IN THE CASE OF:	  

		BOARD DATE:  14 August 2012

		DOCKET NUMBER:  AR20110021711 


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 adjustment of his date of rank (DOR) to captain/pay grade O-3 to make him eligible for the 2012 U.S. Army Reserve (USAR) Major Promotion Board.

2.  The applicant states he was selected by the 2006 Captain Army Medical Department (AMEDD) (Reserve Component (RC)) Promotion Board.  He was precluded from transferring into a position paragraph and line number that would have made him eligible for promotion.  Should his DOR be adjusted earlier, he would be eligible for consideration by the 2012 USAR Major Promotion Board with his peers.

	a.  He was assigned to a first lieutenant position for a unit slated for deployment in November 2006.

	b.  The guidance from the 332nd Medical Brigade Commander to his battalion and detachment commanders was to delay any transfers out of units set for deployment.

	c.  The Personnel Policy Guidance for Reserve promotions at that time would have allowed for his promotion upon mobilization in late 2006.  However, the unit's mobilization was then delayed with the changes in Army Force Generation policies in 2007 and the unit was removed from the cycle in January 2007.

	d.  At the time he was able to transfer to a promotion eligible position there were no available Medical Service Corps (MSC) captain positions available in his battalion or within 300 miles from his home of record (Millington, TN).  He was promoted when he was assigned by the brigade commander in November 2007 as the company commander of a unit in Puerto Rico scheduled to deploy.

	e.  As a result, his DOR is currently behind Active Component and RC peers from the same commissioning year group.

3.  The applicant provides:

* memorandum for each officer in and above the zone of consideration for calendar year 2006, USAR Captain Army Medical Department (AMEDD) Promotion Selection Boards, dated 23 February 2006, from U.S. Army Human Resources Command (HRC)
* DA Form 67-9 (Officer Evaluation Report (OER)) for the period ending 30 September 2006
* OER for the period ending 11 September 2010
* memorandum, dated 27 September 2011, from the Commander, 936th Forward Surgical Team (FST)
* memorandum for record (MFR), dated 20 October 2011, from the Commander, 75th Combat Support Hospital (CSH)
* MFR, dated 24 October 2011, from First Lieutenant R___
* OER for the period ending 31 March 2011
* numerous emails between him and his Medical Service Corps assignment officer at HRC, dated from 3 February 2010 to 25 May 2011

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.  He was commissioned as a second lieutenant in the USAR on 5 March 2001.

3.  On 4 March 2003, he was promoted to first lieutenant.

4.  He provided an OER with an ending date of 30 September 2006 in which his rater commented the applicant was selected for promotion to captain in June 2006, but due to operational tempo the 332nd Medical Brigade commander currently had a freeze on transfers preventing his promotion.

5.  On 9 November 2007, he was promoted to captain.

6.  He provided an OER with an ending date of 11 September 2010 in which his rater commented that he was already performing with distinction at the major/O-4 level.

7.  He provided a statement from the then commander of the 936th FST, dated 27 September 2011.  The commander stated both he and the applicant were notified that the unit was identified for its second deployment and no transfers to depart the unit would be authorized per the 332nd Medical Brigade Commander's guidance.  The applicant continually requested assistance and guidance for promotion from the 75th CSH and was repeatedly told he would be promoted upon mobilization in November 2006 in accordance with the regulation covering Reserve promotions.  The FST had only one MSC position so the unit administrator could not move him to another position in order to promote him as was done in larger units.

8.  He provided a statement from the then commander of the 75th CSH assigned under the 332nd Medical Brigade, dated 20 October 2011.  The commander stated the applicant was assigned as the executive officer of the 936th FST when the unit was identified for deployment in early 2007.  At that time the brigade commander's direction was to maintain all assigned personnel in units within a year of identified deployment.  When the 936th FST was removed from the deployment schedule in January 2007, there were no vacant captain MSC positions within the 75th CSH to which he might have transferred to allow for promotion.  In November 2007, he was reassigned within the brigade to assume company command and transferred out of the 75th CSH, assumed command, was promoted, and deployed.  He stated the applicant did not receive any disciplinary, administrative, or unfavorable actions to cause the delay in his promotion to captain.

9.  In the processing of this application, an advisory opinion was obtained from HRC, dated 6 January 2011.

	a.  HRC recommended denial of his request to adjust his DOR for captain.

	b.  His maximum promotion eligibility date based on his selection for promotion by the 2005 Captain AMEDD Promotion Board was established as 3 March 2008.  In accordance with paragraph 4-9 of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) troop program unit (TPU) members must be assigned to a valid position of a higher grade in order to be promoted prior to the established maximum promotion eligibility date.

	c.  Title 10, U.S. Code, section 14304, allows the promotion to be finalized once the officer reaches his or her maximum established time in grade in lieu of an assignment.

	d.  He was assigned to a first lieutenant (medical services) position effective 21 September 2002.

	e.  He was promoted to captain with a date of rank of 9 November 2007, the date which reflects his assignment to a captain position.

	f.  He was mobilized from 17 February 2008 through 26 April 2009.

