IN THE CASE OF:	  

		BOARD DATE:	  23 December 2010

		DOCKET NUMBER:  AR20100009155 


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 an adjustment of his date of rank (DOR) to colonel
(O-6) from 13 May 2008 to 9 December 2006 or 30 April 2007.

2.  The applicant states:

* He was considered for promotion to pay grade O-6 by the 2006 U.S. Army Reserve (USAR) Colonel Promotion Board which convened on 
11 July 2006
* A letter from the Human Resources Command (HRC), dated 24 October 2006, shows he was not selected by the board
* His 2006 promotion file contained a substantive inaccuracy with one of his Officer Evaluation Reports (OERs) that was posted to his promotion file before the board convened
* He appealed the OER successfully and a corrected OER was posted in his official record 
* The HRC concurred that the inaccurate OER may have contributed to his non-selection for promotion to pay grade O-6, and his official file along with his corrected OER was reviewed by a Standby Advisory Board
* He was recommended for promotion to the pay grade of O-6 under the selection criteria used by the 2006 Colonel Board
* He was selected for promotion by a Special Selection Board (SSB) with an effective DOR of 30 April 2007 and the notification letter stated his DOR could be as early as 9 December 2006 if he met the requirements
* He was told by HRC officials that his promotion orders could not be issued until he was in a valid O-6 position
* After transferring to an O-6 position, he received promotion orders dated 11 June 2008 with a DOR of 13 May 2008
* The findings of the SSB were confirmed, and he would have been selected by the 2006 Colonel Board were it not for the erroneous OER in his file
* As a matter of fairness his DOR should reflect the date he would have most likely been promoted if his name had appeared on the original 2006 list
* He had been offered an O-6 position shortly before the 2006 list was released
* He would have accepted the O-6 position had his name appeared on the promotion list, which would have made him eligible for promotion on 9 December 2006
* He would have most certainly secured an O-6 position by the 30 April 2007 date referenced in his promotion letter
* In the worse case, he would have exercised his option to transfer to the Individual Ready Reserve after 1 year in order to obtain his promotion, which would have resulted in an assignment to an O-6 position subsequent to the date of his promotion letter dated 13 May 2008
* The vast majority of USAR O-6 vacancies require an individual to be in a promotable status prior to assignment
* In similar circumstances the ABCMR has granted full relief including an adjusted DOR and back pay

3.  The applicant provides:

* HRC Notification of Promotion Status dated 24 October 2006
* HRC Promotion Consideration notification dated 20 March 2008
* HRC-PRO-Orders B-06-803809 dated 11 June 2008

CONSIDERATION OF EVIDENCE:

1.  On 25 May 1983, the applicant accepted an appointment as a commissioned officer in the Regular Army in the rank of second lieutenant (O-1).  He was promoted through the ranks to captain (O-3), effective 1 May 1987.  He was honorably discharged on 3 November 1988. 

2.  The applicant accepted an appointment as a Reserve commissioned officer in the pay grade of O-3 on 10 December 1988.  He was promoted to the rank of major (O-4), effective 31 July 1995, and he was promoted to lieutenant colonel (O-5), effective 1 May 2002.

3.  On 24 October 2006, the applicant was notified by HRC that he was considered for promotion to the pay grade of O-6 by a Department of the Army (DA) Reserve Component Selection Board that convened on 11 July 2006 and that he was not selected.  He was told that promotion boards do not record the reasons for selection or non-selection of individual officers; however, his career manager may be able to assist him in improving his official file and to advise him regarding specific actions which may increase his potential for promotion.

4.  On 20 March 2008, the applicant was notified by HRC that a DA Standby Advisory Board convened on 28 September 2007 and he was selected for promotion to the pay grade of O-6 using the criteria established for the mandatory board which met in the year 2006.  He was told that a promotion order would be forwarded to him with a DOR of 30 April 2007.  He was also told:

* An officer can have an earlier DOR, but not earlier than the Senate confirmation date of the criteria year selected under (9 December 2006)
* If an officer is mobilized, a valid USARC Form 56-R (Promotion Qualification Statement) is required 
* If an officer is non-mobilized, an ARPC Form 155-R (Promotion Qualification Statement) signed by the unit commander verifying the date the officer is assigned to a higher grade position is required

5.  On 11 June 2008, AHRC-PRO Orders B-06-803809 were published promoting him to the pay grade of O-6 with an effective date and DOR of 
13 May 2008.

6.  During the processing of this case, an advisory opinion was obtained from the HRC Chief, Special Actions Branch who recommends denial of the applicant's request.  He reiterates the information contained in the HRC notification dated 20 March 2008 and he states that documents provided by the applicant's unit and information available in the Soldier Management System verify he was assigned to the higher grade position on 13 May 2008.  He states that the applicant did not provide documentation from his unit to verify he would have been assigned to a higher grade position prior to 13 May 2008; therefore, he was promoted with that DOR.

7.  The applicant was provided a copy of the advisory opinion and he submits a rebuttal dated 19 October 2010, reiterating his previous statements.  He also submits a copy of a case pertaining to another individual who requested that her DOR be adjusted and she was granted relief by this Board.  In that case, the applicant was granted an earlier DOR because she provided evidence to show that had she been selected for promotion during her original promotion board she would have been included as part of the assignment slating to higher grade positions that occurred in late 2006 and officers in her specialty who were selected by that promotion board were assigned through the colonel slating process and promoted with DORs between 14 May 2007 and 3 December 2007.  The Board found it would be equitable to adjust her DOR for colonel to 1 June 2007.

8.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers, Other Than General Officers) prescribes policy and procedures used in the selection and promotion of commissioned and warrant officers of the USAR.  It states, in pertinent part, an officer is promoted after selection if all qualifications for promotion are met.  When an officer does not meet the qualifications for promotion, the effective date of promotion will not be earlier than the later date all qualifications are met.  In no case will the date of rank or effective date of promotion be earlier than the date the board is approved, or, if required, the date of Senate confirmation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  However, it does not appear that he is entitled to an adjustment of his DOR to colonel.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The evidence shows he was selected for promotion to colonel by the 28 September 2007 DA SSB under the 2006 criteria, which was senate confirmed on 9 December 2006.  He was promoted to the pay grade of O-6 effective the date he was assigned to an O-6 position.  He has provided no evidence to support any of the contentions that he would have been promoted earlier than 13 May 2008 or that he was assigned to an O-6 position earlier than 13 May 2008.

3.  His contentions pertaining to the other individual who was granted an adjustment to her DOR by this Board has also been considered.  However, that individual was granted an earlier DOR because she provided evidence to show that had she been selected for promotion during her original promotion board she would have been included as part of the assignment slating to higher grade positions that occurred in late 2006 and that officers in her specialty who were selected by that promotion board were assigned through the colonel slating process and promoted with DORs between 14 May 2007 and 3 December 2007. Unlike that officer, the applicant has not provided evidence to show that he would have been assigned to an O-6 position had he been selected for promotion earlier.


4.  Reiterating the events that resulted in his original non-selection for promotion to O-6 is not a sufficient basis for adjusting his DOR.  Based on the evidence of record he was not qualified for promotion to O-6 until he was assigned to an 
O-6 position.

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

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)                                         AR20100009155



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)