BOARD DATE:	  29 November 2011

		DOCKET NUMBER:  AR20110000636 


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, in effect, her effective date and date of rank (DOR) for her promotion to major (MAJ) be corrected from 30 March 2011 to 30 March 2010.  The applicant further request that the Army Board for Correction of Military Records (ABCMR) review the Office of the Chief of Staff, Army Reserve (OCAR) policy memorandum, dated 4 December 2009, Subject:  Promotion of Volunteers on Active Duty under the Provisions of Title 10, US Code, Section 12301(d).

2.  The applicant states she was selected for promotion to MAJ by the March 2009 selection board a few months after she deployed to Afghanistan on a By-Name-Request (BNR).  Because she was transferred to the Individual Ready Reserve (IRR) in order to be mobilized for active duty, IRR [promotion] rules requiring her to serve the maximum time in grade (TIG) were applied, delaying her promotion by a year.  However, in December 2009, during the time of her mobilization, this policy was revoked.  This policy caused significant hardship, costing her a year of rank and about $15,000 in loss pay and allowances.  She does not believe the Army intended to penalize Soldiers who mobilized to a combat zone, especially ones who did so in response to a direct request by a commanding general officer who was trying to build an effective team for the mission.  

3.  Because she was selected for promotion a year before her maximum TIG, her only alternative would be transfer from the IRR to a Troop Program Unit (TPU) or Individual Mobilization Augmentee (IMA) position prior her maximum TIG date.  However, her tour is for 18-24 months so moving to an IMA or TPU position while still deployed seems counterproductive.  However, she did attempt to transfer and was told that she was not an acceptable candidate because she could not attend drills for another year. 

4.  The applicant provides:

* Office of the Assistant Secretary, Manpower and Reserve Affairs (ASA(M&RA)) memorandum, Subject:  Promotion of Volunteers on Active Duty Under the Provision of Title 10 U.S. Code, Section 12301(d), dated 14 January 2005
* OCAR memorandum, Subject:  Promotion of Volunteers on Active Duty under the Provisions of Title 10, U.S. Code, Section 12301(d), dated 
4 December 2009
* Fiscal Year (FY) 2010 Major/ Reserve Component/Army Promotion List, Selection Board Results, released 29 June 2010
* U.S. Forces-Afghanistan By Name Request memorandum, dated 
20 October 2009
* Miscellaneous emails relating to her transfer to the IRR and BNR, for the period

CONSIDERATION OF EVIDENCE:

1.  The ABCMR will not consider the portion of the applicant's request to review OCAR policy [for fairness] as this is an action outside the purview of this Board.  The ABCMR will correct an error or injustice or grant relief as a matter of equity using the appropriate policies, regulations, and laws in effect at the time.  The applicant is encouraged to contact the policy proponent in reference to a review of the policy.

2.  The applicant is currently a MAJ in the U.S. Army Reserve (USAR), deployed to Afghanistan in an IRR status. 

3.  An Integrated Web Service (IWS) entry, dated 25 September 2009, shows the applicant was transferred to the IRR due to the "Soldier being assigned to a deleted Drilling Individual Mobilization Augmentee (DIMA) position for over one year.”  She was reassigned to the USAR Control Group (Reinforcement).  At the time of her transfer to the IRR she held the grade of captain (CPT/O-3) with a DOR of 31 March 2004.

4.  Orders Number C-09-917121, issued by the U.S. Army Human Resources Command (USAHRC), St. Louis, dated 25 September 2009, reassign her from the IMA to the USAR Control Group (Reinforcement) effective 21 September 2009.  The reason is cited as " Lack of MTOE or TDA Position."

5.  Headquarters, U.S. Forces-Afghanistan, Orders Number USFOR-A J1, dated 20 October 2009, show the Headquarters, Combined Security Transition Command - Afghanistan (CSTC-A) NATO Training Mission - Afghanistan (NTM-A) requested the applicant by name.

6.  On 16 January 2010, she was ordered to active duty in support of Operation Enduring Freedom (OEF) for a period of 400 days.

