IN THE CASE OF:	   

		BOARD DATE:	  1 March 2012

		DOCKET NUMBER:  AR20110021246 


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:

* correction of his date of rank (DOR) to lieutenant colonel (LTC) from 21 May 1999 to 29 May 1998
* back pay and allowances for LTC vice major (MAJ) from 29 May 1998 to 27 March 2001

2.  The applicant states he was forced into retirement by an error on the part of the U.S. Army Reserve (USAR) and placed in the Retired Reserve effective 1 June 1999.  He was notified on 2 November 2004 that an Army Special Selection Board (SSB) promoted him to LTC effective 29 May 1998, not 21 May 1999.  He was not compensated when he was placed in the Retired Reserve from 1 June 1999 to 27 March 2001.  The issue of awarding him back pay, allowances, and retirement points was decided in his favor when the Army SSB promoted him to LTC effective 29 May 1998 per the U.S. Army Human Resources Command (HRC) memorandum, dated 2 November 2004.  He requests that the USAR be directed to compensate him.  He discovered this error upon his retirement from the USAR on 26 October 2008.

3.  The applicant provides:

* two memoranda
* DD Form 149 (Application for Correction of Military Record), dated 22 July 2002
* five orders
* an email
* two DA Forms 67-9 (Officer Evaluation Report (OER)) 
* a letter
* USAR Personnel Command Form 249 (Chronological Statement of Retirement Points)

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.  Having prior service in the U.S. Air Force, the applicant was appointed as a first lieutenant (1LT) in the New Jersey Army National Guard on 23 March 1982.  He was appointed as a 1LT in the USAR on 16 February 1983.  He was promoted to captain on 10 June 1983 and MAJ on 9 June 1990.

3.  Based on 7 years of required time in grade, his promotion eligibility date to LTC was 8 June 1997.  He was considered but not selected for promotion to LTC by the Fiscal Year (FY) 1996, 1997, and 1998 Reserve Component Selection Boards (RCSB).

4.  On 14 April 1999, he applied to the ABCMR and requested to be promoted to LTC effective 9 June 1997 based on unfairly not being selected for promotion by the FY98 RCSB.

5.  On 9 December 1999, the ABCMR denied his request and determined there was insufficient evidence to show his nonselection was unfair or unjust.

6.  Orders 141-34, dated 21 May 1999, issued by the 99th Regional Support Command (RSC), Oakdale, PA, reassigned him to the Retired Reserve by reason of voluntary transfer effective 1 June 1999.  On 2 January 2005, these orders were amended to show he was transferred to the USAR Control Group (Reinforcement).

7.  On 22 July 2002, he requested reconsideration of his earlier request for promotion to LTC effective 9 June 1997 and reinstatement in the USAR.

8.  On 28 February 2003, the ABCMR notified him that his application was being administratively closed and his request was being forwarded to the HRC Office of Reserve Components Promotions for action by the Special Boards Review Team.

9.  His records were considered by the 2003 SSB and the SSB recommended him for promotion to LTC under the 1997 LTC Army Promotion List (APL) board criteria.  On 31 July 2003, the SSB adjourned and the SSB was approved on 27 October 2004.  On 13 January 2005, a promotion memorandum was issued promoting the applicant to LTC with a DOR of 21 May 1999 and an effective date for pay and allowances of 21 May 1999.

10.  He was ultimately transferred to the Retired Reserve in the rank of LTC on 26 October 2008.

11.  An advisory opinion, dated 19 December 2011, was obtained from the Chief, Promotions, HRC, in the processing of this case.  The advisory official recommended denial of the applicant's request to adjust his DOR to LTC and opined the following:

	a.  A review of the applicant's records show he was transferred from the 99th RSC as a member of a troop program unit (TPU) to the Retired Reserve effective 1 June 1999.  His request to revoke his Retired Reserve status was forwarded to the 99th RSC on 2 January 2005 and the revocation and amendment orders were published assigning him to the Individual Ready Reserve (IRR) effective 1 June 1999.

	b.  The promotion memorandum issued on 13 January 2005 promoted him to LTC and awarded him a DOR of 21 May 1999, which was the date he was transferred to the IRR.  However, the effective date of the transfer to the IRR was 1 June 1999 and that was the DOR that he should have been awarded.  He submitted numerous requests to amend his DOR to LTC to 29 May 1998, which was the approval date of the 1997 LTC APL Board.  However, at that time he was a member of the TPU assigned to the 99th RSC.  The requirements for promotion as a member of the TPU are:

* documentation verifying assignment to a higher-grade position
* current physical
* current security clearance
* Army Physical Fitness Test (APFT) and maximum allowable weight (MAW)
* no flagging action on record

	c.  Our records indicate the applicant met the requirements for a current security clearance, APFT and MAW, and had no flagging action on record.  However, documentation is required to verify there was a current physical and that he was assigned to an LTC or higher-grade position for the period of service prior to 29 May 1998.  The required documentation to verify assignment to an LTC or higher-grade position is a unit manning report or a personnel qualification record.  Provided all promotion criteria are met, the approval date of the 1997 LTC APL Board, 29 May 1998, is the earliest amended DOR to LTC he should receive.

