IN THE CASE OF:	  

		BOARD DATE:	  16 August 2011

		DOCKET NUMBER:  AR20100028532 


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 consideration by a Department of the Army (DA) Special Selection Board (SSB) for promotion to captain (CPT).

2.  The applicant states he was selected for promotion to CPT in 1994.  During the same period, he transferred to the Individual Ready Reserve (IRR) without being promoted and he was subsequently omitted from later boards.  

3.  The applicant provides:

* three emails from the U.S. Army Human Resources Command (HRC)
* three DA Forms 67-9 (Officer Evaluation Report)
* his Reserve Commissioned Officer Promotion memorandum
* a three-page self-authored rebuttal to the HRC advisory opinion

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a second lieutenant in the Infantry with the Army National Guard (ARNG) on 15 August 1987.  On 14 August 1990, he was promoted to first lieutenant (1LT).

2.  While serving in the ARNG, the applicant was selected for promotion by the Calendar Year (CY) 1994 CPT DA Reserve Components Selection Board (RCSB).

3.  On 1 March 1994, the applicant was honorably separated from the Army National Guard and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  On 27 April 1999, he was honorably discharged from the USAR.

4.  On 5 February 2010, the applicant was appointed as a 1LT, USAR, in the Military Police Corps.  He was ordered to active duty as a member of his reserve unit on 31 March 2011 for a period of 400 days in support of Operation Enduring Freedom.

5.  On 28 April 2011, an advisory opinion was obtained from the Chief, Special Actions Branch, DA Promotions, HRC, Fort Knox, KY.  The advisory official recommended disapproval of the applicant's request and stated that his transfer to the IRR on 1 March 1994 was prior to the approval of the board; therefore, he was not promoted by the ARNG.  The applicant was subsequently identified to the 1995 board, but he was deleted from consideration due to his previous selection.  The deletion was in accordance with Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 2-5, which states that while on a promotion list resulting from a prior mandatory promotion board, an officer may not be considered for promotion by a subsequent mandatory promotion board.  Upon transfer to the IRR the promotion authority transferred to HRC, St. Louis.  The DA Promotions Branch was not aware of the applicant’s transfer and the applicant never inquired about his status; thereby, he was not promoted.  The applicant remained on the Reserve Active Status List (RASL) in a promotable status until he was discharged on 27 April 1999.

6.  On 3 May 2011, the advisory opinion was furnished to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  The applicant responded on 6 June 2011.  In his response he stated he was not promoted to CPT due to poor records management and a lack of personnel accountability by the HRC Promotions Branch.  

7.  Army Regulation 135-155 provides policy and procedures for the promotion of commissioned officers of the Army Reserve.  It states that for promotion from 1LT to CPT, the minimum number of years in the lower grade is 2 years and the maximum number of years in the lower grade is 5 years.  

8.  Army Regulation 135-155 specifies that promotion reconsideration by a special selection board may only be based on erroneous non-consideration or material error which existed in the records at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual’s non-selection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion. 

DISCUSSION AND CONCLUSIONS:

1.  Reconsideration by an SSB is authorized when an eligible officer is erroneously not considered for promotion by the regularly scheduled RCSB or when a material error exists in the record that is reviewed by the RCSB.  The applicant’s contention that he should be reconsidered for promotion by an SSB has been carefully considered and found to have merit.

2.  The applicant was appropriately considered for promotion by the 1994 RCSB and there is no evidence that his record contained a material error.  The applicant was selected by the board for promotion but ultimately not promoted because he transferred to the IRR on 1 March 1994, prior to the approval of his selection by the board.

3.  Upon transfer to the IRR, the applicant remained on the RASL in an erroneous promotable status until discharged from the service on 27 April 1999.  He should have been promoted, at the latest, when he attained the maximum time in grade on 14 August 1995.

4.  Notwithstanding the advisory opinion provided by the Chief, Special Actions Branch, DA Promotions, the applicant was disadvantaged by the HRC Promotions Branch remaining unaware of his transfer to the IRR and subsequently excluding him from consideration for promotion while assigned to the IRR.  Therefore, in the interest of justice and equity, it would be appropriate to promote the applicant to CPT effective 14 August 1995.

BOARD VOTE:

_____X___  ___X____  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

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

	a.  promoting him to CPT effective 14 August 1995; and 

	b.  paying him all due back pay and allowances to which he is entitled as a result of this correction. 



      ___________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)                                         AR20100028532



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ABCMR Record of Proceedings (cont)                                         AR20100028532



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