IN THE CASE OF:	  

		BOARD DATE:	  24 January 2012

		DOCKET NUMBER:  AR20110008566 


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 he be:

* Paid the difference in base pay and allowances between captain (CPT) and major (MAJ) for the period 1997 through 2007
* Returned to active duty to be afforded the opportunity to complete education requirements for promotion to lieutenant colonel (LTC)

2.  The applicant states:

	a.  In 1996, he accepted a voluntary separation incentive (VSI) and was transferred into the Individual Ready Reserve (IRR).  In 1997, he was notified that he had been promoted to MAJ having reached the 7 year maximum time in grade for CPT; however, he never received a copy of his orders.  On 25 January 2000, he transferred to the 4013th U.S. Army Reserve (USAR) Garrison Support Unit (GSU), Fort Polk, LA, and he asked about his promotion to MAJ.  He was told the promotion did not occur as there was nothing in his records.  

	b.  He was mobilized at Fort Polk, LA, from 17 January 2003 to 13 July 2005, then returned to the 4013th USAR GSU.  In April 2006, a friend congratulated him on his promotion to MAJ and said Army Knowledge Online (AKO) showed his rank as MAJ.  This was confirmed by the unit S-1.  Orders show his date of rank (DOR) to MAJ as 30 November 1997 with an effective date of 26 April 2006.  He filed a request for back pay and was told it was denied.  He asked to be slotted for the Intermediate-Level Education (ILE) course but was told all slots were filled until summer 2007.
	c.  On 14 November 2006, he transferred to the 104th Troop Program Unit (TPU).  His unit was activated and he served on active duty from 25 January 2007 to 13 July 2008.  He deployed to Iraq from 18 April 2007 to 7 April 2008.  Prior to leaving for Iraq, he called the U.S. Army Human Resources Command (HRC) and was told his promotion packet would go before the LTC board.  He was told that since he had not completed the required education requirements, he would be deemed not educationally complete, but he would not be considered passed over for LTC.

	d.  He completed Phase 1 of ILE when he returned from Iraq and while he was on leave.  He asked the 104th TPU to sign him up for the ILE correspondence course and was told effective 12 May 2008 he had been transferred to the 4013th USAR GSU.  In July 2008, he transferred to the 90th Regional Readiness Command (RRC), Little Rock, AR.  He asked about ILE and was told he would have to wait until he was in a regular Reserve unit.  On 26 March 2009, he transferred to the 75th Battle Command Training Division (BCTD), Houston, TX, and again asked about ILE.  He was told all classes were filled and he needed to apply for correspondence courses.  He did so and tried to get classes started but kept getting delayed. 

	e.  On 8 December 2009, he received notice that he was being mandatorily retired effective 31 December 2009 as he had been passed over twice for LTC.  Had he been promoted to MAJ on 30 November 1997, with a DOR of 30 November 1997, his promotion packet would have been sent to a promotion board for a first look in 2002, second look in 2003, and a third look in 2004.  He would have been assigned to MAJ slots, received several Officer Evaluation Reports (OER) as a MAJ, and been eligible to complete ILE correspondence courses.  As the LTC selection rate was over 97 percent in 2004, the probability of his being promoted to LTC was high.  He made every effort to correct this injustice but had been hampered by an ineffective chain of command.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 215 (Correction to DD Form 214)
* DA Form 3349 (Physical Profile)
* Two DA Forms 873 (Certificate of Clearance and/or Security Determination)
* Four DA Forms 67-8 (OER)
* Three memoranda
* Thirteen orders
* Eight pages of email
* One page award narrative
* One page titled Army Promotion List (APL) Statistics

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show he was appointed as a USAR Infantry (IN) second lieutenant and executed an oath of office on 12 May 1984.  He entered active duty on 4 January 1985.  He served in staff and leadership positions and he attained the rank/grade of CPT/O-3, USAR, on 1 June 1989.  

3.  He was honorably released from active duty on 15 April 1996 by reason of early release program-VSI and was transferred to the USAR Control Group (Reinforcement).  He completed 11 years, 3 months, and 12 days of creditable active service.

4.  On 25 January 2000, he was assigned to the 4013th USAR GSU.  He was ordered to active duty in support of Operation Enduring Freedom and served on active duty from 17 January 2003 to 13 July 2005.

5.  Orders Number B-04-603359, dated 26 April 2006, issued by HRC, promoted him the rank/grade of MAJ/O-4, USAR, effective 26 April 2006 with a DOR of 30 November 1997.

6.  On 8 December 2006, he was assigned to the 7th Brigade, 104th Division, Dublin, CA.  He was ordered to active duty in support of Operation Iraqi Freedom and served on active duty from 25 January 2007 to 13 July 2008.  

7.  He was reassigned as follows:

* On 14 July 2008, to the 4013th USAR GSU
* On 29 July 2008, to the 90th RRC
* On 26 March 2009, to the 75th BCTD
8.  Orders Number 09-342-00017, dated 8 December 2009, issued by Headquarters, USAR Command, assigned him to the Retired Reserve, effective 31 December 2009, by reason of non-selection for promotion.

