IN THE CASE OF:	  

		BOARD DATE:	  21 April 2011

		DOCKET NUMBER:  AR20100024926 


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 her date of rank (DOR) to captain (CPT) from 24 February 2009 to 1 October 2003.

2.  The applicant states based on information she received from the Department of the Army Suitability Evaluation Board (DASEB) she was selected for promotion by the fiscal year (FY) 2003 CPT Standing Army Promotion List (APL).  She was never removed from the list nor did she decline her promotion to CPT.  She transferred to the Individual Ready Reserve (IRR) on 25 May 2003 to fulfill the remaining 8 year service obligation which ended on 14 August 2004.  She further states that according to Army Regulation 600-8-29 (Officer Promotions), paragraph 1-12(c), a commissioned officer who was on a promotion list in one competitive category and, before promotion, is transferred to a different competitive category will be promoted from the competitive category that made the original recommendation.  They will not be integrated into the promotion list of the new competitive category as a result of the transfer.  Therefore, she should have been promoted to CPT on 1 October 2003 while she was in an IRR status.

3.  The applicant provides a self-authored statement, memorandum, DASEB Record of Proceedings and promotion orders.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  Having had prior enlisted service, on 25 May 2000, the applicant executed an oath of office and she was appointed a U.S. Army Reserve (USAR) Signal Corps (SC) second lieutenant.  She entered active duty on the same date.

3.  The applicant was assigned as a signal officer with the 507th Corps Support Group, Fort Bragg, NC.  She was promoted to the rank of first lieutenant (1LT) on 27 November 2001.

4.  Her records show she was selected for CPT by the FY 2003 CPT Standing APL.  

5.  On 24 March 2003, she accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for multiple incidents which included failure to go at the time prescribed to her appointed place of duty, dereliction of duty, and disobeying lawful orders.

6.  On 24 May 2003, she was honorably released from active duty and transferred to the USAR Control Group (Reinforcement) to complete her remaining Reserve obligation in the rank of 1LT.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued for this period of service shows she completed a total of 6 years, 8 months, and 6 days of active service.

7.  On 22 September 2005, she was transferred from the IRR to a Troop Program Unit (TPU) - Headquarters and Headquarters Company (HHC), 77th Regional Readiness Command (RRC), Fort Totten, NY.

8.  On 10 January 2006, she received a Change of Rater OER that covered the rating period from 21 September 2005 through 10 January 2006.  This OER shows she performed the duties of the Executive Officer, HHC, 77th RRC.  

9.  On 11 January 2006, she was reassigned to a TPU with the 812th Military Police Company, Orangeburg, NY.

10.  On 2 February 2006, by memorandum, the U.S. Army Human Resources Command (HRC) notified the applicant that she was considered for promotion to CPT by the mandatory Reserve Components Selection Board (RCSB) that convened on 7 November 2005 but she was not selected.

11.  On 22 February 2007, by memorandum, HRC notified her that she was considered for promotion to CPT by the mandatory RCSB that convened on 7 November 2006 but she was not selected.  Additionally, as a result of this second non-selection, by law and regulation, she was required to be discharged or transferred to the Retired Reserve, if eligible.

12.  On 20 April 2007, she was reassigned to a TPU with the 479th Engineer Battalion, Watertown, NY.

13.  On 8 July 2007, she was ordered to active duty in support of Operation Iraqi Freedom.

14.  On 21 March 2008, she was notified that her records were reconsidered for promotion to CPT by a special selection board (SSB) under the 2006 criteria but she was not selected for promotion by that board.

15.  On 31 October 2008, the DASEB considered her petition to transfer the NJP action to the restricted portion of her Official Military Personnel File (OMPF).  The DASEB ordered the transfer but decided that this action was not to be considered retroactive or constitute grounds for promotion consideration if previously non-selected.

16.  On 27 March 2009, HRC published Orders B-03-902275 promoting her to CPT with an effective date and DOR of 24 February 2009.

17.  On 23 July 2009, the applicant was issued a DD Form 214 that shows she was honorably released from active duty to the control of the USAR in the rank of CPT, effective 24 February 2009.

18.  On 28 March 2011, during the processing of this case an advisory opinion was received from an official at HRC, Officer Promotions.  This official recommended disapproval of the applicant's request for an adjustment of her DOR to CPT to 1 October 2003.  The official stated that:

	a.  when the applicant transferred from the active Army to the IRR her promotion authority immediately changed from Army Regulation 600-8-29 to Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers).  
	b.  If her administrative center had been notified earlier of her prior selection for promotion it may have led to an earlier placement on the Reserve Active Status List (RASL) and possibly an earlier promotion date.  The applicant's minimum time in grade (TIG) requirement for promotion to CPT based on her DOR to 1LT was 27 November 2003 and her maximum TIG for promotion was 26 November 2006.  

	c.  The applicant's period of service from 27 November 2003 through 21 September 2005 was that of a member of the IRR; members in an IRR status must wait until they reach their maximum TIG requirement to be eligible for promotion.

	d.  She transferred to a TPU effective 22 September 2005.  As a member of a TPU, she could have been promoted ahead of her maximum TIG provided she was assigned to a CPT or a higher grade position between 22 September 2005 and 26 November 2006.  If she cannot provide documentation of an assignment to a CPT or higher grade position for this timeframe, then the earliest amended DOR that can be awarded is 26 November 2006.