12.  On 3 January 2012 in a response to the advisory opinion, the applicant stated he was supplying documentation to show he was assigned to an LTC position on 28 January 1998 and he had a current physical on file at that time.  He provides the following:

	a.  A DA Form 4651-R (Request for Reserve Component Assignment or Attachment) that shows the Commander, Headquarters (HQ),11th Battalion, 80th Regiment (Combined Arms and Service Staff School (CAS3)), Fort Belvoir, VA, requested the applicant's assignment to that unit in paragraph/line number 002/01, position title Training Small Groups Leader, duty military occupational specialty (DMOS) 01A5K, and grade authorized O-5.  The commander signed the request on 7 December 1997 and addressed it to the Commander, Headquarters and Headquarters Company (HHC), 78th Division, Edison, NJ.  The HHC, 78th Division commander signed the request on 10 January 1998.

	b.  Orders 028-96, dated 28 January 1998, issued by the 77th RSC, Fort Totten, NY, assigned him to HQ, 11th Battalion, 80th Regiment, 6th Brigade, 80th Division, Fort Belvoir, VA, effective 28 January 1998 in position 0310, paragraph/line number 002/01, and DMOS 01A5K.

	c.  A DA Form 67-9, dated January 1999, shows he was rated for a period of 8 months from 1 October 1997 through 30 September 1998 while assigned to the 11th Battalion, 80th Regiment, 6th Brigade, 80th Division, as a CAS3 Staff Group Leader in DMOS 01A5K.  His senior rater was Colonel (COL) J____ E. S____.

	d.  A DA Form 67-9, dated January 2000, shows he was rated for a period of 8 months from 1 October 1998 through 31 May 1999 while assigned to the 11th Battalion, 80th Regiment, 6th Brigade, 80th Division, as a CAS3 Staff Group Leader in DMOS 01A5K.  His senior rater was COL J____ E. S____.
	e.  An email from COL J____ E. S____, dated 3 May 2005, shows he verified the applicant was assigned to the 11th Battalion, 80th Regiment, 6th Brigade, 80th Division, as a CAS3 Instructor in an LTC billet in January 1998.  He stated he was the commander of the 6th Brigade at the time and he was the applicant's senior rater.

	f.  A Standard Form 88 (Report of Medical Examination), dated 6 March 1999, shows he was given a physical examination at the Physical Examination Facility, Fort Totten, NY.  Item 16 (Purpose of Examination) shows it was a quinquennial (5-year) physical.  The examining physician noted the applicant was qualified for retention.

   g.  The applicant stated he had a current physical on file prior to 6 March 1999 and he was given the physical on that date as a mandatorily-scheduled 
(5-year) physical.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the 2003 SSB selected the applicant for promotion to LTC under the 1997 LTC APL board criteria.  A promotion memorandum was issued on 13 January 2005 promoting him to LTC with a DOR of 21 May 1999 and an effective date for pay and allowances of 21 May 1999.  Since there is no evidence to show he has not been paid as an LTC from 21 May 1999 to 27 March 2001, it appears no action needs to be taken on this portion of his request and it will not be discussed further in this Record of Proceedings.

2.  The Chief, Promotions, HRC, opined that if documentation was provided to verify the applicant was assigned to an LTC position prior to 29 May 1998 and had a current physical at that time, the approval date of the 1997 LTC APL Board, 29 May 1998, was the earliest amended DOR to LTC he should receive.

3.  The applicant provided sufficient documentation to show he served in an LTC position as a CAS3 Staff Group Leader, 80th Division [TPU], Fort Belvoir, VA, from 28 January 1998 through 31 May 1999.  In addition, he provided documentation to show he completed his 5-year physical examination on 6 March 1999.  As HRC already verified, the applicant met the APFT and MAW standards and his records were not flagged.  It is reasonable to presume he had a valid physical while he was assigned to the 80th Division, that the March 1999 physical was a regularly-scheduled physical, and that he met the promotion criteria as of 28 January 1998.  Therefore, his DOR to LTC should be amended to 29 May 1998.

4.  With respect to his request for back pay and allowances for LTC from 29 May 1998 to 27 March 2001, he was promoted to the rank of LTC with an effective date for pay and allowances of 21 May 1999.  Therefore, he is only entitled to back pay and allowances for LTC from his amended DOR of 29 May 1998 (approval date of the 1997 LTC APL Board) to 20 May 1999 (1 day prior to his current promotion date).  He provides no evidence to show he is due any additional pay and allowances

BOARD VOTE:

____X___  ____X___  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* amending the promotion memorandum issued in 13 January 2005, dated 21 May 1999, to show he was promoted to LTC, USAR, with an effective date and date of rank of 29 May 1998
* paying him any back pay and allowances due as a result of this correction




      ____________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)                                         AR20110021246



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ABCMR Record of Proceedings (cont)                                         AR20110021246



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