BOARD DATE:	  24 May 2011

		DOCKET NUMBER:  AR20100021913 


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:

   a.  His date of rank (DOR) for captain (CPT) be adjusted from 18 April 2000 to 18 April 1999 with a corresponding adjustment of his DOR for major (MAJ) from 22 May 2006 to 22 May 2005.  
   
   b.  In the alternative, that his DOR for CPT be moved back 3 months due to the convoluted promotion process of the year he was considered for CPT with a corresponding adjustment of his DOR for MAJ to 22 February 2006.

2.  The applicant states he served as a first lieutenant (1LT) in the Judge Advocate General's Corps (JAGC) 3 years and 6 months and this service includes 2 years and 1 month in an Active Guard Reserve (AGR) status.  He states at the time active duty JAGC officers were automatically promoted to CPT after 6 months if their records were not flagged.  Since 1 October 2006 Army Reserve JAGC officers serving on active duty are automatically promoted to CPT after 12 months (and only 24 months if non-active duty).  He states this injustice denies him a timely opportunity for promotion and service in a grade commensurate with his abilities and military experience.

3.  He states the injustice for which he seeks redress has resulted in him being denied the opportunity to compete for promotion to lieutenant colonel (LTC) with individuals who were commissioned after his commissioning date.  


4.  The applicant provides:

* five promotion documents
* orders to active duty
* DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 15 October 2002
* five letters of recommendation
* two letters from the Office of the Assistant Secretary, Manpower and Reserve Affairs
* 12 Officer Evaluation Reports (OERs)
* Army Board for Correction of Military Records (ABCMR) Docket Number AR2010000678
* ABCMR Docket Number AR20090002092

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned a 1LT in the U.S. Army Reserve (USAR) JAGC on 22 October 1996.  He had previously served 25 years, 1 month, and 
29 days of both active and inactive enlisted service.  His letter of appointment, dated 10 October 1996, stated in paragraph 7 that he had been credited with 
1 year time in grade as a lieutenant and his DOR was 22 October 1996.

2.  He was ordered to active duty in an AGR status effective 15 March 1998 for a period of 3 years.

3.  He was promoted to CPT effective 10 March 2001 with a DOR of 10 March 2001.

4.  At some point, his DOR for 1LT was adjusted to 22 October 1995 which made him eligible for promotion consideration under the criteria of the calendar year 1999 CPT Army Promotion List (APL) promotion selection board.  He received consideration by a Special Selection Board and was selected for promotion to CPT.

5.  His effective date and DOR for CPT was adjusted to 18 April 2000.

6.  On 15 October 2002, he was honorably released from active duty.  He had completed 4 years, 7 months, and 1 day of active service.

7.  He was promoted to MAJ with an effective date and DOR of 22 May 2006.


8.  A memorandum, dated 16 September 2010, from the Deputy Staff Judge Advocate, Headquarters, 88th Regional Support Command, Fort McCoy, WI [LTC] supports the applicant's request to adjust his DOR for CPT.  The LTC indicates he was the applicant's rater from March 1998 to August 2001 and from June 2002 to August 2004.  The LTC stated that even though the applicant was an AGR officer, "USAR regulations controlled the promotion criteria of serving for 3 years as a 1LT."  The LTC states active duty JAGC officers commissioned in the USAR only served 6 months on active duty to be eligible for promotion to CPT.  This injustice has subsequently been changed, but it was after the applicant spent more than 3 years as a 1LT.

9.  The applicant submitted four personal references from three officers and one civilian (GS-15) he served with or under from July 2001 to 2009.

10.  An undated, and unsigned, memorandum from the Office of the Assistant Secretary, Manpower and Reserve Affairs, Subject: "Request for Fully Qualified Certification Process to Promote Army Reserve Judge Advocate General's Corps First Lieutenants to Captains" outlines the procedures for promoting JAGC 1LT's to the rank of CPT. 

	a.  Beginning 1 October 2006, the Office of the Judge Advocate General (OTJAG) implemented a policy to review the performance records of JAGC 1LT's up to three times a year.  Minimum eligibility will be 24 months time in grade as a 1LT as of the date of review, to include constructive credit, and not less than 
12 months in an active status.  

	b.  OTJAG will prepare up to three lists for processing by the Army G-1:

* Army Reserve Fully Qualified
* Army Reserve Not fully Qualified
* Army Reserve Show Cause

	c.  OTJAG will certify in a board report that officers on the Fully Qualified list:

* would be eligible for consideration for promotion to the rank of CPT by a promotion selection board
* are fully qualified for promotion to the rank of CPT
* are needed in the rank of CPT to accomplish mission objectives
	
	d.  The board report will be sent to the Director of Military Personnel Management for processing.  Promotions will be effective upon approval of the Secretary of Defense.
11.  An advisory opinion from U.S. Army Human Resources Command (HRC), Fort Knox, KY, dated 27 December 2010, recommended disapproval of the applicant's request.  The applicant's adjusted DOR of 22 October 1995 for 1LT made him eligible for promotion consideration under the criteria of the 18 April 1999 CPT APL promotion selection board.  He was selected for promotion via a Special Selection Board under the 1999 criteria.  AGR officers are considered on the Reserve Active Status List and the criteria for promotion under Army Regulation 135-155 for Reserve Component Officers.  The fully qualified certification process to review USAR JAGC 1LT's did not begin until 1 October 2006, it was not in effect at the time he was promoted to CPT.

12.  On 4 March 2011, the applicant submitted a rebuttal to HRC's advisory opinion.  He stated the promotion policy for USAR JAGC officers was arbitrary and capricious in that it treated similarly situated USAR JAGC officers serving on active duty with the Reserve Component differently than those who were serving with the Active Component.  He states a review of the record demonstrates that he suffered an injustice of an arbitrary and capricious nature.  He states in light of the inequities in his case, the only fitting relief is the retroactive adjustment of his DOR, in particular, his DOR as a MAJ.

13.  A telephone conversation between the staff of the ABCMR and the staff of HRC revealed the 1999 CPT APL Promotion Selection Board convened from 
9-10 December 1999 and the results were approved on 18 April 2000.  The 1998 CPT APL Promotion Selection Board reviewed DOR's prior to 16 May 1995.

DISCUSSION AND CONCLUSIONS:

1.  Apparently his 1LT DOR was erroneously recorded as 22 October 1996.  However, once the error in his DOR was discovered it was determined he was eligible for consideration for promotion to CPT by the 1999 CPT APL Promotion Selection Board.  He was selected by a special selection board for promotion to CPT.  The 1999 CPT APL Promotion Selection Board convened 9-10 December 1999.  The board was approved on 18 April 2000.  Therefore, 18 April 2000 was the earliest date he could have been promoted.

2.  The change in policy for promotions of USAR JAGC from 1LT to CPT was not effective until 1 October 2006, 6 years after his promotion to CPT.  Therefore, this change of policy does not apply to his case.  

3.  The change in policy did not affect any other 1LT's who were promoted prior to the change becoming effective.  There is no evidence the applicant suffered an injustice of an arbitrary nature.
4.  In view of the above, there is no basis to make any changes to his DOR to CPT with a corresponding change of his DOR to MAJ.

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)                                         AR20100021913



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ABCMR Record of Proceedings (cont)                                         AR20100021913



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