7.  She was considered and selected by the 2010 Major, Army Promotion List, Department of the Army Reserve Components Selection Board (RCSB).  The board results were approved on 3 June 2010.

8.  USAHRC, Fort Knox, Orders B-03-101935, dated 31 March 2011, promoted her to the rank of MAJ with an effective date and DOR of 30 March 2011.

9.  In the processing of this case, an unfavorable advisory opinion was received from the Deputy Chief of Special Actions Branch, USAHRC.  The advisory official stated the applicant was:

   a.  assigned to an IMA control group prior to her assignment to the Reinforcement Control Group on 21 September 2009.  This reassignment was made due to the lack of a Modified Table of Organization and Equipment (MTOE) or Table of Distribution and Allowances (TDA) position. 
   
   b.  ordered to active duty on 16 January 2010 but remained assigned to the Reinforcement Control Group.
   
   c.  selected for promotion by the FY10 MAJ-APL Selection Board.
   
   d.  promoted to MAJ with a DOR of 30 March 2011, the date she met the maximum TIG requirement in accordance with Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) , paragraph 4-15.
   
10.  The opinion further states the ASA(M&RA) implemented a policy effective 
14 January 2005 which allowed officers voluntarily ordered to active duty under Title 10, US Code, Section 12301(d), who were on a promotion list to be promoted without regard to the existence of a vacancy or placement against a position of a higher grade.  This policy was superseded by OCAR (with approval from ASA(M&RA)), on 4 December 2009, and effective 16 January 2010.  As of that date the promotion requirements as outlined in Army Regulation 135-155 were reinstated and the 14 January 2005 policy became obsolete.  Based on her status as an IRR, 30 March 2011 is her correct DOR.
11.  In her rebuttal, the applicant argues two points.

	a.  She was moved to the IRR solely because of the general's request, and because his staff believed that being in the IRR was the best way to mobilize her in order to meet the operational requirement and not because of a lack of an MTOE or TDA position.  She states she is now filling a position that is graded up to a lieutenant colonel (LTC/O-5).

	b.  The policy change did not allow for exceptions for individuals who had made deployment decisions based on the policy that was current at the time.  In her situation the policy was changed on 4 December 2009, long after the decision to transfer her to the IRR and to deploy her in that status.  The change caused her promotion to be delayed; however, she contends that had she or her chain of command known about the policy change she would have had the option to mobilize in a different fashion that would allow her to be promoted without delay.  The new policy went into effect on 16 January 2010 after her deployment orders were issued.  It took another 6 months before anyone at USAHRC noticed that there would be a problem processing her selection by the March Promotion Board.  In fact, USAHRC was still directing her as late as February 2010 to complete her submission for the MAJ Promotion Board.  Her promotion would not contribute to the problems the policy memorandum is trying to avoid.

12.  The applicant provides several email messages which essentially document discussions between the applicant, G3/5/7, and her gaining command relating to her transfer to her mobilization, transfer to the IRR, and BNR.  The following email correspondence is of note:

   a.  On 16 October 2009, between the applicant and the G-3/5/7, the applicant states "LTG C said that the process is that I would be transferred back to the IRR (unless the division wanted to send me via a World Wide Individual Augmentee System (WIAS), which we know they don't) and then I would be assigned from there via a mechanism similar to ADSW.  He said that if that if the division doesn't want to keep me on their books and use a WIAS, then it probably doesn't make sense to correct the recent transfer back to the IRR, that would just involve another step in transferring me back next month."
   
   b.  In an email dated 16 October 2009 between the applicant and LTC JG, Training and Doctrine Command, the applicant states "Funnily enough, while all this was going on, the system actually dumped all the Reservists in our division into the IRR last week by mistake because the line numbers for our positions had changed.  So instead of reinstating me right away, we just asked them to hold off.  That saves us a step! They're passing it next to the IRR Mobilization office, so I'll be in touch with them on Monday."

