IN THE CASE OF:	  

		BOARD DATE:	  8 May 2012

		DOCKET NUMBER:  AR20110018074 


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, an adjustment of his promotion effective date (PED) and date of rank (DOR) for major.

2.  The applicant states:

	a.  his previous promotion dates were 10 June, or earlier, of the year the promotion was due;

	b.  he was informed he had been selected for promotion by the board; however, his Troop Program Unit did not submit the required documentation to the U.S. Army Human Resources Command (AHRC) for the promotion to take effect;

	c.  his battalion commander did not want him to get promoted because he would not deploy with the unit to Iraq, due to a security clearance issue;

	d.  it is an injustice because some of his peers, who were commissioned with him and are now in the same unit, were promoted with their contemporaries and received all benefits; and

	e.  his promotion order should be amended to show a PED and DOR of 10 June 2003.

3.  The applicant provides AHRC Orders B-04-603387, dated 27 April 2006.

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.  On 10 June 1988, the applicant accepted an appointment in the U.S. Army Reserve (USAR) in the rank of second lieutenant (O-1).  He was promoted to first lieutenant (O-2), effective 24 May 1991.

3.  The applicant accepted an appointment in the Illinois Army National Guard on 10 May 1995, in pay grade O-2.  He was transferred to the USAR on 1 June 1996 and promoted to captain (O-3), effective 2 June 1996.  He was promoted to major (O-4), effective 27 April 2006, with a DOR of 9 December 2003.

4.  During the processing of this case an advisory opinion was obtained from the Chief, Department of the Army (DA) Promotions Special Actions, AHRC, who recommends denial of the applicant's request.  This official states the applicant's maximum promotion eligibility date, based on his selection for promotion by the 2002 Major, Army Promotion List Reserve Component Promotion Board, was initially established as 9 June 2002.  The board was released on 16 July 2002; however, the applicant was promotion ineligible due to a denied security clearance.  The applicant was subsequently flagged under suspension of favorable personnel actions for a security violation, effective 
25 May 2005.  In April 2006, Headquarters, Department of the Army, (St. Louis, Missouri) Office of Promotions was directed to promote the applicant in accordance with Title 10, section 14311 (10 USC 14311) and to award a DOR effective 18 months past the promotion eligibility date.  On 27 April 2006, the applicant was promoted to major with a 9 December 2003 DOR (18 months past 9 June 2002).

5.  The advisory opinion was forwarded to the applicant for acknowledgement and/or rebuttal on 18 January 2012.  No response was received.

6.  Title 10 USC 14311(b) provides when the appointment of an officer to a higher grade is delayed for lack of qualifications and the Secretary concerned later determines the officer is qualified for promotion to the higher grade, the officer shall be retained on the promotion list.  This section further provides the officer shall, upon promotion to the higher grade, have the same date of rank, the same effective date for pay and allowances of that grade, and the same position on the Reserve-Active-Status List (RASL) as the officer would have had if no delay had intervened, unless the Secretary concerned determines the officer was unqualified for promotion for any part of the delay.  Finally, this section explains if the Secretary makes such a determination, the Secretary may adjust such date of rank, effective date of pay and allowances, and position on the RASL as the Secretary considers appropriate under the circumstances.

7.  Title 10 USC 14311(d) provides that the appointment of an officer to a higher grade may not be delayed under subsection (a) or (b) for more than 6 months after the date on which the officer would otherwise have been promoted unless the Secretary concerned specifies a further period of delay.  An officer's appointment may not be delayed more than 90 days after final action has been taken in any criminal case against the officer in a Federal or State court of competent jurisdiction or more than 90 days after final action has been taken in any court-martial case against the officer.  Except for court action, a promotion may not be delayed more than 18 months after the date on which the officer would otherwise have been promoted.

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

	a.  This regulation specifies that an officer selected for promotion must meet all requirements before being promoted to include possessing a current (updated) security clearance.  When the officer does not meet the qualifications for promotion, the effective date of promotion will not be earlier than the later date all qualifications are met.  Promotion authorities will ensure that a favorable security screening is completed, to include an interim clearance, before announcing a promotion.

	b.  It also specifies that only the Secretary of the Army is authorized to determine whether an officer was unqualified for promotion during any part of an involuntary delay of promotion and make an adjustment to an officer's DOR and PED.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.
2.  The available evidence does not show any error or injustice in the delay of his promotion to major because of his security clearance.  He was disqualified from promotion to major when he was initially eligible because he did not have a valid security clearance.  He was subsequently promoted, in accordance with Title 10 USC 14311(d) because a promotion may not be delayed more than 18 months after the date on which the officer would otherwise have been promoted.

3.  The applicant has failed to provide any evidence showing that the delay in his security clearance was unavoidable or through no fault of his own.  While the Board may grant relief as a matter of equity when such evidence is available for review, its absence in this case precludes such consideration.

4.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20110018074





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ABCMR Record of Proceedings (cont)                                         AR20110018074



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