IN THE CASE OF:	  

		BOARD DATE:	  17 March 2011

		DOCKET NUMBER:  AR20100018522 


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, in effect:

	a.  a waiver of the educational requirement for promotion to major (MAJ)/O-4 and consideration for promotion to MAJ by a special selection board (SSB) under the fiscal years (FY) 2000-2003 MAJ Promotion Selection Boards (PSB) criteria;

	b.  if selected for promotion to MAJ under an earlier PSB criteria, payment of all back pay and allowances due as a result;

	c.  consideration for promotion to lieutenant colonel (LTC) by an SSB under FY06-08 LTC PSB criteria;

	d.  if selected for promotion to LTC by an SSB, payment of all back pay and allowances due as a result; and

	e.  recalculation of retired pay.

2.  The applicant states:

	a.  the U.S. Army Reserve Personnel Command [currently known as U.S. Army Human Resources Command (AHRC)] failed to promote him to captain (CPT)/O-3 in 1993 while he was in the Individual Ready Reserve (IRR);

	b.  his promotion to CPT was finally completed through Inspector General (IG) intervention; however, the official promotion document was misfiled in his official military personnel file (OMPF) as an award document.  As a result he was lost in the system and he was unable to obtain a class seat to attend the required training necessary for promotion to MAJ or given consideration for promotion to MAJ in a timely manner;

	c.  he was finally considered and selected for promotion to MAJ more than 4 years behind his year group;

	d.  his previous requests for correction of his promotions were denied by the AHRC promotions branch; and

	e.  the AHRC promotions branch cannot correct his promotion issues through standard regulations as his situation does not fit standard situations.

3.  The applicant provides:

* two self-authored memoranda, dated 12 April and 18 June 2010
* a timeline graph
* a memorandum to him from AHRC, subject:  Promotion as a Reserve Commissioned Officer of the Army, dated 5 April 2000
* a memorandum for record, subject:  Record of Events RE:  Promotion of CPT (applicant's name), dated 12 February 2009
* two AHRC letters, dated 28 September 2007 and 12 May 2010
* a self-authored memorandum, subject:  Record of Email Correspondence with Promotion Branch for MAJ (applicant's name), dated 12 April 2010
* seven pages of e-mail documents
* a memorandum, subject:  Letter of Recommendation for Continuation on Active Reserve (COAR) Status for MAJ (applicant's name), dated 12 May 2010
* a self-authored letter, subject:  Discrepancy in Letter of Recommendation for COAR Status for MAJ (applicant's name), dated 25 June 2010

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service, the applicant's military record shows he was appointed as a U.S. Army Reserve (USAR) commissioned officer in the rank/grade of second lieutenant (2LT)/O-1 on 16 July 1986.

2.  On 17 July 1986, he was appointed as a 2LT in the New York Army National Guard (NYARNG) in the field artillery branch, he was granted temporary Federal recognition, and he executed the oaths of office.  He continued to serve until he was separated from the NYARNG and transferred to the USAR Control Group effective "15 November 1987" [sic].

3.  He was ordered to active duty as an obligated volunteer officer in the rank/grade of 2LT/O-1 and he entered active duty on "14 November 1987" [sic].  He was promoted to first lieutenant (1LT)/O-2 on 16 July 1989.

4.  On 14 September 1990, he was released from active duty (REFRAD) by reason of reduction in force and he was transferred to a USAR troop program unit (TPU).  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he completed 2 years, 10 months, and 1 day of net active service during this period.

5.  Headquarters, 7th U.S. Army Reserve Command, Orders 13-9, dated 10 December 1992, released the applicant from his USAR TPU by reason of voluntary assignment and assigned him to the USAR Control Group.

6.  On 18 July 1999, he was voluntarily reassigned from the USAR Control Group to the 4th Brigade, 91st Training Support Division.

7.  On 5 April 2000, AHRC issued a promotion memorandum showing the applicant was promoted to CPT with an effective date of 11 October 1999 and a date of rank (DOR) of 15 July 1993.  There are no documents contained in his OMPF to show any IG involvement with this promotion.

8.  His officer evaluation reports for the periods indicated show:

	a.  18 July 1999-17 July 2000 and 18 July 2000-16 July 2001 – he failed the Army Physical Fitness Test (APFT) and the allowable height and weight standard;

	b.  17 July 2001-16 July 2002 – he passed the APFT, but failed the allowable height and weight standards; and

	c.  17 July 2002-16 July 2003 – he passed the APFT and met allowable height and weight standards in July 2003.  This record does not show the exact date in July 2003 he met these qualifications.

9.  AHRC memorandum, dated 12 July 2004, announced the applicant's promotion to MAJ with an effective date and DOR of 30 June 2004.

