be adjusted. His current date of rank, 24 October 2005, was calculated to compensate for his break in service. However, the earliest promotion eligibility date for 1LT would be 15 June 2009, 2 years from his reappointment date.
5. On 23 June 2010, the advisory opinion was forwarded to him for acknowledgement/rebuttal. No response was received.
6. He was promoted to 1LT effective 15 June 2009 by U.S. Army Human Resources Command Orders B-03-001435, dated 12 March 2010.
7. Army Regulation 135-155 (Army National Guard and USAR Commissioned Officers and Warrant Officers other than General Officers) provides policy and procedures for the promotion of commissioned officers of the Army Reserve. It states an officer:
a. is promoted after selection if all qualifications for promotions are met. When an officer does not meet the qualifications for promotion, the promotion effective date and date of rank may be advanced to the date qualifications are met;
b. who has been recommended for promotion to the next higher grade must have undergone a favorable security screening. Promotion authorities will screen the military personnel records jacket to ensure that derogatory or unfavorable suitability information is not contained therein. If the screening reveals derogatory or unfavorable security information, the promotion authority will cause a National Agency Check to be conducted. Final action of the promotion will be withheld until the results of the National Agency Check are received; and
c. who is disqualified for promotion to 1LT who was retained in an active status may be promoted if later determined qualified. The promotion eligibility date will not be earlier than the date the officer is determined qualified for promotion. A memorandum of record will be prepared to explain the later promotion eligibility date.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests adjustment of his date of rank to 1LT to June 2004.
2. He was appointed as a 2LT in the USAR on 14 September 2000. The evidence shows he did not complete a favorable security screening prior to his separation on 4 May 2004; therefore, he was not promoted to 1LT. His security clearance was granted on 4 June 2009 and he was reappointed as a 2LT on 15 June 2009.
3. Regulatory guidance states that an officer who is disqualified for promotion to 1LT who was retained in an active status may be promoted if later determined qualified. The promotion eligibility date will not be earlier than the date the officer is determined qualified for promotion. The earliest date he met the promotion requirements (on active status and a favorable security screening) was 15 June 2009 and the record shows he was promoted to 1LT on 12 March 2010 with an effective date of 15 June 2009.
4. Based on the available evidence there is no apparent error or injustice. Therefore, his request should be denied.
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) AR20100007717
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20100007717
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