BOARD DATE:	3 May 2012  

		DOCKET NUMBER:  AR20120001025 


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 an adjustment of his date of rank (DOR) to colonel (COL) from 30 June 2011 to 22 December 2010. 

2.  The applicant states he was not promoted to COL on his promotion eligibility date (PED).  According to the memorandum, dated 26 February 2010, from the Office of the Deputy Chief of Staff, G-1, with regard to U.S. Army Reserve (USAR) Active Guard Reserve (AGR) promotion, in the case an officer is selected for promotion on their second or subsequent consideration and the officer's maximum time in grade (TIG) has passed, the PED is the date of appointment to the next higher grade after Senate confirmation.  He was previously not selected for promotion to COL in 2009.  According to the memorandum above, the maximum TIG for a lieutenant colonel (LTC) is 6 years. His DOR was 1 December 2004 and his PED would have been 1 December 2010.  

3.  He also states in accordance with paragraph 4-21 of Army Regulation 
135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), AGR officers selected by a mandatory board will be promoted provided that they are assigned or attached to a position in the higher grade.  An AGR officer who is selected for promotion by a mandatory board but who is not assigned or attached to a position in the higher grade will be promoted on the date of assignment or attachment to the higher graded position or the day after release from AGR status.  The DOR will be the date the officer attained maximum TIG or the date in which assigned or attached to a position in the higher grade, whichever is earlier. 
4.  He was promoted to LTC on 1 December 2004.  His PED was 1 December 2010.  Senate confirmation was on 22 December 2010.  Based on the immediate promotion of those officers who were on the same list the strength limitations that require the number of officers on hand in a grade not to exceed the number authorized for that grade was not the issue.  This injustice impacts his pay, allowances, future promotion, and retirement eligibility.  

5.  The applicant provides:

* Memorandum, dated 26 February 2010, Subject: USAR AGR Officer Promotions
* Information paper
* Memorandum, dated 10 July 2006, Office of the Assistant Secretary of the Army for Manpower and Reserve Affairs (ASA (M&RA))
* Officer Record Brief
* Senate Congressional Record

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Regular Army second lieutenant and executed an Oath of Office on 27 May 1987.  He served in a variety of stateside and/or overseas assignments and he attained the rank of captain (CPT).

2.  He was discharged from the Regular Army on 14 March 1998.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) is not available for review with this case.  

3.  He was appointed as a Reserve commissioned officer on 15 March 1998 and ordered to active duty in an AGR status on the same date.  He was promoted to major (MAJ) on 31 August 1998 and LTC on 1 December 2004. 

4.  He was considered for promotion by the 2010 Army Promotion List (APL) board which was convened on or about 8 June 2010 and released on 19 October 2010. He was selected for promotion to COL.  His chain of command confirmed his assignment to a COL position in the AGR, within the Installation Management Command (IMCOM) on 30 June 2011.

5.  On 23 June 2011, the U.S. Army Human Resources Command, Fort Knox, KY, published Orders B-06-104599 promoting him to COL with an effective date and DOR of 30 June 2011.

6.  An advisory opinion was obtained on 29 March 2012 in the processing of this case.  A USAR Command official recommended disapproval of his request to adjust the DOR.  The official stated that AGR officer promotions are based on sequence numbers.  The applicant in this case is requesting the adjustment based on maximum TIG.  There is no maximum TIG for promotion from LTC to COL.  

7.  He submitted a rebuttal in which he disagreed with the advisory opinion.  He argued that the advisory opinion is factually incorrect.  He was selected by the 2010 board and the DOR for this board is the date of assignment to a COL position.  This policy was changed in the 2011 board.  Based on the promotions from the 2011 board, if the sequence number policy had been in place in 2010, he would have pinned on COL on 22 December 2010 based on a higher sequence number from his previous DOR.  Additionally, in a memorandum dated 10 July 2006, the ASA (M&RA) increased the maximum TIG for COLs from 
5 to 6 years.  This maximum TIG established the officer's PED.

8.  Title 10, U.S. Code, section 14304 (Consideration for promotion within a specified time) states:

	a.  Section 14304(a) officers described in paragraph 3 of this section shall be placed in the promotion zone for that officer’s grade and competitive category, and shall be considered for promotion to the next higher grade by a promotion board convened under section 14101(a) of this title, far enough in advance of completing the years of service in grade specified in the following table so that, if the officer is recommended for promotion, the promotion may be effective on or before the date on which the officer will complete those years of service.  

	b.  Section 14304(b) an officer holding a permanent grade specified in the table in subsection (a) who is recommended for promotion to the next higher grade by a selection board the first time the officer is considered for promotion while in or above the promotion zone and who is placed on an approved promotion list established under section 14308(a) of this title shall (if not promoted sooner or removed from that list by the President or by reason of declination) be promoted, without regard to the existence of a vacancy, on the date on which the officer completes the maximum years of service in grade specified in subsection (a). The preceding sentence is subject to the limitations of section 12011 of this title.

9.  A memorandum issued by the ASA (M&RA) on 10 July 2006 established the convening dates for the Reserve Component APL promotion selection boards for November 2007, March 2009, and July 2010.  By July 2010, LTCs in the Reserve Components APL competitive categories will be considered with a minimum TIG of approximately 4 years and 3 months.  For LTCs selected by the Reserve Component APL selection boards convened after 2006, the maximum TIG for such officers increased from 5 to 6 years.  The maximum TIG establishes the officer's promotion eligibility date to COL.

10.  An information paper, dated 19 February 2010, Subject: USAR AGR Promotions states that subject to strength limitations of Title 10, U.S. Code, section 12011, AGR officers on a promotion list who are otherwise eligible will be promoted no later than their PED.  The PED for AGR officers is the date the officer reaches maximum TIG, the date of assignment to the higher grade, or in the case an officer is selected on their second or subsequent consideration and the officer's maximum TIG has passed, the PED is the date of appointment in the next higher grade (Senate confirmation to COL).  Unless prohibited by strength limitations, all AGR officers will be promoted at their maximum TIG without regard to assignment.  The maximum years of service in grade from first lieutenant to CPT is 5 years, from CPT to MAJ is 7 years, and from MAJ to LTC is also 7 years.  There is no maximum TIG for promotion from LTC to COL.

11.  Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve Component officers.  Table 2-1 provides for the time-in-grade requirements for promotion of commissioned officers.  It states that for promotion from LTC to COL, the minimum number of years in the lower grade is 3 years and the maximum number of years in the lower grade is announced annually by Department of the Army.  It is normally 5 years; however, it is subject to the needs of the Army (strength limitations). 

DISCUSSION AND CONCLUSIONS:

1.  The applicant was promoted to MAJ on 1 December 2004.  He was considered for promotion to COL by the 2010 APL and he was selected for promotion.  This board was approved on 4 October 2010 and released on 19 October 2010.  Senate confirmation occurred on 22 December 2010.  

2.  His chain of command confirmed his assignment to a COL position in the AGR on 30 June 2011.  Accordingly, HRC published orders promoting him to COL on that date.  There is no PED for COLs.  Based on strength limitations and the needs of the Army, the Department of the Army announces the maximum TIG for promotion to COL annually.  

3.  In view of the foregoing evidence, 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)                                         AR20120001025



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ABCMR Record of Proceedings (cont)                                         AR20120001025



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