IN THE CASE OF:	  

		BOARD DATE:	  21 September 2011

		DOCKET NUMBER:  AR20110004001 


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 captain (CPT) date of rank (DOR) be backdated from 24 February 2010 to an earlier date. 

2.  The applicant states that upon his return from Kosovo, he was assigned to his troop program unit (TPU).  His unit informed him to put in his promotion packet.  He did so and he was selected for promotion by the 2009 CPT Army Medical Department (AMEDD) Selection Board.  However, his unit S-1 told him he could not be promoted because he (the applicant) was assigned to the Medical Hold of the 99th Regional Support Command (RSC).  The regulation governing promotion is clear in that Soldiers placed in the WTU/CBWTU (Warrior Transition Unit/Community Based WTU) for medical reasons would not be denied promotion.  He was ultimately promoted to CPT some 9 months later with no back pay or a backdated DOR.  He feels he is being punished for reporting his injuries as doing so has impacted his promotion. 

3.  The applicant provides Orders B-02-001206 (promotion to CPT) and email exchange with other individuals.

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer in the rank of first lieutenant and executed an oath of office on 7 September 2006 and with a DOR as 7 September 2005 (3 years of constructive service credit with the extra year applied toward his DOR).   

2.  He completed the AMEDD Officer Basic Course and he was initially assigned as a medical surgical nurse to a TPU, the 4219th U.S. Army Hospital (USAH), Picatinny Arsenal, NJ.  He was later reassigned in or around February 2007 to another TPU, the 3274th USAH, Fort Bragg, NC.

3.  He entered active duty on 12 July 2007 and subsequently served in Kosovo from 11 September 2009 to 8 July 2008.  He was honorably released from active duty on 11 August 2008.

4.  In or around August 2008, he was reassigned to the 7238th IMSU (Installation Medical Support Unit), Fort Hamilton, NY.  

5.  On 5 November 2008, Headquarters, 99th RSC, published Orders 08-310-00020 reassigning him from the 7238th IMSU to the TTHS (Trainees, Transient, Holdees, and Transient) Account with duty at the Troop Medical Clinic, 7238th IMSU, Brooklyn, NY.

6.  The TTHS account increases unit readiness by removing non-deployable soldiers from TPU force structure positions.  It produces Duty Military Occupational Skill Qualified (DMOSQ) Soldiers available for deployment as needed to fulfill the Army Reserve's missions.  Soldiers who are non-DMOSQ or otherwise non-deployable are no longer assigned to units.  Instead, they will be assigned to the TTHS account.  Soldiers in the TTHS account are no longer the responsibility of individual units, but will be managed by TTHS Managers at the Regional Readiness Command (RRC) level.  Soldiers continue to drill, but the training may be with a different unit.  

7.  On 17 February 2010, Headquarters, 99th RSC, published Orders 10-048-00027, reassigning him from the TTHS Account back to the 7238th IMSU.

8.  On 26 February 2010, the U.S. Army Human Resources Command, St. Louis, MO (HRC-STL), published Orders B-02-001206 promoting him to CPT with a DOR and effective date as 24 February 2010.

9.  Various entries pertaining to the applicant on the Integrated Web Services (IWS) of the HRC web site show the following:

* 15 May 2009:  Selected on the 2009 CPT AMEDD with a PED (promotion eligibility date) 20100906 - promotion pending, not in a position
* 22 June 2009, received call from promotions stating the Soldier is ineligible for promotion until reaching his PED and assigned to a valid slot
* 5 November 2009, Soldier inquired about promotion, informed Soldier that he is not in a valid slot; Soldier stated that his S-1 stated that he will not promote him until he has a medical situation taken care of
* 5 November 2009, directed Soldier that he needs to complete his PHA (physical health assessment); informed Soldier on how to transfer units; provided point of contact for the Medical Commands for valid slots in his area; informed Soldier that promotion orders are generated at HRC
* 12 November 2009, after speaking to the Soldier's S-1 and promotions branch, informed Soldier to retake his PHA; informed Soldier that he can't receive a promotion while in the TTHS
* 20 January 2010, Soldier has taken another PHA; called unit S-1 and informed her of updated PHA; Unit S-1 will provide update to 99th RSC for transfer of Soldier to a unit for promotion