13.  In addition, she provides two promotion policy memoranda:

	a.  An ASA(M&RA) memorandum, Subject:  Promotion of Volunteers on Active Duty Under the Provisions of Title 10 U.S. Code, Section 12301(d), dated 
14 January 2005.  This policy was applicable to all Reserve Component commissioned officers (IRR and Selected Reserve) on the reserve active status list, other than warrant officers, who are ordered to active duty for not less than three months, and who are on an approved mandatory selection board promotion list.  It provides as exception to policy to Army Regulation 135-155, paragraph 4-9a, which requires as a condition for promotion that an officer selected by a mandatory promotion board be assigned or attached to a permanent RC position requiring the higher grade.

	b.  An OCAR memorandum, with the same subject, dated 4 December 2009, reinstated the original policy; therefore, as a condition of promotion an officer selected by a mandatory promotion board must be assigned or attached to a permanent vacancy position requiring the next higher grade, or be promoted and reassigned to the IRR.  Reinstatement of the policy was due to the USAR being overstrength in TPU LTCs and COLs.  A contributing factor was the promotion of officers on AD for Operational Support tours.  Most of the officers promoted under these provisions are accepting multiple tours and do not intend to remain in the position for any length of time.  Further, because there is no requirement to remain in the position after promotion, these officers cannot be effectively tracked and can move from one tour to another without the unit ever seeing the officer.  This results in officers being promoted against positions they will never fill. 

14.  Army Regulation 135-155 prescribed the policies and procedures for promotion of Reserve officers.  This regulation specifies that completion of 
12 years time in service and 7 years time in grade is required before promotion to major.  Officers assigned to a unit must be serving in a position requiring the higher grade or assigned to the IRR or as an IMA.  In addition, IRR and IMA officers selected by a mandatory promotion board must have completed the maximum TIG. 

15.  Army Regulation 135-155, paragraph 4–9a, states a USAR TPU officer who is considered and selected by a mandatory promotion board will be promoted and transferred from the unit to the IRR if not in the higher-graded position.  The officer will be promoted within 60 days of receipt of promotion notification or the normal established promotion eligibility date, whichever is later.  

16.  Army Regulation 135-155, paragraph 4-15, states IRR/IMA officers selected by a mandatory promotion board, must have completed the maximum years of service in grade in the current grade.
   
DISCUSSION AND CONCLUSIONS:

1.  The applicant requests her effective date and date of rank for her promotion to MAJ be corrected from 30 March 2011 to 30 March 2010.  

2.  She contends that she should be promoted under the ASA(M&RA) policy, dated 14 January 2005, which allowed IRR and Selected Reserve officers who voluntarily were ordered to active duty and were recommended for promotion to the next higher grade by a mandatory promotion board and on an approved promotion list to be promoted immediately when matched against a vacant position of the higher grade in the Selected Reserve.  She states her promotion was delayed because she was erroneously transferred to the IRR due to a clerical error and only elected to remain in the IRR in order to facilitate a General Officer BNR for assignment to the Headquarters, CSTC-A/NTM-A.

3.  The evidence shows on 25 September 2009 the applicant was transferred from an IMA position to the IRR because she had been slotted against an invalid position for over one year.  There is no official confirmation that the transfer was made in error.

4.  The BNR provided with her application is dated 20 October 2009.  On           16 January 2010, she was ordered to active duty in support of OEF.  Email correspondence provided by the applicant shows she requested to remain in the IRR and not to be transferred back to her IMA position because remaining in the IRR would allow the BNR to be processed more expeditiously.  She was subsequently selected for promotion to MAJ by the FY10 MAJ-APL Selection Board which was approved on 3 June 2010.  She was promoted to MAJ with a DOR of 30 March 2011, the date she met the maximum TIG requirement.   

5.  Further, the email correspondence shows she vigorously sought assignment with the CSTC-A/NTM-A and voluntarily elected to remain in an IRR status in order to facilitate said assignment.  She remains in an IRR position to date.  The applicant has failed to provide sufficient evidence to show she attempted to find an IMA position between the date she was transferred to the IRR and the date her promotion board results were approved; or provided evidence to satisfactorily show her transfer to the IRR was erroneous; therefore, she was promoted to MAJ in accordance with applicable regulation and her DOR and promotion effective date for MAJ are proper.

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)                                         AR20110000636





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ABCMR Record of Proceedings (cont)                                         AR20110000636



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