IN THE CASE OF:	  

		BOARD DATE:	  14 July 2011

		DOCKET NUMBER:  AR20100025704 


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 his date of rank (DOR) to captain (CPT) be adjusted from 20 January 2006 to 1 March 1994.  

2.  He states his military record is in error due to an administrative error that was made by the Army National Guard (ARNG) Personnel Command, St. Louis, MO.  He didn’t receive his promotion as shown in a promotion memorandum, dated 
1 March 1994.  

3.  He provides:

* a memorandum requesting an amendment of his DOR
* a promotion memorandum
* orders withdrawing his Federal recognition, separating him from the ARNG, reassigning him to a Troop Program Unit (TPU), and orders promoting him to CPT
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  At the time the applicant submitted his application, he was serving as a CPT in the U.S. Army Reserve (USAR).

2.  The applicant completed prior enlisted service and he was appointed as a Reserve commissioned officer on 1 August 1987 in the rank of second lieutenant.  He accepted a commission in the ARNG on an unknown date.  He was promoted to first lieutenant on 31 July 1990.  

3.  He was considered and selected for promotion to CPT under the provisions of Army Regulation 135-178 (Enlisted Administrative Separations) by the 1994 CPT Reserve Components Selection Board that adjourned on 17 December 1993.  

4.  The promotion memorandum, dated 1 March 1994 indicates he declined the promotion on 6 August 1994.  

5.  A memorandum, dated 6 August 1994, also shows he elected to decline the promotion to CPT.  He indicated that he was declining the promotion because there was no table of organization or equipment vacancy in the South Carolina ARNG to which he could be assigned in the higher grade and that he desired to retain his membership in the ARNG.  He also indicated that he understood if his election to decline was approved, his name would be retained on the promotion list for a period of not more than 2 years from 17 December 1993.  

6.  On 31 January 1998, he was separated from the ARNG under the provisions of National Guard Regulation 635-100 (Termination of Appointment and Withdrawal of Federal Recognition) by reason of resignation (medical reasons).  

7.  Special Orders Number 30 AR, dated 18 February 1998, show his Federal recognition was withdrawn, effective 31 January 1998, and he was transferred to the USAR.  

8.  Orders published on 29 August 2005 show he was released from the USAR Control Group (Reinforcement) and reassigned to a TPU at Fort Gordon, GA, effective 26 August 2005.  

9.  Orders published on 3 February 2006 show he was promoted to CPT with an effective date and DOR of 20 January 2006.  

10.  In the processing of this case, an advisory opinion was obtained from the Chief, Special, Department of the Army (DA) Promotions, U.S. Army Human Resources Command, Fort Knox, KY.  It was recommended that the applicant’s request for an earlier DOR be disapproved unless granted and selected for promotion by a Special Selection Board (SSB) under a criteria prior to 2005.  This office opined that the applicant was:

   a.  selected for promotion by the 1994 Reserve Components Selection Board that adjourned on 17 December 1993 and was approved on 11 May 1994.

	b.  while assigned to the ARNG, on 6 August 1994, he declined the promotion with an expiration date of 16 December 1996, 2 years from the date of selection.

	c.  removed from the promotion list upon expiration of the declination in accordance with Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers paragraph 4-25, dated 1 September 1994 [regulation cited].

	d.  transferred to the IRR on 31 January 1998, reassigned to a TPU on 26 August 2005, considered and selected for promotion by the 2005 CPT Selection Board, and he was promoted with a DOR of 20 January 2006, the approval date of the board.

	e.  eligible for promotion consideration by previous boards in 1997 through 2004 due to removal from the 1994 board and expiration of his declination.
He was not considered by these boards; therefore, he was eligible for DA SSB consideration as an omission under the 1997 through 2004 criteria.  If considered and selected for promotion by an SSB under a criteria earlier than 2005, he will be eligible for an adjusted DOR to CPT and possibly SSB consideration for promotion to major (MAJ).  

11.  The advisory opinion also stated the applicant completed the CPT Career Course on 24 July 2009, which is the required military education for promotion to MAJ.  Therefore, the earliest promotion criteria to MAJ he would be eligible for is the 2010 criteria.  

12.  A copy of the advisory opinion was forwarded to the applicant to allow him the opportunity to submit comments or a rebuttal.  However, he did not respond within the allotted timeframe.  

13.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  It specifies that promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error which existed in the records at the time of consideration.  Paragraph 4-25 states that the names of ARNG and USAR officers requesting delay of promotion to the next higher grade will be retained on the promotion list for the maximum period authorized, unless promoted to the grade for which selected or removed under some other provision of law or regulation. 



DISCUSSION AND CONCLUSIONS:

1.  The applicant was appointed as a Reserve commissioned officer on 1 August 1987 in the rank of second lieutenant and accepted a commission in the ARNG on an unknown date.

2.  The 1 March 1994 memorandum shows he was considered and selected for promotion to CPT by the 1994 CPT Reserve Components Selection Board that adjourned on 17 December 1993.  

3.  On 6 August 1994, he elected to decline the promotion.  He acknowledged that he understood his name would be retained on the promotion list for a period of not more than 2 years.  His name was removed from the promotion list after     2 years.  Therefore, he is not eligible for his DOR to be adjusted to 1 March 1994.  

4.  He was considered and selected for promotion to CPT by the 2005 CPT Reserve Components Selection Board.  Promotion orders published on 3 February 2006 promoted him to the rank of CPT with an effective date and DOR of 20 January 2006.  

5.  The advisory opinion stated the applicant was eligible for promotion consideration by previous boards that convened between 1997 and 2004; however, he was not considered by the boards.  

6.  If he is considered and selected for promotion by an SSB under a criteria earlier than 2005, he will be eligible for an adjusted DOR to CPT and possibly SSB consideration for promotion to MAJ.  

7.  Therefore, it would be equitable to submit the applicant’s records to a duly constituted SSB for reconsideration for promotion to CPT under the 1997 through 2004 criteria.  

8.  If he is selected for promotion to CPT, his records should be further corrected by promoting him to CPT, assigning him the appropriate DOR, paying him the appropriate back pay and allowances, and submitting his records to an SSB for consideration for promotion to MAJ (and showing he was granted an education waiver) under the 2004 or earlier, as appropriate, year criteria.



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 submitting his records to a duly-constituted SSB for reconsideration for promotion to CPT under the 1997 through 2004 criteria.  Additionally, if he is:

   a.  selected for promotion, his records should be further corrected by promoting him to CPT, assigning the appropriate DOR, and paying him all associated back pay and allowances; 
   
   b.  selected for promotion to CPT under an SSB under a criteria earlier than 2005, further submitting his records to a duly-constituted SSN for consideration for promotion to MAJ, with an education waiver for each year, as necessary under the appropriate year criteria; and 

   c.  not selected for promotion he should be notified accordingly.  

2.  The Board further determined that the evidence presented was 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 adjusting his DOR to captain from 20 January 2006 to 1 March 1994.  



      _______ _  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)                                         AR20100025704



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ABCMR Record of Proceedings (cont)                                         AR20100025704



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