10.  He submitted various email exchange with his unit S-1, AMEDD career manager, and others that show:

* 21 October 2008, his career manager advised him that his records would be considered by the January 2009 CPT AMEDD Reserve Components Board
* 6 June 2009, his unit S-1 informed him he was not in a valid position and that he was assigned to the TTHS for medical reasons
* 8 June 2009, he acknowledged the TTHS assignment but stated the medical issue had been resolved since the Department of veterans Administration had awarded him disability for his left ear problem
* 9 June 2009, the unit S-1 informed him the medical issues had not been resolved yet and he remained assigned to the TTHS
* 3 March 2010, he informed his unit S-1 he received the promotion order but he was under the impression his DOR would be backdated to January 2009
* 3 March 2010, his unit S-1 informed him that his promotion is effective on the date he was assigned to a valid position for promotion
* 3 March 2010, he stated that he felt he was being punished twice for reporting his injury that he received in a combat zone
* 4 March 2010, HRC promotion branch informed him based on his 7 September 2005 1LT DOR and a 5-tear time in grade for promotion to CPT, his promotion eligibility would be 6 September 2010
* 4 March 2010, since he was placed in a CPT position on 24 February 2010, he was promoted on that date, prior to his promotion eligibility date 

11.  On 21 September 2011, by fax, the applicant submitted an email, dated 6 September 2011, from an official at the USARC who states that all 66H positions in the 7238th IMSU are either O-4 or O-3 positions.  There is no way the applicant could have been assigned to a 1LT position.  He then added that obtaining a Unit Manning Roster from that time frame is difficult because the applicant's name would not have shown on it anyways since he was in the TTHS account, not actually in a 66H position. 

12.  An advisory opinion was obtained from HRC, Officer Promotions Branch.  An official recommended disapproval.  He stated that:

	a.  The applicant was recommended for promotion during the 2009 CPT AMEDD selection board; however, during the period 5 November 2008 through 17 February 2010, he was assigned to the TTHS account.  The TTHS account is designed for students who are under medical, legal, and administrative separation actions and for Soldiers who are transferred from unit to unit.  During this period, an officer is not assigned to a valid position. 

	b.  The applicant was released from TTHS on 17 February 2010 and further assigned to a valid AMEDD position effective 24 February 2010.  In accordance with Army Regulation 135-155 (Promotion of Commissioned Officers and warrant Officers Other Than General Officers), paragraph 4-9, officers promoted prior to their maximum time in grade may be done so if the officer is assigned to a higher grade position (unless otherwise ineligible).  The applicant achieved his maximum time in grade to CPT on 6 September 2010. 

13.  In his rebuttal, the applicant stated he disagrees with the advisory opinion and that he was unaware that he was assigned to the TTHS.  He was fully deployable after leaving Kosovo and qualified in his specialty.  He did not fall in any TTHS category.  

14.  Army Regulation 135-155 (Army National Guard and Army Reserve Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for the promotion of Reserve Component officers.  

	a.  Paragraph 2-5 (Eligibility for consideration), states to be eligible for consideration for promotion to the next higher grade, a USAR officer must have continuously performed service on either the RASL (Reserve Active Status List) or the ADL (Active Duty List) (or a combination of both lists) during the 1– year period ending on the convening date of the promotion board, and must meet the time in grade requirements in tables 2-1 or 2-3, as appropriate.  USAR officers will be considered for promotion in their competitive category only.  While on a promotion list resulting from a prior mandatory or position vacancy promotion board or approved for Federal recognition in the higher grade and nominated for Reserve promotion on that basis, an officer may not be considered for promotion by a subsequent mandatory or position vacancy promotion board.

	b.  Table 2-1 (Time in grade requirements) states for promotion from 1LT to CPT, the minimum time in grade requirements is 2 years and the maximum time in grade requirements is 5 years. 

	c.  Paragraph 4-9 (Officers selected for promotion) 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 (Individual Ready Reserve). The officer will be promoted within 60 days of receipt of promotion notification or the normal established promotion eligibility date, whichever is later.  Transfer to the IRR will not occur when the officer:

* fills a vacancy in the unit in a higher grade
* is an officer, other than an AMEDD officer (except Medical Corps or Dental Corps officers), retained in the unit in an overstrength status
* is in an authorized position
* requests delay of promotion
* declines promotion

DISCUSSION AND CONCLUSIONS:

1.  The applicant was appointed in the USAR as a 1LT on 7 September 2006 with a DOR of 7 September 2005.  His promotion eligibility for promotion to CPT would have been 6 September 2010.  

2.  He was selected for promotion to CPT by the 2009 CPT AMEDD selection board.  However, this promotion, prior to his PED, would have required him to occupy a position in the higher grade.  However, between 5 November 2008 and 17 February 2010, he was assigned to the TTHS account due to what appears to be medical reasons.  During this period, he was not assigned to a valid position. 

3.  He was released from TTHS on 17 February 2010 and further assigned to a valid AMEDD position effective 24 February 2010.  In accordance with the applicable regulation, officers selected for promotion prior to their maximum time in grade may be promoted if the officer is assigned to a higher grade position (unless otherwise ineligible).  The applicant was properly promoted on 24 February 2010, prior to achieving his maximum time in grade to CPT on 6 September 2010.  There is neither an error nor an injustice.



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)                                         AR20110004001



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ABCMR Record of Proceedings (cont)                                         AR20110004001



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