IN THE CASE OF:	  

		BOARD DATE:	  19 May 2011

		DOCKET NUMBER:  AR20100020397 


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 correction of his date of rank (DOR) to captain (CPT)/O-3 from 29 May 2010 to 25 March 2010.

2.  The applicant states the following:

	a.  After trying to push this correction through the U.S. Army Human Resources Command (HRC) Office of Promotions (Reserve Component), he was told that office could not do it based on flagging actions and in accordance with Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 4-11c(10) and (f).

	b.  The flagging action occurred on 18 April 2010.

	c.  The definitive date he must have met requirements was 8 April 2010.

	d.  On 8 April 2010, he met all requirements.

	e.  Two references were given:

		(1)  Army Regulation 135-155, paragraph 4-11c(10) states a Soldier cannot be promoted if the Soldier failed to pass the most recent Army Physical Fitness Test (APFT).  He states that on the date of the official release (8 April 2010) he had passed the most recent APFT taken on 19 July 2009.  APFT's taken after the release date should not be taken into consideration for this promotion.

		(2)  Army Regulation 135-155, paragraph 4-11(f) states that if a promoted officer, within the first 6 months of promotion, is found to not be eligible for promotion on the promotion date, then the promotion will be delayed until the officer meets the requirements.  He is not aware why this was brought up as he was not promoted first and then found not to be eligible.

	f.  In simplicity, if the promotion orders were drafted and published on 8 April 2010, this would not be an issue.

3.  The applicant provides the following:

* AHRC Form 56-R (Promotion Qualification Statement) 
* email communication, dated 12 July 2010
* DA Form 705 (APFT Scorecard)

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the U.S. Army Reserve (USAR) on 15 May 2000.

2.  On 17 December 2004, he was appointed as a USAR commissioned officer in the rank of second lieutenant.  He was promoted to first lieutenant on 16 December 2006.

3.  His AHRC Form 56-R, dated 10 April 2010, shows in section II (Review by Officer's Immediate Commander):

* Officer under suspension of favorable personnel action – "No"
* Is position occupied by another officer – "No"
* Date Assigned/Matched to Position – "8 April 2010"

4.  His DA Form 705 shows the results of the following AFPT's:

* 19 July 2009 – passed
* 18 April 2010 – failed
* 29 May 2010 – passed

5.  The HRC Integrated Web-based System site contains the following email communications between the logistics career manager for CPT's and below and the applicant:

	a.  20 April 2010 – applicant was informed that in order to process his request for promotion and cut promotion orders, all officers are required to meet the criteria, to include an APFT within 12 months of the current date;

	b.  23 April 2010 – applicant was informed that he must have a current APFT within the last year and his [APFT] showed flagged – failed April 2010, this would hold up his promotion;

	c.  25 June 2010 – the applicant stated his promotion should have been 25 March 2010 not 29 May 2010;

	d.  25 June 2010 – HRC stated the board list ONLY indicated he was selected for promotion and he would ONLY be promoted if all the items in the letter sent on 19 April 2010 were current of the date of release, to include no personnel actions pending/flags; and

	e.  12 July 2010 – Office of Promotions (RC) stated it could not approve the amendment to his DOR to CPT based on the flagging action and Army Regulation 133-155, paragraph 4-11(c) (10) and (f).

6.  Orders B-06-003925, HRC, St. Louis, dated 15 June 2010, show he was promoted to CPT with an effective date and DOR of 29 May 2010.

7.  He submitted email communications between the Office of Promotions (RC) and the interim G-1, 377th Transportation Supply Company, dated 12 July 2010, which state HRC was unable to approve an amendment to his DOR in accordance with Army Regulation 135-155, paragraph 4-11(c) and (f), based on his being flagged.

8.  On 28 February 2011 during the processing of this case, an advisory opinion was obtained from the Chief, Officer Promotions, Special Actions Branch, HRC, Fort Knox, KY.  The advisory official indicated:

	a.  The Fiscal Year 2010 CPT Army Promotion List board was approved on 25 March 2010 and was released on 8 April 2010.

	b.  An AHRC Form 56-R was required from the command to validate the officer's position in order to promote.

	c.  During this period while HRC was waiting on the document to arrive for validation, the officer was flagged for APFT failure effective 18 April 2010.

	d.  The promotion order was published on 29 May 2010, the day the flag was lifted.

	e.  Based on the delay of receipt of the AHRC Form 56-R in conjunction with the flagging of the officer, HRC could not recommend approving the request to adjust his DOR.

9.  On 7 March 2011, he was sent a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  He nonconcurred with the advisory opinion.

10.  Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve Component officers.

	a.  Paragraph 4-11c(10) states that an officer's promotion is automatically delayed if he or she failed the most recently administered APFT through his or her own fault (as determined by the first commander who is senior to the officer concerned) or has not taken and passed an APFT within the period required.

	b.  Paragraph 4f states that if within 6 months after the effective date of promotion new information results in a determination by Commander, HRC, Chief, Office of Promotions (RC) that an officer was in a nonpromotable status on the effective date of the promotion, that promotion will be deemed to have been automatically involuntarily delayed.  In such a case, the officer's promotion is voided and the memorandum announcing the promotion will be revoked.  The officer must be immediately notified of this fact.  Also, immediate steps will be taken to resolve the case or seek further delay.  However, if the determination is made more than 6 months after the effective date of the promotion, the officer will be deemed to have been in a promotable status on the effective date of the promotion and treated as though the involuntary delay had not been imposed unless the officer possessed a nonwaivable statutory disqualification for promotion consideration or selection.

	c.  Paragraph 4-18 discusses the DOR and effective date of promotion after an involuntary delay.  An officer who failed to pass the most recent APFT or failed to take and pass the APFT within the period required because of the fault of the officer concerned will be promoted with a DOR and effective date the day the officer passes the APFT.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his CPT DOR should be adjusted from 29 May 2010 to 25 March 2010.

2.  By regulation, an officer who failed to pass the most recent APFT because of his or her own fault and is subsequently selected for promotion will be promoted with a DOR and effective date the day the officer passes the APFT.

3.  Evidence of record shows that he was flagged for APFT failure prior to HRC's receipt of validation of his promotion eligibility and issuance of promotion orders. As a result, he was ineligible for promotion until he passed the APFT on 29 May 2009.  Therefore, he is not entitled to have his DOR and effective date to CPT as 25 March 2010 or to show he is entitled to all back pay and allowances due as a result of this adjustment.

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)                                         AR20100020397



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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