19.  In response to the advisory opinion, the applicant provided the following:

	a.  Orders C-09-521084, issued by HRC on 21 September 2005, releasing her from the USAR Control Group and reassigning her to the 77th RRC, Fort Totten, NY, effective 21 September 2005.

	b.  DA Form 2A (Personnel Qualification Record), dated 1 April 2011, showing the applicant was assigned to HHC, 77th RRC on 22 September 2005, in paragraph/line number 019/02, position title executive officer, and an authorized grade of O-3.

	c.  DA Form 67-9 (OER) for the period 21 September 2005 through 10 January 2006 showing her unit was HHC, 77th RRC, her principal duty title was executive officer, and her duty position was 01A.

	d.  77th RRC's table of distribution and allowances (TDA) history printouts, dated 16 October 2005 and 16 October 2006, showing HHC's executive officer position was an O-3 position with a position code of 01A.

20.  Army Regulation 135-155 states, in pertinent part, an officer on the ADL who has been selected for promotion but who has not been promoted by the time the officer transfers to the RASL in the same competitive category will be placed on an appropriate Reserve of the Army promotion list.  The effective date of promotion and DOR will be the same as if the officer had been selected to the same grade by a promotion board for RASL officers.  The precedence or relative rank among commissioned officers on the RASL is based on the current grade in which serving on the RASL and current DOR.  The minimum TIG for promotion from 1LT to CPT is 2 years and the maximum TIG in grade is 5 years.  

21.  Army Regulation 600-8-29 states, in pertinent part, the names of those officers recommended and approved for promotion are placed, in order of their seniority on the ADL, on promotion lists published by Army HRC.  Separate lists will be published and maintained for each board.  A commissioned officer who was on a promotion list in one competitive category [i.e. Signal Corps, Adjutant General Corps, Field Artillery, etc.] and, before promotion, is transferred to a different competitive category [i.e. Medical Corps, Army Nurse Corps, Veterinary Corps, etc.] will be promoted from the competitive category that made the original recommendation.  They will not be integrated into the promotion list of the new competitive category as a result of the transfer. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that upon her release from active duty in 2003, the applicant had been selected for promotion to CPT; however, prior to being promoted she was released from active duty and transferred to the USAR.  

2.  Once she was in the USAR, she fell under the RCSB promotion system which would have required her to complete the maximum TIG (5 years from the date she was promoted to 1LT) in order to be promoted, if otherwise qualified.  However, once she was transferred to the TPU she was eligible for promotion upon filling a CPT/O-3 position.  Therefore, the earliest she would have been eligible for promotion was 22 September 2005, a date that is also consistent with that in the advisory opinion.  Her DA Form 2A is accepted as sufficient evidence to show she was in a CPT position.

3.  Through no fault of her own she was not placed on an appropriate Reserve promotion list in a timely manner upon her transfer.  She was subsequently considered and not selected by the 2005 and 2006 RCSB.  She was considered and not selected by an SSB under the 2006 year criteria.  She was subsequently selected by the 2009 RCSB and promoted accordingly.  

4.  As a matter of equity her promotion date should be adjusted to the date she was assigned to a higher-graded position, which was 22 September 2005.  The evidence shows she met all qualifications for promotion to CPT on this date.  



5.  Therefore, she is entitled to an adjusted effective date and DOR for CPT to
22 September 2005, with entitlement to all back pay and allowances.  Based on the adjusted DOR she will be eligible for consideration for promotion to major by the 2012 RCSB and HRC should take the appropriate action in this matter.

6.  In view of the foregoing, she is also entitled to deletion of the three non-selections by the 2005 and 2006 RCSB and the 2008 SSB.   

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ____X___  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* adjusting her DOR and effective date of promotion to CPT from 24 February 2009 to 22 September 2005
* auditing her pay records and paying her back pay and allowances as a result of this correction
* removing from her OMPF the three memoranda of non-selection for promotion, dated 2005, 2006, and 2008

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correction of her effective date and DOR for CPT to a date earlier than 22 September 2005.



      __________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)                                         AR20100024926



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ABCMR Record of Proceedings (cont)                                         AR20100024926



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