10.  On 3 February 1012, he submitted a rebuttal to the HRC opinion.

	a.  HRC did not address the issue of him not being afforded the same opportunity as his peers due to a local policy and subsequent mission changes that were out of his direct control.

	b.  In the week prior to and after convening the board, three other MSC first lieutenants within the 332nd Medical Brigade were allowed to transfer to eligible positions.  Following the release of the selection list, three first lieutenants assigned to the 75th CSH were transferred into eligible positions.  As a result, these officers received dates of rank within 30 days of the release of the board results.

	c.  At the time of the board release, he was assigned to an FST executive officer position (first lieutenant) and had served in that position for 3 years.  No other first lieutenant MSC officers were available to take the position and local command policy did not allow his transfer to a captain position based on a pending deployment in November 2006.

	d.  As he prepared for his second deployment, the transfer for promotion purposes was not an issue or concern since a December 2003 Chief of the Army Reserve policy memorandum stated that a mobilized officer who was approved for promotion may be promoted immediately to a vacant position of a higher grade in the USAR, but have a requirement to transfer within 180 days of demobilizing to either a vacant higher-graded position or to the Individual Ready Reserve (IRR).  In keeping with this policy, he would have received a November 2006 DOR to captain at the time of deployment.  The unit was then rescheduled in November 2006, delaying mobilization to the end of February 2007.  Then in January 2007 the unit was removed from the deployment schedule.

	e.  At no time were there any adverse administrative or disciplinary issues that would have prevented his promotion or eligibility for promotion.  He feels he was not afforded the same opportunities as other first lieutenants in the brigade because he was in a unit with on one MSC officer authorization and local policy prevented his transfer.  Had the unit's deployment not been delayed and policy changed, he would currently have a November 2006 DOR for captain based on unit mobilization or earlier had he been able to transfer to the vacant positions in the 75th CSH staff.

	f.  The average time in service for a USAR officer to be considered for major is 10 years from commissioning and 9 years for active duty.  Utilizing his current date of rank, he will have been commissioned in the Reserve for more than 13 years (2013) before he is eligible for consideration in the primary zone for major while his former peers were considered for major in 2011.

11.  Office of the Assistant Secretary for Manpower and Reserve Affairs memorandum, dated 14 January 2005, subject:  Promotion of Volunteers on Active Duty under the Provisions of Title 10, U.S. Code, section 12301(d), established policy for promotion of certain RC officers to the grades of captain through colonel.  This policy memorandum provides an exception to paragraph 
4-9a of Army Regulation 135-155.  A USAR officer covered by this policy memorandum who is recommended for promotion to the next higher grade by a mandatory promotion board and on an approved promotion list may be promoted immediately when matched against a vacant position of the higher grade in the Selected Reserve.  An officer promoted under this policy memorandum should be assigned to the position against which he or she was matched or appointed within 180 days after completing his or her current tour of active duty.

12.  Paragraph 4-9 of Army Regulation 135-155 states USAR TPU officers selected by a mandatory board will be promoted provided they are assigned/
attached to a position in the higher grade.  A USAR TPU officer who is selected for promotion by a mandatory promotion board, but who is not assigned/attached to a position in the higher grade will be promoted on the date of assignment/
attachment to a higher-graded position.  The DOR will be the date the officer attained maximum time in grade or the date on which assigned/attached to a position in the higher grade, whichever is earlier.

13.  Paragraph 4-9 of Army Regulation 135-155 further 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.  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.

DISCUSSION AND CONCLUSIONS:

1.  According to Army Regulation 135-155, and as stated in the HRC opinion, USAR TPU officers selected by a mandatory board will be promoted provided they are assigned/attached to a position in the higher grade.

2.  There is no evidence showing the exact date he was assigned to a vacant captain position.  However, based on the effective date of his promotion, 9 November 2007, it is reasonable to conclude that is the date of his assignment to a valid position in the higher grade.

3.  It is common practice in the RC to disapprove unscheduled personnel transfers which would degrade unit readiness from units alerted for mobilization.  Unit commanders must have the ability to manage unit personnel assets.  This is the basis of the revised policy allowing promotable mobilized RC officers to be promoted to the grades of captain through colonel against a vacant position of the higher grade in the Selected Reserve without having to be assigned to the position until as much as 180 days after completing their current tours of active duty.

4.  His  contention that he was assured by his command that he would be promoted immediately upon mobilization under the provisions of the promotion policy established by the Office of the Assistant Secretary of the Army for Manpower and Reserve Affairs, dated 14 January 2005, is not in question.  However, his unit was removed from the mobilization cycle in January 2007 and he did not, in fact, mobilize.  As a result, he was not eligible for immediate promotion under this policy.

5.  While he contends that three other MSC first lieutenants assigned to the 75th CSH were transferred to eligible positions, there is no evidence and he has not provided evidence that an additional MSC captain vacancy remained to which he could have been assigned at that time.  In addition, there is no evidence and he has not provided any evidence that an MSC captain vacancy became available within his declared geographic area (within 300 miles from Millington, TN) prior to or following the date his unit was removed from the deployment schedule.  It appears that with the assistance of his brigade commander, he ultimately accepted an assignment to a captain company commander vacancy in a medical unit in Puerto Rico scheduled to deploy.  He was promoted to captain on 9 November 2007.

6.  The applicant's maximum promotion eligibility date was 3 March 2008.  If no captain positions became available in his declared geographic area he would have been promoted effective 3 March 2008 and transferred to the IRR in accordance with Army Regulation 135-155.

7.  There is no evidence that there were available captain vacancies for which he could have been transferred to within his geographic area.  Because his unit was not deployed, the provisions of the Office of the Assistant Secretary for Manpower and Reserve Affairs memorandum did not apply in his case.  He was properly promoted when he was assigned to a captain position.  As such, there is no evidence of any error or injustice and the applicant 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 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)                                         AR20110021711



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ABCMR Record of Proceedings (cont)                                         AR20110021711



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