IN THE CASE OF:	  

		BOARD DATE:	  26 October 2010

		DOCKET NUMBER:  AR20100013721 


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 his date of rank (DOR) to lieutenant colonel/pay grade O-5 be adjusted from 21 September 2009 to 9 June 2009.

2.  The applicant states he was in an O-5 slot from 9 June 2009 until 13 July 2009.  Promotion orders were requested through Human Resources Command (HRC) but he was involuntarily cross-leveled into a new unit for mobilization in an O-4 (major) slot prior to promotion orders being issued.

3.  The applicant provides copies of:

* his assignment history
* an AHRC Form 56-R (Promotion Qualification Statement), dated 8 June 2009
* an email to HRC-St. Louis, dated 22 July 2009
* a Unit Manning Report (UMR) as of 9 June 2009
* email correspondence concerning a cross-level tasker, dated from
29 June to 8 July 2009

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed a second lieutenant on 27 May 1989 in the U.S. Army Reserve (USAR) and he continues to serve on active duty in the rank of lieutenant colonel.  He had previously served 2 years, 8 months, and 9 days of service as an enlisted member in the USAR.

2.  The applicant served in Iraq during the period 24 December 2006 to
9 December 2007.

3.  The applicant was considered and selected by the 2008 Lieutenant Colonel, Army Promotion List, Department of the Army Reserve Components Selection Board held on 8 September 2008.  The board results were released on 
15 January 2009.  At that time the applicant was not assigned to an O-5 slot.

4.  The assignment history provided by the applicant shows he was assigned to the 104th Training Division (Institutional Training) on 4 June 2009.

5.  An AHRC Form 56-R confirms the applicant was assigned to the 11th Battalion, 108th Regiment, 2nd Brigade, 104th Division on 4 June 2009.  It further shows upon promotion he would be positioned in an authorized O-5 slot under position number 0785.

6.  The UMR for the 11th Battalion, 108th Regiment, as of 9 June 2009, shows the applicant was assigned to position number 0785, an authorized O-5 slot on
9 June 2009.

7.  In an email, dated 1 July 2009, the applicant alerted the staff administrator of the 11th Battalion, 108th Regiment, 2nd Brigade, 104th Division that he had not received his promotion orders.  He also stated that his name would "fall off of a few more cross-leveling lists when the system identifies me as an O-5."

8.  On 13 July 2009, the applicant was involuntarily cross-leveled to another unit in an O-4 slot for mobilization.

9.  An email to HRC-St. Louis, dated 22 July 2009, from the staff administrator of the 11th Battalion, 108th Regiment, 2nd Brigade, 104th Division forwarded the AHRC Form 56-R, dated 8 June 2009, and the page of the battalion's UMR containing the applicant's assignment to an authorized O-5 slot.  It is unknown if this was the initial submission of the documents or a followup from a previous submission.

10.  HRC-St. Louis, Orders B-09-906193, dated 3 September 2009, promoted the applicant to lieutenant colonel with an effective date and DOR of
21 September 2009, his promotion eligibility date (date he met 7 years time in grade).

11.  In the processing of this case, on 11 August 2009, an advisory opinion was received from the Chief, Special Actions Branch, Department of the Army Promotions, HRC-St. Louis.  The advisory official recommended denial of the applicant's request for an earlier DOR.  The official stated the Office of Promotions, Board Support Team stated the AHRC Form 56-R that was submitted was outdated for the timeframe being requested and the team did not receive anything asking them to promote the applicant prior to his promotion eligibility date.

12.  On 9 September 2010, the applicant submitted a statement in rebuttal to the HRC-St. Louis opinion.  He states he was in an O-5 slot on 9 June 2009 and the AHRC Form 56-R was signed on 8 June 2009.  He states that by the time
HRC-St. Louis received and reviewed the AHRC Form 56-R he was involuntarily cross-leveled out of the O-5 slot and placed in an O-4 slot.  HRC-St. Louis refused to issue promotion orders and told him he would have to wait until his promotion eligibility date for promotion.  He states he is being penalized for being involuntarily cross-leveled for deployment to Iraq, resulting in over 3 months of lost time in rank.

13.  Army Regulation 135-155 (Promotion of commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for the promotion of Reserve officers.  Paragraph 4-18 states the Secretary of the Army may determine whether an adjustment must be made to an officer's DOR and effective date of promotion due to an involuntary delay of promotion of the officer.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DOR to lieutenant colonel/pay grade O-5 should be adjusted from 21 September 2009 to 9 June 2009.

2.  The evidence confirms he was selected for promotion to lieutenant colonel by the 2008 RCSB with an approval date of 15 January 2009.  The UMR and AHRC Form 56-R show he was assigned to a lieutenant colonel/O-5 slot on 9 June 2009.  

3.  The applicant alerted his unit's staff administrator on 1 July 2009 that he had not received his promotion orders.  It is clear that if he had been timely promoted to O-5 he would not have been cross-leveled to an O-4 slot.

4.  He was involuntarily reassigned for mobilization to an O-4 billet on 13 July 2009.  On 22 July 2009, the AHRC Form 56-R and the UMR were forwarded to HRC-St. Louis for his promotion.  These two documents confirm his assignment to an authorized O-5 slot prior to the cross-leveling and mobilization.

5.  The advisory official stated the AHRC Form 56-R was outdated for the timeframe requested.  However, the AHRC Form 56-R is dated 8 June 2009 and the UMR shows the applicant's assignment to the O-5 slot on 9 June 2009.

6.  If the proper documents had been timely submitted, received, and reviewed the applicant would have been promoted to lieutenant colonel with a date of rank and effective date of 9 June 2009.  This would have prevented him from being cross-leveled for mobilization in an O-4 slot on 13 July 2009.  The applicant's promotion was delayed through no fault of his own and this delay created an injustice that should now be corrected.  The applicant's actions did not contribute to the delay and he should not be penalized by a late promotion.

7.  Therefore, notwithstanding the advisory opinion received from HRC-St. Louis, it would be equitable and just to correct the applicant's records to show he was promoted to lieutenant colonel with an effective date and DOR of 9 June 2009, with entitlement to back pay and allowances based on this adjustment.

BOARD VOTE:

____X___  ____X___  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he was promoted to lieutenant colonel with an effective date and DOR of 9 June 2009, with entitlement to back pay and allowances based on this adjustment.



      ___________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)                                         AR20100013721



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ABCMR Record of Proceedings (cont)                                         AR20100013721



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