IN THE CASE OF:	  

		BOARD DATE:	  21 April 2011

		DOCKET NUMBER:  AR20100017889 


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 (DOR) for lieutenant colonel (LTC) to 16 December 2008 or 15 January 2009.

2.  The applicant states:

* the 2008 LTC Board was approved on 16 December 2008 and released on 15 January 2009
* his DOR is 27 January 2009
* through no error or delay on his part, the Division or Group G-1 did not place him into an LTC position
* there was a delay on their part and eventually they were notified to do so
* his peers in adjacent groups within the same Division were already positioned properly on the units Unit Manning Report (UMR) and received an earlier DOR
* for this reason, he respectfully requests the same DOR as his peers 

3.  The applicant provides:

* emails from the Office of Promotions (Reserve Component)
* his promotion orders, dated 6 March 2009
* his ARPC Form 249-E (Chronological Statement of Retirement Points)


CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the Regular Army and U.S. Army Reserve (USAR), he was appointed as a second lieutenant in the USAR on 28 September 1988.  He was promoted to major on 19 June 2002.

2.  He was selected for promotion to LTC by the 2008 LTC Department of the Army (DA) Reserve Components Selection Board.  The board was approved on 16 December 2008.

3.  He was promoted to LTC on 27 January 2009.

4.  He provided emails from the Office of Promotions (Reserve Component) which state, in pertinent part, he was not assigned to an LTC or a higher graded position prior to 27 January 2009 (his position assignment date).

5.  In the processing of this case, on 26 January 2011, a staff advisory opinion was obtained from the Chief, Special Actions Branch, DA Promotions, U.S. Army Human Resources Command, Fort Knox, KY.  The advisory official states:

	a.  the applicant was assigned to a Troop Program Unit (TPU) when he was selected for promotion by the 2008 LTC DA Reserve Components Selection Board that was approved on 16 December 2008.

	b.  in accordance with Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 4-21b(2), a unit officer will have a promotion date and effective date no earlier than the date the board is approved, provided he/she is assigned to a position in the higher grade.  When the board approval is before assignment to the position in the higher grade, the promotion date and effective date will be the date of assignment.

	c.  he was assigned to the higher position on 27 January 2009, after the board's approval date.

   d.  he was promoted with a DOR and effective date of 27 January 2009 in accordance with the regulation.

   e.  documents provided do not verify he was assigned to a position in the higher grade prior to 27 January 2009; therefore, he is not eligible for an earlier DOR.


   f.  based on the information provided, it is recommended his request for an earlier DOR be disapproved.  However, if he provides proof from his unit he was assigned to a position in the higher grade prior to 27 January 2009, his request should be reevaluated.

6.  On 10 February 2011, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He responded on 19 February 2011.  In summary, he stated:

* his request for a change in his DOR is based upon the representation of his senior rater at that time and the G-1 from 1st Group
* both individuals had informed him that he would be placed in a vacant O-5 position before the board released its results
* some of his peers from this same promotion list have an effective date of 16 December 2008
* others have a date of 15 January 2009 when the Brigade had the groups move Soldiers into the proper position for promotion
* since there was no error or lack of effort on his part he respectfully requests that he not be penalized based upon some error in the G-1 section
* when he heard that other officers were receiving their orders for promotion he inquired about his own and that is when it was noticed he had not been moved on time
* subsequently the G-1 made the change
* human resources personnel should understand that the delay was an oversight/error on the part of certain people when it comes to managing the UMR
* he once again asks that he not have a date different than his peers and it should be 16 December 2008 or 15 January 2009 when wholesale changes were made within his Brigade

7.  Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve Component officers.  Paragraph 4-21b(2) of this regulation states unit officers selected by a mandatory board will have a promotion date and effective date no earlier than the date the board is approved or the date of Senate confirmation (if required), provided they are assigned to a position in the higher grade.  When the board approval or, if required, Senate confirmation is before assignment to the position in the higher grade, the effective date and the date of promotion will be the date of assignment to the higher graded position.  


DISCUSSION AND CONCLUSIONS:

1.  Evidence shows the applicant was selected for promotion by the 2008 LTC DA Reserve Components Selection Board.  The board was approved on
16 December 2008 and released on 15 January 2009.

2.  His contentions were carefully considered; however, the governing regulation requires Soldiers be in the higher graded position before being promoted.

3.  Evidence also shows he was assigned to an LTC position on 27 January 2009 and he was accordingly promoted to LTC with an effective date and date of rank of 27 January 2009.  There is no evidence of record and the applicant provided none that show he was assigned to a position in the higher grade on
16 December 2008 or 15 January 2009 or before 27 January 2009.  Therefore, in accordance with the governing regulation, there is an insufficient 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)                                         AR20100017889



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ABCMR Record of Proceedings (cont)                                         AR20100017889



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