IN THE CASE OF:	  

		BOARD DATE:	  27 July 2011

		DOCKET NUMBER:  AR20100026627 


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 change of his date of rank (DOR) to major from 1 July 2000 to 12 May 2006; to reduce his total years of commissioned service by
6 years; and to adjust his mandatory removal date (MRD) from September 2010 to at least late 2014.

2.  The applicant states he separated from the Army as a captain in February 2001.  He was later promoted to major without his knowledge while he was a member of the Individual Ready Reserve (IRR).  He later agreed to serve on active duty and, when inprocessing, he discovered he had been promoted to major.  In July 2007, he discovered by his Leave and Earnings Statement (LES) that he had been promoted to lieutenant colonel (LTC) without his knowledge.  That’s when he discovered his DOR to major was retroactive to July 2000.  A few months later his promotion to LTC was revoked.  He was considered for promotion to LTC the following year and he was not selected because he had no Officer Evaluation Reports (OERs) as a major and he had not completed Intermediate Level Education (ILE).  He attempted to attend ILE but he could not because of his mobilized status and the nature of his duties.  In addition, he could not be competitive without having more OERs as a major.  He concludes that only by showing he had no military service between the time he was separated until the date of his mobilization, and showing he was promoted to major on the date of his mobilization, can he compete with his peers for promotion.

3.  The applicant does not provide any additional documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that on 10 August 2000 he was notified that he had been considered for promotion to major for the second time and he had not been selected.  As a result, he had to be separated on 1 February 2001.

2.  On 27 October 2000, orders were published discharging the applicant from the Army National Guard (ARNG) and assigning him to the IRR effective 1 February 2001.

3.  On 12 May 2006, Orders B-05-603697, issued by the U.S. Army Human Resources Command, St. Louis, MO (HRC-STL) promoted the applicant to major with an effective date and DOR of 19 July 2000.  The promotion orders explained his promotion to major was based on the approved findings of a Special Selection Board (SSB) convened as a result of a class action lawsuit and his DOR to major was retroactive to June 2001.

4.  On 10 May 2007, he volunteered for a tour of active duty and he entered active duty as a major.  He was assigned to a unit in Oregon.  He was later assigned to a unit in Washington State.

5.  On 24 August 2007, Orders B-08-706187, issued by HRC-STL promoted him to LTC with an effective date and DOR of 18 July 2007.  On 9 October 2007, Order B-08-706187R revoked these orders.

6.  On 30 September 2010, he was honorably released from active duty by reason of completion of required active service in the rank of major.

7.  In the processing of this case, on 7 June 2011 an advisory opinion was obtained from HRC, Fort Knox, KY.  The advisory official stated that the applicant was transferred to the IRR after his second non-selection for promotion to major on 1 February 2001.  He was reconsidered and selected for promotion by an SSB in 2005 using year 2000 promotion criteria.  The SSB was convened due to a class action lawsuit, Wasson versus Secretary of the Army, that was based on improper civilian education requirements stated in the original Memorandum of Instructions (MOI) furnished the original promotion board.  When selected, he was given a DOR of 19 July 2000, the approval date of the 2000 major board.  The DOR was established in accordance with the applicable regulations.  He had the option to decline the promotion but his address on file was not valid.  As such, by the time they made contact with the applicant in January 2007, the promotion order had been published.  The applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.
8.  A list of telephonic inquiries maintained in the interactive Personnel Electronic Records Management System (iPERMS) does not contain any entries which show the applicant requested entry in ILE or any other schooling.

DISCUSSION AND CONCLUSIONS:

1.  It is presumed that when the applicant was promoted to major he was notified of his selection at the last address he furnished the Army.  The fact that he did not provide the Army with a current address is unfortunate as it resulted in a delay in his notification of promotion.  

2.  However, HRC stated the applicant was notified in January 2007, which was 9 months after his selection for promotion.  It would be presumed that the applicant would have been furnished a copy of his promotion orders at the time which explained his promotion to major was based on the approved findings of a SSB convened as a result of a class action lawsuit and his DOR to major was retroactive to June 2001.

3.  While the applicant states that he could not attend ILE, he has not submitted any evidence to substantiate that contention.  The iPERMS entries are void of any record of him requesting ILE.  He was on a voluntary tour of active duty and he was not deployed outside the United States.  

4.  While it is unfortunate that the applicant had less time than his peers to complete ILE and he could not be given as many OERs as his contemporaries, this is standard fare for officers promoted by SSBs.  Others selected for promotion under the lawsuit which resulted in the applicant's promotion were only notified, at best, 9 months earlier than the applicant.

5.  Besides, the applicant had been selected for LTC without a significant number of OERs.  Those orders were revoked only because he hadn't completed ILE.  As for his statement that he was unaware he had been promoted, it is inconceivable that the Army would not have notified an officer serving on active duty that he/she had been promoted.

6.  There are no provisions in Army regulations to delete the time between his transfer to the IRR and his entry on active duty.  When he was selected for promotion with a 2001 DOR, there was no longer any reason to separate him from an active status.

7.  In view of the foregoing, there is no basis for granting the applicant’s request.


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)                                         AR20100026627



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ABCMR Record of Proceedings (cont)                                         AR20100026627



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