BOARD DATE:	  12 April 2011

		DOCKET NUMBER:  AR20100017538 


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 promotion to major (MAJ)/O-4 be backdated to compensate for requested inclusion in the September 2009 Position Vacancy Board (PVB) for Troop Program Unit (TPU) positions.  He also requests reassignment to the O-4 position in which he was serving prior to being involuntarily reassigned.

2.  The applicant states he met the eligibility requirements and he tried on numerous occasions to communicate to his chain of command that he wanted to be considered for a U.S. Army Reserve (USAR) TPU Position Vacancy promotion.  He was told he needed to contact the Army Reserve Sustainment Command (ARSC) unit administrator.  However, the unit administrator was unresponsive to his requests and he was unable to obtain the information he needed.  He was finally informed that he had missed the cutoff for the 2009 board.  As a result he has been involuntarily moved to a captain (CPT)/O-3 position in the same functional area.

3.  The applicant provides copies of email he:

* sent to his detachment commander, subject:  USAR TPU Position Vacancy Promotion, dated 22 June 2009
* sent to the unit administrator requesting information regarding vacancy promotions, dated 23 June 2009 


* sent to his detachment commander subject:  Due Outs, dated 
11 September 2009 
* received from the unit administrator, subject:  September 2009 Position Vacancy Board Application of Instruction, dated 11 September 2009

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a second lieutenant (2LT)/O-1 in the New Jersey Army National Guard (NJARNG) on 30 July 2000.  He was promoted to CPT, effective 4 October 2004.  Effective 6 May 2006, he was transferred to the USAR.

2.  On 26 May 2009, the U.S. Army Human Resources Command, St. Louis, MO (HRC-STL), published a memorandum, subject:  Application Instructions for the September 2009 PVB for TPU Positions.  The board was scheduled to convene on or about 23 September 2009.  The instructions stated that "all position applications must be received by 10 July 2009."

3.  In the processing of this case, on 3 February 2011, an advisory opinion was obtained from the Chief, Officer Promotions, Special Actions Branch, U.S. Army Human Resources Command, Fort Knox, KY.  The advisory official states:

	a.  The utilization of the PVB process is at the discretion of the commander to select an officer of his or her choosing.  The non-submission of the applicant's PVB application indicates that the unit commander chose not to utilize the PVB process to fill said vacancy.

	b.  The officer has no recourse for non-submission or non-selection due to the unit's decision not to fill the vacancy through the PVB process.

4.  On 7 February 2011, the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 11 March 2011, he responded by providing the letter from his detachment commander at the time to the effect that the detachment commander had approved and forwarded the applicant's PVB request to Headquarters, Army Reserve Sustainment Command (ARSC) for further approval.  However, through no fault of the applicant, and due to an oversight on the part of the ARSC, the applicant's request was not able to be acted on as part of the 2009 PVB.

5.  Army Regulation 135-155 (Army National Guard and U.S. Army Reserve Promotion of Commissioned Officers and Warrant Officer Other than General 


Officers) prescribes the policies and procedures for the promotion of Reserve Component officers.  The regulation specifies the USAR unit position vacancy 
promotion system is designed to promote officers to fill vacancies in USAR units that cannot be filled by local commanders with qualified officers of the authorized grade.  Occasionally, assignments cannot be made from local resources (officers assigned to units and other local non-unit officers on the Reserve Active Status List).  In this event, the commander of the unit experiencing the position vacancy will send to the appropriate area commander the names of all USAR unit officers in the next lower grade who meet promotion consideration/eligibility requirements.  Authorized valid position vacancies may be filled through promotion of the best-qualified and geographically available officer to the grades of captain through colonel.  All officers in the next lower grade must have met the minimum time in grade for promotion to the next higher grade and be geographically available (non-mobilized) to serve in the position for which considered.

6.  Army Regulation 135-155 also specifies that the unit commander will initiate position vacancy promotion procedures and forward a memorandum listing all unit officers eligible for promotion consideration.  The memorandum will include the following information:  rank of position, branch, area of concentration, position title, unit, unit identification code, location of unit, table of organization and equipment/table of distribution and allowances number, paragraph/line number, and date of position vacancy.  An officer is not eligible for consideration if he or she was not approved for the position per Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should receive a backdated promotion to MAJ/O-4 and be reassigned to the O-4 position he occupied prior to being involuntarily moved to an O-3 position was carefully considered.

2.  Although his detachment commander at the time states a packet was forwarded to ARSC, there is no available evidence to verify that he would have been selected to fill that vacancy had the ARSC acted promptly.

3.  In view of the foregoing, there is insufficient evidence to grant 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)                                         AR20100017538



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ABCMR Record of Proceedings (cont)                                         AR20100017538



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