BOARD DATE:	  10 January 2012

		DOCKET NUMBER:  AR20110012019 


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 lieutenant colonel (LTC) date of rank (DOR) be adjusted to 1 August 2010 to coincide with his entry into the Regular Army (RA).   

2.  The applicant states he transferred from the U.S. Marine Corps Reserve (USMCR) to the U.S. Army Reserve (USAR) on 30 July 2010, and to the RA on 
1 August 2010.  He claims to have been advised by his branch manager that his LTC DOR would be adjusted to 1 August 2010 upon his entry into the RA and that this was a material condition of his transferring to the Army because he likely would have been promoted as a Marine.  He states the orders he received from the U. S. Army Human Resources Command (USAHRC) established his DOR as 1 August 2010 consistent with the advice he had received from his branch manager.  However, upon receipt of his Officer Evaluation Report (OER) he learned his DOR had not been changed and remained 1 July 2007.  He states prior to the transfer his DOR was discussed by all those involved in the process who were assured by the branch manager that his DOR would be adjusted in order to make him competitive with his peers.  

3.  The applicant provides the following documents in support of his application:

* Electronic mail (e-mail) messages regarding DOR adjustment
* RA active duty orders
* DA Form 71 (Oath of Office)



CONSIDERATION OF EVIDENCE:

1.  On 18 April 1991, the applicant enlisted in the USMCR and was appointed a second lieutenant on 16 August 1991.  During his USMCR service, he was promoted to the following grades on the dates indicated:

* First lieutenant, 16 August 1993
* Captain, 1 January 1996
* Major, 1 June 2001
* LTC, 1 July 2007

2.  On 30 July 2010, the applicant was appointed a LTC in the Army, and on 
1 August 2010, he entered active duty in the RA in that grade.  

3.  USAHRC, St. Louis, Missouri, Orders A-08-016756, dated 4 June 2010, ordered the applicant to active duty in the RA on 1 August 2010.  These orders indicated the applicant’s DOR was 1 August 2010.

4.  On 13 May 2011, the applicant was informed his LTC DOR has been adjusted to 27 November 2007 based on a recalculation of his service time as a LTC. 

5.  In connection with the processing of this case, an advisory opinion was obtained from the Chief, Officer Promotions, USAHRC.  This official states after reviewing all documents submitted by the applicant, it was determined relief is not possible without violating Federal law.  This official cites the legal authority requiring officers receiving an original appointment in the RA to retain the grade and DOR they held immediately before the appointment.  He further cites the governing law stipulation that the authority to change the DOR of a Reserve officer who is placed on the active duty list to a later date does not apply in the case of an officer who has served continuously in the Selected Reserve of the Ready Reserve since the officer’s last promotion.  This official further states their office was responsible for the grade determination for the applicant upon his call to active duty and the 1 August 2010 date in the orders was not the one they provided.  Further, a check with accessions branch produced no information regarding how the 1 August 2010 DOR was placed on the applicant’s orders, and that the branch manager is not the subject matter expert on DOR natters and should have consulted the promotions branch on this matter.  



6.  In regard to the applicant’s assertion that his DOR unjustly disadvantages him for promotion in that it does not give him enough time to become competitive for promotion and fails to give him normal development, this official states a review of the applicant’s record reveals four USMC fitness reports, three of which evaluate the applicant in the same specialty he holds in the Army, one Army OER, and the fact the applicant will receive one or more additional OERs prior to being considered for promotion.  He concludes the applicant will not be disadvantaged for promotion to colonel and that the DOR determination and adjustments made were accomplished in compliance with the governing law.  He concludes by stating the applicant’s 1 July 2007 DOR will not disadvantage him for promotion to colonel and administrative actions taken by their office were accomplished in accordance with the governing law.  

7.  On 14 November 2011, the applicant responded to the HRC advisory opinion.  He states the governing law does in fact allow the Army to change his DOR and to uphold its promise of a new DOR of 1 August 2010, which he detrimentally relied upon while transferring to the RA from the USMC Reserve.  He also outlines what he believes are inaccuracies in the advisory opinion.  

8.  The applicant provides e-mail messages that indicate he was negotiating an earlier DOR with senior officers in his community and branch officials.  These documents contain no commitment from the USAHRC promotions branch which is the responsible HRC office.  

9.  Title 10 of the U.S. Code, Section 533(f) (10 USC 533(f)) contains guidance on service credit upon original appointment as a commissioned officer.  It states a reserve officer (other than a warrant officer) who receives an original appointment as an officer (other than as a warrant officer) in the Regular Army, Regular Navy, Regular Air Force, or Regular Marine Corps shall:

	a.  In the case of an officer on the active-duty list immediately before that appointment as a regular officer, be appointed in the same grade and with the same date of rank as the grade and date of rank held by the officer on the active-duty list immediately before the appointment, and

	b.  In the case of an officer not on the active-duty list immediately before that appointment as a regular officer, be appointed in the same grade and with the same date of rank as the grade and date of rank which the officer would have held had the officer been serving on the active-duty list on the date of the appointment as a regular officer.



10.  10 USC 741 contains guidance on rank of commissioned officers of the armed forces.  Paragraph d(3) states under regulations prescribed by the Secretary of Defense, which shall apply uniformly among the Army, Navy, Air Force, and Marine Corps, the date of rank of a reserve commissioned officer (other than a warrant officer) of the Army, Navy, Air Force, or Marine Corps who is to be placed on the active-duty list and who has not been on continuous active duty since his original appointment as a reserve commissioned officer in a grade above chief warrant officer, W-5, or who is transferred from an inactive status to an active status and placed on the active-duty list or the reserve active-status list may, effective on the date on which he is placed on the active-duty list or reserve active-status list, be changed by the Secretary concerned to a later date to reflect such officer's qualifications and experience.  The authority to change the date of rank of a reserve officer who is placed on the active-duty list to a later date does not apply in the case of an officer who (A) has served continuously in the Selected Reserve of the Ready Reserve since the officer's last promotion, or (B) is placed on the active-duty list while on a promotion list as described in section 14317(b) of this title. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for an adjustment to his DOR as he was promised upon his transfer from the USMCR to the RA has been carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The USAHRC Chief, Promotions Branch confirms the applicant’s DOR was assigned in accordance with the governing law and regulation.  A review of 
10 USC 533 and 10 USC 741 confirms this determination.  The fact the applicant was misinformed regarding the DOR assignment does not alter the fact the governing law stipulates the Secretary’s authority to adjust a Reserve officer’s DOR to a later date does not extend to officers in the applicant’s situation.  

3.  Further, although the applicant does not agree, USAHRC promotion officials make a persuasive case that the applicant has received more than enough evaluations in his specialty, whether USMC fitness reports or Army OERs, to receive fair and equitable consideration for promotion to colonel.  As a result, absent any evidence of error or injustice, there is an insufficient evidentiary basis to support granting the requested relief. 



4.  The applicant is advised there is no reason for the Board to question the administrative adjustment changing his DOR to 27 November 2007 made by USAHRC based on recalculation of his service time.  Further, this administrative correction has no impact on this decision regarding the DOR assigned upon his transfer into the RA. 

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)                                         AR20110012019



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ABCMR Record of Proceedings (cont)                                         AR20110012019



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