IN THE CASE OF:	  

		BOARD DATE:	  11 January 2011

		DOCKET NUMBER:  AR20100020328 


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 status be changed to show he was reinstated into the Individual Ready Reserve (IRR) of the U.S. Army Reserve (USAR) for the purpose of correcting his effective date and date of rank (DOR) to captain (CPT).

2.  The applicant states he was told his DOR and effective date of rank for promotion to CPT cannot be adjusted unless he is transferred back into an active Reserve status.  The transfer would allow him to have an earlier DOR which would also change his time in grade (TIG) as a CPT.  With the increased TIG, he may have been eligible for promotion to major (MAJ).

3.  The applicant provides an exchange of emails with various individuals. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 7 March 1966.

2.  Having had prior enlisted service, his records show he was appointed as an Army Nurse Corps second lieutenant (2LT) in the USAR and executed an oath of office on 21 November 1997.  He was credited with 7 months and 21 days of constructive service credit thus adjusting his DOR for 2LT to 30 March 1997.  He was assigned to the 455th Field Medical Hospital, Providence, RI.


3.  On 15 January 1999, he completed the Army Medical Department (AMEDD) Officer Basic Course.  In April 1999, he was voluntarily reassigned to the 309th Combat Support Hospital and in December 2000, he was further reassigned to the 402nd Medical Detachment, both at Hanscom Air Force Base, MA.  

4.  On 12 October 2001, by memorandum, an official at the USAR Personnel Command (now known as the U.S. Army Human Resources Command or HRC), St. Louis, MO, certified that the applicant could not be promoted to first lieutenant (1LT) on his promotion eligibility date of 31 March 1999 because he did not meet all of the promotion qualifications (security clearance).  He met the qualifications on 26 June 2001. 

5.  On 12 October 2001, by memorandum, HRC-STL notified the applicant he was promoted to 1LT with an effective date and DOR of 26 June 2001.

6.  On 16 September 2002, he petitioned the Army Board for Correction of Military Records (ABCMR) to adjust his DOR to 1LT from 26 June 2001 to 21 November 1999.

7.  On 1 July 2003, the ABCMR granted him relief and directed correction of his records to show he was promoted to 1LT with an effective date and DOR of 31 March 1999 (2 years from his DOR as a 2LT).  However, this action would not be carried out by HRC-STL until a much later date (March 2009).

8.  On 25 April 2005, HRC-STL published official orders announcing his promotion to CPT with an effective date and DOR of 23 March 2005.

9.  On 14 November 2008, he again petitioned the ABCMR for correction of his records, based on the earlier decision to correct his DOR to 1LT, as follows:

* Show the effective date of promotion and DOR to CPT occurred in 2001
* Promotion to MAJ with a 2004 DOR

10.  On 3 March 2009, HRC-STL issued the applicant a memorandum correcting his effective date and DOR for promotion to 1LT to 31 March 1999 as previously directed by the ABCMR.

11.  In connection with the applicant's 14 November 2008 petition, the Board requested an advisory opinion from HRC-STL.  On 11 March 2009, by memorandum, an official at the Department of the Army (DA) Promotions, 
HRC-STL recommended disapproval of the applicant's request for promotion to CPT with a 2001 DOR and promotion to MAJ with a 2004 DOR.  The official stated that based on the applicant's adjusted DOR to 1LT, the applicant should have been eligible for consideration for promotion to CPT by the 2003 DA Reserve Components AMEDD Selection Board.  His promotion file was not viewed by the 2004 Board and therefore he was eligible for consideration by a special selection board (SSB) under the 2003 and 2004 criteria.  If selected, his DOR to CPT of 24 March 2005 would be accordingly adjusted.  Additionally, if selected and promoted under the 2003 criteria, he would also be eligible for consideration by an SSB for promotion to MAJ. 

12.  On 30 April 2009, HRC-STL issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter).  

13.  The applicant was transferred to the Retired Reserve effective 29 July 2009, in the rank of CPT.

14.  On 21 December 2009, by memorandum, HRC-STL notified the applicant he had been considered by a DA SSB which convened on 15 May 2009 for promotion to CPT under the 2003 criteria.  The memorandum also stated the applicant was selected for promotion to CPT with a DOR of 30 March 2004.  

15.  Title 10, U.S. Code, section 14317 (Officers in transition to and from the active-status list (RASL) or active duty list) states if a Reserve officer on the RASL is transferred to an inactive status or to a retired status after having been recommended for promotion to a higher grade under this chapter or chapter 36 of this title but before being promoted, the officer shall be treated as if the officer had not been considered and recommended for promotion by the selection board or examined and been found qualified for Federal recognition; and may not be placed on a promotion list or promoted to the higher grade after returning to an active status, unless the officer is again recommended for promotion by a selection board convened under chapter 36 of this title or section 14101(a) or 14502 of this title.

16.  Army Regulation 135-155 (Promotion of Commissioned Officers and warrant Officers Other Than General Officers) provides policy and procedures for the promotion of commissioned officers of the Army Reserve.  It states that for promotion from 1LT to CPT, the minimum number of years in the lower grade is  2 years and the maximum number of years in the lower grade is 5 years, and for promotion from CPT to MAJ, the minimum number of years in the lower grade is 4 years and the maximum number of years in the lower grade is 7 years.  

17.  Army Regulation 135-155 states that SSBs are convened to consider commissioned officers for promotion when it is discovered that an officer was not considered by a regularly scheduled board due to an administrative error; or when the action by a board which considered an officer was contrary to law or involved a material error; or the board which considered an officer did not have before it for consideration some material information.  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 would have resulted that the individual would have been recommended for promotion.  

DISCUSSION AND CONCLUSIONS:

1.  An SSB convened on 15 May 2009 and considered and selected the applicant for promotion to CPT under the 2003 criteria with an effective date and DOR of 30 March 2004.  He was notified of this action on 21 December 2009.  However, by the time the applicant was notified he had already been transferred to the Retired Reserve on 29 June 2009, thus placing him in an inactive status.  

2.  By law, an officer on the RASL who is transferred to an inactive status or to a retired status after having been recommended for promotion to a higher grade but before being promoted, the officer shall be treated as if the officer had not been considered and recommended for promotion 

3.  An SSB is appropriate for mandatory promotion boards only.  A previously-held SSB established that the applicant's DOR to CPT would be 30 March 2004. Since the minimum number of years in the lower grade for promotion from CPT to MAJ is 4 years and the maximum number of years in the lower grade is 
7 years, the earliest he would have qualified for consideration for promotion to MAJ would have been 2011.  Since he was transferred to the Retired Reserve in 2009, he does not qualify for an SSB for promotion consideration to MAJ. 

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:

* Voiding his 29 July 2009 transfer to the Retired Reserve and showing he was assigned to the Individual Ready Reserve on that date
* Showing he met all the eligibility criteria for promotion to CPT effective    30 March 2004
* Promoting him to the rank of CPT with the appropriate DOR
* Paying him any associated back pay and allowances




      _______ _   _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)                                         AR20100020328



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ABCMR Record of Proceedings (cont)                                         AR20100020328



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