IN THE CASE OF:
BOARD DATE: 7 June 2011
DOCKET NUMBER: AR20100018537
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 that his date of rank (DOR) for promotion to lieutenant colonel (LTC) be adjusted from 7 June 2010 to 30 December 2009 or alternately to 1 April 2010.
2. The applicant states he was offered a Human Resources Command (HRC) Career Management Officer (CMO) position in May 2009 and he completed a permanent change of station in June 2009 to backfill the LTC/O-5 position. He completed the area of concentration (AOC) qualifying school in November 2009.
Upon return from the school the CMO informed him that another Soldier had been assigned to the same position.
3. He states his CMO informed him that he could retain the position, but he would have to give up the aviation branch and transfer into the new AOC 50A (Force Management) if he wanted to keep the LTC position. According to the CMO, HRC's interpretation of the regulation was that he would forfeit $840.00 a month in Aviation Career Incentive Pay (ACIP). He had already met his gates and according to the regulation, he was still eligible to continue to receive ACIP for another 5 years. The previous two incumbents were aviators and they were not required to forfeit ACIP or branch transfer to occupy the same assignment. Based on the HRC's interpretation of the regulation he declined the position. His chain of command reviewed the regulation and agreed with him that HRC's interpretation was inaccurate. HRC has since changed its position on the interpretation of the regulation, but unfortunately it was not in time to save his assignment or the 30 December 2009 promotion. At that time, he was already performing the duties of the LTC/O-5 position.
4. He states that he was never formally realigned into the force development position but worked in the LTC/O-5 capacity from mid-November 2009 until the middle of March 2010. He contends that in an effort to get him promoted, HRC offered him an interim LTC/O-5 G-1 assignment beginning 1 April 2010 which he accepted. Unfortunately, his CMO went on leave in the middle of March and did not advise his co-workers of the pending interim assignment. On 17 March 2010, his CMO's co-worker published orders assigning him to HRC with a report date of 7 June 2010. He was later informed that his new assignment prevented him from being realigned into the LTC position which once again prevented him from being promoted. He concludes he has been working in LTC positions since November 2009, but unfortunately he was never officially assigned to the positions.
5. The applicant provides an excerpt from Army Regulation 600-105 (Aviation Service of Rated Officers); a memorandum, dated 16 July 2010; a memorandum, dated 17 December 2009; and a Total Operational Flying Duty Credit (TOFDC) Table.
CONSIDERATION OF EVIDENCE:
1. The applicant is currently serving in the Active Guard Reserve (AGR) in the rank of LTC.
2. Orders B-06-004338, HRC, St. Louis, Missouri, dated 30 June 2010, promoted the applicant to the rank of LTC with a DOR and effective date of 7 June 2010.
3. In the processing of this case, an advisory opinion was obtained from the Chief, Officer Promotions, HRC. The opinion states the applicant's DOR to major (MAJ) of 17 July 2003 plus the maximum time in grade (TIG) for MAJ of 7 years established a promotion eligibility date of 16 July 2010. The applicant's AHRC Form 56-R (Promotion Qualification Statement) identifies a report date to the higher graded position as 7 June 2010. The opinion references Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) which states the DOR for an AGR officer will be the date the officer attained maximum TIG or the date on which assigned/attached to a position in the higher grade, whichever is earlier. The opinion concludes that the date the applicant was assigned to the higher position was the earlier of the two dates and thus correctly established his DOR as 7 June 2010.
4. The advisory opinion was provided to the applicant for acknowledgement and/or rebuttal. He responded and stated that Army regulations do not define or clarify the legal or official definition of the terms assigned/attached. Therefore, he argues he was assigned/attached to two positions in the higher grade, the Force Development Officer position and the Assistant Chief of Staff, G-1, position.
5. He provided a memorandum from the Deputy Commander, 11th Aviation Command, dated 16 July 2010, which essentially corroborates the applicant's contentions. He also provides a memorandum, dated 17 December 2009, that formally designates the list of aviation career development and functional area training assignments qualifying for TOFDC and a TOFDC Table that indentifies the Force Development Officer position as a qualifying position for TOFDC.
6. Army Regulation 135-155, paragraph 4-21, states AGR officers selected by a mandatory board will be promoted provided they are assigned/attached to a position in the higher grade. An AGR officer who is selected for promotion by a mandatory promotion board but who is not assigned/attached to a position in the higher grade, will be promoted on the date of assignment/attachment to a higher-graded position or the day after release from AGR status. The DOR will be the date the officer attained maximum TIG or the date on which assigned/attached to a position in the higher grade, whichever is earlier.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that his DOR to LTC should be adjusted to 30 December 2009 or in the alternative to 1 April 2010 because he was performing the duties of a higher-graded position since November 2009 was noted. However, the evidence provided does not show he was actually assigned to a valid LTC/O-5 position prior to 7 June 2010. The regulation requires assignment to the higher-graded position which he was finally able to obtain on 7 June 2010.
2. In the absence of an ARPC Form 155-R (Promotion Qualification Statement) or any other official documentation corroborating his contention that he was assigned to a valid LTC/O-5 position prior to 7 June 2010, there is no basis to grant the applicant's request.
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) AR20100018537
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ABCMR Record of Proceedings (cont) AR20100018537
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