IN THE CASE OF:	  

		BOARD DATE:  18 September 2012

		DOCKET NUMBER:  AR20120001961 


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, adjustment to his dates of rank (DOR) for captain (CPT) and major (MAJ) based on a change to the Army Reserve time-in-grade promotion policy.

2.  The applicant states he never had his DOR adjusted under the Reserve Officer Personnel Management Act (ROPMA) and with the DOR adjustment, he is looking at primary zone consideration for the Reserve lieutenant colonel board results that were released on 19 January 2012.  He contends he was under the impression that once ROPMA was enacted, his DOR would have been automatically adjusted by the U.S. Army Human Resources Command (HRC); however, he found out that the adjustment was not automatic and individuals had to request the change.

3.  The applicant provides:

* a memorandum issued by the U.S. Total Army Personnel Command, subject:  Notification of Promotion Status, dated 16 May 2000
* a memorandum to him issued by the U.S. Army Reserve Personnel Center, subject:  Promotion as a Reserve Commissioned Officer of the Army, dated 7 July 2000

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.  The applicant was appointed in the U.S. Army Reserve (USAR) as a second lieutenant (2LT), effective 15 July 1992.  He was promoted to first lieutenant (1LT), effective 14 July 1995.

3.  Based on the maximum of seven combined years of service as a 2LT and 1LT, his maximum years in grade (MYIG) for promotion to CPT was 14 July 1999.

4.  He was selected for promotion to CPT by the 1999 Reserve Components Selection Board which convened on 9 November 1999 and recessed on 
10 December 1999.  The board results were approved on 18 April 2000.

5.  He was promoted to CPT, effective 24 June 2000.

6.  During the processing of this case, on 13 March 2012, an advisory opinion was obtained from the HRC, Officer Promotions Branch.  The advisory official indicated the applicant's DOR to CPT was established by his selection as part of the fiscal year 1999 CPT Army Promotion List Promotion Selection Board and the date he overcame his Army Physical Fitness Test (APFT) flag on 24 June 2000.

7.  On 29 March 2012, a copy of the advisory opinion was provided to the applicant to afford him the opportunity to submit comments or a rebuttal.  The applicant did not respond.

8.  On 3 December 1997, the Acting Principal Deputy Assistant Secretary (Manpower and Reserve Affairs) acknowledged that pertinent Army agencies had agreed that the faulty promotion policy for promotion to CPT should be revised, and that actions would be initiated for this purpose.  He further stated that affected individuals would be advised they could seek relief from the ABCMR which could adjust DOR's for those who were first-time considered and selected for promotion to CPT after having served more than seven combined MYIG as a lieutenant.

9.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribed the policies and procedures for the promotion of Reserve officers.  This regulation specifies that a 2LT serve a MYIG of 2 years before promotion to 1LT, and a 1LT serve a MYIG of 5 years before promotion to CPT.  An officer selected for the first time for promotion to the next higher grade may be promoted on or before the date that he/she completes the maximum years of service.

10.  Army Regulation 135-155 also specifies that officers will receive mandatory promotion consideration prior to their promotion eligibility dates so that if selected, they may be promoted on their future promotion eligibility dates.  The regulation also specifies that the Secretary of the Army or his or her designee will establish the zone of consideration for each mandatory promotion board for commissioned officers.

11.  Army Regulation 135-155 also specifies that an officer's records will be screened to determine eligibility for promotion far enough in advance to permit promotion on the date promotion service is completed.  An officer recommended for promotion must meet height and weight standards of the Army Body Composition Program, pass a current APFT within the last 12 months of their promotion eligibility date (PED), have a current physical within 5 years of their PED, have a security clearance, and not be under a suspension of favorable personnel actions (flagged) per Army Regulation 600-8-2 (Suspensions of Favorable Personnel Actions).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DOR to CPT and MAJ should be adjusted under ROPMA has been carefully reviewed.

2.  Records at the HRC, Officer Promotions Branch confirm that pending the outcome of his flagging action, he was not qualified for promotion to CPT prior to 24 June 2000, the date the flagging action was removed.  He was promoted to CPT based on removal of a FLAG in accordance with pertinent regulations.  Therefore, he received the earliest promotion effective date and date of rank for CPT to which he was entitled.

3.  Absent evidence showing he was fully qualified for promotion to CPT prior to 24 June 2000, there is no basis for granting the applicant's 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)                                         AR20120001961



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ABCMR Record of Proceedings (cont)                                         AR20120001961



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