BOARD DATE:	    14 April 2011

		DOCKET NUMBER:  AR20100029934 


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 his date of rank (DOR) to lieutenant colonel (LTC) from 3 September 2009 to 18 December 2008.

2.  The applicant states, in effect, that Active Guard Reserve (AGR) officer promotion rules require a promotable major (MAJ) to be in a valid O-5 position before he/she can be promoted to LTC.  He states that no valid O-5 positions were available within his immediate command due to the command's inactivation and a moratorium on permanent change of station (PCS) moves for key and essential personnel.  These factors delayed his promotion due to no fault of his own.  

3.  The applicant provides the following documents:

* Orders B-11-907267, U.S. Army Human Resources Command (HRC), dated 5 November 2009
* Memorandum, Office of the Assistant Secretary of the Army (Manpower and Reserve Affairs), dated 15 October 2010
* third-party memorandum of support, Colonel (COL) Sxxxx Sxxxxxx, dated 9 November 2010 
* third-party memorandum of support, Brigadier General (BG) Bxx Jxxxxxx, dated 13 December 2010
* e-mail (4 pages)



CONSIDERATION OF EVIDENCE:

1.  The applicant is a current member of the U.S. Army Reserve (USAR), on active duty in the AGR Program.  His commissioned officer area of concentration is 31A (Military Police Officer).

2.  The applicant's records show he enlisted in the USAR on 21 March 1987.  He attended and successfully completed the Reserve Officers' Training Corps (ROTC) Program at Lamar University, Beaumont, TX.  On 21 December 1991, he was appointed as a commissioned officer in the USAR, in the rank/grade of second lieutenant/O-1.  

3.  On 10 May 1992, he entered active duty and served in a variety of command and staff positions.  On 1 February 2003, he was promoted to the rank of MAJ/O-4.  On 29 November 2003, he was honorably released from active duty, due to completion of his required active service.  

4.  On 30 November 2003, he entered the AGR Program.  He was assigned to the 320th Military Police Battalion, Ashley, PA (a USAR Troop Program Unit).    

5.  He was selected for promotion to LTC in the AGR Program by the Fiscal Year (FY) 2008 LTC, Army Reserve AGR Competitive Category Promotion Selection Board [hereinafter referred to as the FY08 LTC AGR Promotion Selection Board] that convened on 8 September 2008.  He was placed on the Army Promotion List (APL) that was approved on 16 December 2008, and he was subsequently released on 15 January 2009.
 
6.  At the time of the official release of the selection board results, he was assigned to the 90th Regional Readiness Command (RRC) in North Little Rock, AR, a command identified for inactivation by the 2005 Defense Base Closure and Realignment Commission (BRAC).  

7.  Orders B-11-907267, HRC, dated 5 November 2009, promoted him to LTC effective 3 September 2009.

8.  Orders R-08-986202, HRC, dated 28 August 2009, directed his PCS movement to HRC, St. Louis, MO effective 14 September 2009.  

9.  There is no documentation in his available record nor has he provided any documentation that substantiates the existence of any vacant AGR O-5 positions within his proximity of assignment at the 90th RRC to which he may have been locally reassigned at the time the FY08 LTC AGR Promotion Selection Board results were approved.
10.  The applicant provides:

   a.  A third-party memorandum of support from COL Sxxxx Sxxxxxx, dated 
9 November 2010.  COL Sxxxxxx was the Human Resource Officer and Deputy Chief of Staff, G-1 of the 90th RRC when the FY08 LTC, APL, USAR AGR Promotion Selection list was released.  He states his support for an adjustment of the applicant's DOR.  He further states:

       (1)  At the time the list was released, the 90th RRC had already been identified for inactivation under BRAC.

       (2)  As a result, the Commanding General, 63rd Regional Support Command [who assumed command and control of 90th RRC units and functions] coordinated with HRC to stop the reassignment of mission essential personnel from the 90th RRC.

       (3)  As a secondary result all vacant positions within the 90th RRC were coded as "excess" which prohibited the applicant's local reassignment to an O-5 billet. 

       (4)  Despite this, the applicant performance was superb.

   b.  A third-party memorandum of support from BG Bxx Jxxxxxx, dated 
13 December 2010, states his support for the applicant's request for an adjustment of his DOR.  He further reiterates the supportive comments made by COL Sxxxxxx.  

11.  In the processing of this case, on 30 March 2011, an advisory opinion was obtained from the Chief, Officer Promotions and Special Actions at the HRC.  The advisory official recommended denial of the applicant's request for an adjustment of his DOR to LTC based on the fact that the applicant was not in an O-5 billet until his PCS move in September 2009.  The advisory official cited Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers), paragraph 4-21d.

12.  The applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments for a rebuttal.  In his rebuttal, dated 31 March 2011, he stated he felt the advisory official did not fully consider his unique circumstances prior to issuing his opinion.  He acknowledges that HRC's advisory opinion is based on regulatory guidance; however, his inability to PCS due to the Command's moratorium on PCS moves was not his fault and he would like this Board to consider this during the review of his case.

13.  Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve Component officers.  

   a.  Paragraph 4-15c states, in pertinent part, that for commissioned officers serving on active duty in an AGR status, when assignment/attachment of an officer requires a higher grade than that currently held by the officer, the officer may be promoted to or extended Federal recognition in a higher grade provided the duty assignment/attachment requires a higher grade than currently held.  When not in a higher graded position, an AGR officer will receive an automatic delay in promotion without requesting such action.  The officer will remain on the promotion list, and on active duty in the AGR program, until assigned or attached to an AGR position calling for the higher grade.  

   b.  Paragraph 4-21d states, in pertinent part, that AGR officers selected by a mandatory board will be promoted provided they are assigned or attached to a position in the higher grade.  An AGR officer who is selected for promotion by a mandatory promotion board, but who is not assigned/attached to a position in the higher grade will be promoted on the date of assignment/attachment to a higher graded position or the day after release from AGR status.  The date of rank will be the date the officer attained maximum time in grade or the date on which assigned/attached to a position in the higher grade, whichever is earlier.

DISCUSSIONS AND CONCLUSIONS:

1.  The applicant's request for an adjustment of his DOR to 18 December 2008 was carefully considered; however, there is insufficient evidence to support his request.

2.  Army Regulation 135-155 requires AGR officers selected for promotion to be in a position in the higher grade before being promoted.  The evidence of record shows he was promoted concurrent with his reassignment to a vacant O-5 position; therefore, this requirement was adhered to in this case.  

3.  The evidence of record does not support the existence of vacant AGR O-5 positions within his proximity of assignment at the 90th RRC that he could have been reassigned to at the time the FY08 LTC AGR Promotion Selection Board results were approved.  Therefore, it cannot be assumed he would have been locally reassigned into a vacant AGR O-5 position on 16 December 2008, the date the promotion list was approved.  

4.  In view of the foregoing, there is no basis for granting the requested relief.


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)                                         AR20090019274



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100029934



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1