IN THE CASE OF:	  

		BOARD DATE:	  12 August 2010

		DOCKET NUMBER:  AR20100011303 


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 to captain in the U.S. Army Reserve (USAR).

2.  The applicant states his date of rank to captain is incorrect.  He states he was passed over for promotion to captain in 2006 because the promotion board said he had not completed the required civilian or military training for promotion consideration to captain.  He states his current date of rank to captain is 8 November 2008; however, it should be earlier.  He states he recently was mobilized from the Individual Ready Reserve (IRR) and he now would like to continue his career in the USAR.

3.  The applicant provides the following documentary evidence:

	a.  a memorandum of promotion notification status, issued by U.S. Army Human Resources Command, St. Louis, MO (USAHRC-STL), dated 22 February 2007;

	b.  Orders B-10-806493, issued by USAHRC-STL, dated 10 October 2008, promoting him to captain;

	c.  DA Form 1059 (Service School Academic Evaluation Report), dated 17 October 2002; and

	d.  college transcripts from the University of Southern Florida.

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service, the applicant was commissioned in the USAR on 9 May 2002 after completing Officer Candidate School (OCS) at Fort Benning, GA.  He entered active duty on the same day, incurring a 3-year active duty commitment.  He completed his initial officer basic course in his area of concentration of 74A (Chemical Officer).

2.  The applicant's records maintained in the interactive Personnel Electronic Records Management System (iPERMS) contain his college transcripts showing he received his bachelor degree on 4 May 2001 and he completed the officer basic course on 17 October 2002.

3.  The applicant was promoted to first lieutenant by Order Number 293-003, issued by USAHRC, Alexandria, VA (USAHRC-Alexandria), dated 20 October 2003.  His effective date and date of rank is shown as 9 November 2003.

4.  The applicant's service records show he was honorably released from active duty (REFRAD) on 9 May 2005 upon completion of his 3-year active duty commitment.  He was transferred to the USAR Control Group (Reinforcement) to complete his statutory military service obligation.  He received a DD Form 214 (Certificate of Release or Discharge from Active Duty) showing his rank and pay grade upon separation was first lieutenant in pay grade O-2 with a date of rank of 9 November 2003.

5.  By memorandum, dated 22 February 2007, USAHRC-STL notified the applicant that the Department of the Army (DA) Captain Army Reserve Components Mandatory Selection Board for Fiscal Year (FY) 2006 did not select him for promotion.  This memorandum states the applicant's promotion record reviewed by the promotion board did not show he had completed the required civilian or military educational requirements for favorable consideration.  He was advised to provide the required documentation.  In addition, the memorandum stated that if he met the educational requirements one day prior to the date the promotion board convened, he could request promotion reconsideration.

6.  The FY 2007 DA Captain Army Reserve Components Mandatory Selection Board met and favorably recommended the application for promotion to captain. 

7.  On 8 November 2008, the applicant was promoted to captain in the USAR by USAHRC-STL Orders B-10-806493, dated 10 October 2008, with a date of rank of 8 November 2008.

8.  The applicant was ordered to active duty from the IRR on 5 April 2009 for the purpose of mobilization in support of Operation Iraqi Freedom.  He served in Iraq from 12 June 2009 to 8 March 2010.

9.  On 15 April 2010, the applicant was honorably REFRAD and he was transferred to the USAR Control Group (IRR).  He was issued a DD Form 214 showing he had completed 1 year and 11 days of active service during this period of mobilization.

10.  In the processing of this application, on 9 April 2010, an advisory opinion was obtained from the Chief, Special Actions Branch, DA Promotions,
USAHRC–STL.  The advisory official stated the applicant was denied promotion to captain by the 2006 DA Reserve Components Captain Selection Board because his promotion record lacked verification of his baccalaureate degree.  In 2007, the mandatory promotion board selected him for promotion to captain establishing his effective date of rank as 8 November 2008.  This promotion date was established based on the requirement that non-unit officers (IRR) not be promoted until they reach their maximum time in grade requirements for promotion.  The advisory official stated the applicant had the basis for application to the DA Special Selection Board (SSB) because he had produced documentary evidence showing he had completed his degree prior to the FY 2006 captain's mandatory promotion board.  However, if granted a review by an SSB, it would not change his effective date or date of rank to captain.  The applicant is ineligible for an earlier date of rank based on the five-year maximum time in grade requirement that he met on 8 November 2008.

11.  On 3 May 2010, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

12.  In support of his application, the applicant provided his college transcripts showing he graduated from the University of Southern Florida with a bachelor's degree on 4 May 2001.  The second document shows he completed the officer basic course on 17 October 2002.

13.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) states, in pertinent part, that the effective date of promotion for commissioned officers may not precede the date on which the promotion memorandum is issued and the promotion memorandum will not be issued before the date the promotion board results are approved and confirmed by the Senate (if required).  In addition, the officer must be assigned or 


attached to a position in the higher grade or, if an Individual Ready Reserve or Individual Mobilization Augmentee officer selected by a mandatory promotion board, they must have completed the regulatory maximum years of service in their present grade before being promoted to the next higher grade.  For promotion to captain, the maximum time in grade requirement in the grade of first lieutenant is five years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his date of rank to captain in the USAR is incorrect.

2.  The applicant's record could be presented to a DA SSB for promotion consideration to the rank of captain in accordance with the guidance for the FY 2006 promotion criteria for captain in the Army Reserve Component because evidence of his bachelor degree wasn't in his promotion packet.

3.  However, it would serve no purpose to have an SSB consider the applicant for promotion to captain.  Based on regulatory guidance, the applicant's effective date and date of rank to captain cannot be changed to an earlier date.  By the applicable Army regulation, a non-unit officer's promotion date to captain is based on five years maximum time in grade as a first lieutenant.  The applicant's date of rank to first lieutenant was 9 November 2003.  Therefore, his mandatory date for promotion to captain is five years from this date or 8 November 2008.

4.  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)                                         AR20100011303



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ABCMR Record of Proceedings (cont)                                         AR20100011303



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