10.  On 28 September 2007 and 12 May 2010, the Chief, Office of Promotions, Reserve Components (RC), informed the applicant of the following:

	a.  he was considered and selected for promotion to CPT by the 1993 CPT Department of the Army (DA) RC Selection Board (RCSB); however, a copy of the promotion order is not on the interactive Personnel Electronic Records Management System (iPERMS);

	b.  the reasons for the delay of his promotion to CPT are unknown and can only be speculated that an outdated physical examination, dated 5 June 1986, was the reason;

	c.  based on 7 years of time in grade for promotion to MAJ, he should have been considered for promotion to MAJ under criteria years 2000-2003; however he did not meet the military education requirement until January 2004 and, as such, there is no basis for an SSB;

	d.  he can apply to the Army Board for Correction of Military Records (ABCMR) to request a waiver of education requirement for promotion to MAJ;

	e.  he was considered for promotion to LTC by the 2009 LTC RCSB and further eligibility for consideration under an earlier criteria will be based on approval of actions concerning his MAJ promotion; and

	f.  he obtained the required education for promotion to LTC on 31 July 2007; therefore, the earliest criteria he would be eligible to be considered under is 2007.

11.  A current review of the applicant's iPERMS record shows that his promotion memorandum to CPT is filed as an award document in the performance section of his OMPF.  It also shows this document was added to his iPERMS record on 30 May 2008.

12.  On 16 November 2010, the applicant was honorably retired by reason of permanent disability in the rank of MAJ.  The DD Form 214 issued during this period shows he completed 11 years, 4 months, and 27 days of total active service.

13.  The applicant provides a memorandum from the staff administrator of Headquarters, 3rd Battalion, 104th Regiment, 80th Training Command, dated 12 February 2009.  In it the staff administrator states:

	a.  she was the unit administrator for the applicant's unit from 1995 through September 2002 and again as the G-1 Sergeant Major due to the Presidential call up in support of Operations Iraqi/Enduring Freedom;

	b.  the applicant was assigned as the Brigade S-3 in 1997, at which time she worked with him to recover and update his iPERMS files to correct his promotion status;

	c.  after an IG investigation, he was promoted to CPT with a DOR in 1993;

	d.  she personally contacted the applicant's AHRC branch manager to try to secure course seats for the necessary courses for promotion to MAJ and LTC and she was instructed that the Army Training Requirement Reporting System (ATRRS) operator would have to submit the required applications for such courses;

	e.  time and again, she worked with their brigade to get the applications in and approved to no avail as the applications were continually denied at the headquarters level;

	f.  repeated contact with command personnel and the AHRC website for board dates and packet information achieved no definite date or indication when the applicant would be eligible for promotion boards;

	g.  she and the applicant were able to secure a definite board date after the applicant finally got through to a promotions branch official who told him "he was lost in the system with no record of being eligible for consideration" and at that time he was scheduled for the next board; and

	h.  once the board information was obtained, the applicant's packet was put together and, although they met additional road blocks, the applicant was finally allowed to attend the advanced course once his board date was confirmed.

14.  The applicant provides seven pages of email documents, dated between 7 January and 8 February 2010, wherein he communicates with an AHRC promotions branch official concerning his promotions to CPT, MAJ, and LTC.

15.  The FY03 MAJ, Army Promotion List (APL), Board convened on 3 March 2003, recessed on 4 March 2003, and was approved on 17 July 2003.

16.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officer Other Than General Officers) provides the policy for selection and promotion of commissioned officers of the ARNG and USAR.  Paragraph 2-5(a) states that to be eligible for consideration for promotion to the next higher grade, an ARNG or USAR officer must have continuously performed service on either the Reserve Active Status List or the Active Duty List, or a combination of both lists, during the 1-year period ending on the convening date of the promotion board and must meet the time-in-grade requirements in table 2-1 or table 2-3, as appropriate.  Table 2-1 states that for promotion from CPT to MAJ and from MAJ to LTC, the minimum years in the lower grade is 4 and the maximum years in the lower grade is 7.

17.  Army Regulation 135-155, paragraph 4-11, states an officer who has been recommended for promotion to the next higher grade must meet the standards of the Army Body Composition Program.  An officer's promotion is automatically delayed when the officer is documented as overweight as defined in Army Regulation 600-9 (The Army Weight Control Program) or has failed the most recently administered APFT.

18.  Army Regulation 135-155 specifies that promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error which existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's non-selection by a promotion board and that had such error(s) been corrected at the time the individual was considered, a reasonable chance existed that the individual would have been recommended for promotion.  The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required civilian and/or military schooling.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant failed the APFT from 19 July 1999 through 16 July 2001.  He also failed meet the standards of the Army Body Composition Program from 18 July 1999 through June 2003.  The evidence of record does not show and the applicant has not satisfactorily shown he met allowable height and weight standards prior to 17 July 2003, the approval date of the FY03 MAJ APL.  Accordingly, he was promoted to MAJ by the FY04 MAJ APL on 30 June 2004, having met all qualifications for promotion to that rank.  As a result, there is no basis upon which to grant him an educational waiver for promotion to MAJ, consideration for promotion to MAJ by an SSB, further consideration for promotion to LTC by an SSB, or recalculation of his retired pay.

2.  In view of the foregoing, the applicant's request should be denied.


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 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)                                         AR20100018522



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ABCMR Record of Proceedings (cont)                                         AR20100018522



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