9.  In the processing of this case, an advisory opinion was received on 29 December 2011 from the Chief, Department of the Army Promotions, HRC.  The advisory official recommended disapproval of the applicant's request for back pay, return to active duty, and reconsideration for promotion to LTC and stated the following:

	a.  The applicant was selected for promotion by the fiscal year (FY) 1997 (97) MAJ Standing APL Selection Board with a promotion eligibility date (PED) of 31 May 1996.  The applicant had an outdated physical which was one of the promotion requirements; therefore, promotion action was suspended.  He was assigned to a TPU on 25 January 2000 and promotion action was again initiated.  A review of his record revealed a Suspension of Favorable Personnel Action (Flag) was in place because he exceeded the maximum allowable weight (MAW) and had failed the Army Physical Fitness Test (APFT).  In addition, he had an outdated physical and was not assigned to a higher-grade position.  Promotion action was again suspended as he was not in a promotable status.

	b.  On 10 February 2005, a policy was published allowing officers to be promoted without a current physical, security clearance, or APFT, and without meeting the MAW if they were not flagged.  The policy did not affect the applicant as he continued to be flagged for weight control due to exceeding the MAW.

	c.  On 18 April 2006, the Office of Promotions was directed to finalize promotion action for officers who were currently flagged.  The officers were to be promoted no later than 18 months after the date on which he/she would otherwise have been promoted and the effective date for pay was to be the date the promotion order was published.  The applicant was promoted to MAJ with a DOR of 30 November 1997 and an effective date of 26 April 2006.

	d.  Due to the fact that the applicant remained on the promotion list as a result of his selection by the FY97 MAJ APL Selection Board and was not yet promoted, he was not eligible for promotion consideration to LTC.  The flag remained on the applicant until 2006; therefore, he was not eligible to attend school prior to April 2006.  

	e.  Upon the issuance of promotion orders to MAJ, he was immediately in the zone for promotion consideration to LTC.  He was considered but non-selected for promotion by the FY06 through FY09 LTC Selection Boards as not educationally qualified.  He was selected for retention in an active status to complete 24 years of commissioned service.  

	f.  Prior to the FY08 LTC Selection Board, he was contacted by HRC and informed his military education status was not educationally qualified.  On 20 May 2008, he requested and was scheduled to attend Phase 1 of ILE with a start date of 15 June 2008.  There is no evidence he attended and completed the course.

	g.  Officers who will be considered to promotion to MAJ and LTC have the opportunity to request a military education waiver and review/update their board file.  The officer can submit a memorandum to the President of the board to address any issues concerning their file.  The applicant did not take any of these opportunities and was correctly non-selected for promotion to LTC.

10.  On 4 January 2012, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal; however, he did not respond.

11.  Title 10, U.S. Code 14311, in pertinent part, states under regulations prescribed by the Secretary of Defense, the appointment of an officer to a higher grade may be delayed if on the date on which the appointment would otherwise be made the officer lacks promotion qualifications.

12.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions), paragraph 1-14, in pertinent part, states a flag properly imposed in accordance with this regulation prohibits the processing of personnel actions.  Paragraph
1-15 of this regulation states flags for APFT failure block promotion, reenlistment, and extension only.  Flags for weight control block only attendance at full-time civil or military schooling, promotion, awards and decorations, assumption of command, and reenlistment or extension.

13.  Army Regulation 135-155, paragraph 2-5, states while on a promotion list to a higher grade resulting from a 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should paid the difference in pay and allowances between CPT and MAJ for the period 1997 through 2007 and returned to active duty to be afforded the opportunity to complete the education requirements for promotion to LTC.

2.  The evidence of record shows the applicant was selected for promotion to rank of MAJ by the FY97 Selection Board with a PED of 31 May 1996; however, he was not promotable at that time due to having an outdated physical.  Upon his assignment to a TPU in January 2000, promotion action was again initiated.  He was not in a promotable status from January 2000 through April 2006 due to his having an outdated physical and being flagged for exceeding the MAW and APFT failure.

3.  In April 2006, guidance was issued to finalize promotion action for officers who were flagged.  In accordance with the guidance, he was correctly promoted to the rank of MAJ with an effective date of 26 April 2006 and a DOR of 30 November 1997.

4.  Prior to April 2006, he was not eligible to attend ILE as he was flagged for exceeding the MAW.  He also was not in the zone for consideration for promotion to LTC until he was promoted to MAJ in April 2006.  He was considered and not selected for promotion by the FY06, FY07, and FY09 Selection Boards as not educationally qualified.  

5.  There is no evidence in his available record and he did not provide any evidence that shows he attended and completed the 15 June 2008 ILE class he was scheduled to attend.  There is no evidence in his available record and he did not provide any evidence that shows he requested a military education waiver.  

6.  In view of the foregoing, he is not entitled to 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)                                         AR20110008566





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ABCMR Record of Proceedings (cont)                                         AR20110008566



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