IN THE CASE OF:
BOARD DATE: 11 December 2012
DOCKET NUMBER: AR20120006023
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 reinstatement of his promotion to the rank of colonel.
2. The applicant states, in effect, that he was selected for promotion to the rank of colonel by the Fiscal Year 2009 Colonel Reserve Component (RC) Selection Board. However, he was denied his promotion and his name was removed from the selection list based on the Human Resources Commands interpretation of Title 10, U.S. Code, section 14317, indicating that his name appeared on the RC Selection List after he had been accessed to active duty status based on his request for Limited Call to Active Duty (LCAD). He goes on to state that his records were not transferred from the Reserve Component to the Active Component (AC) until 18 months after the board convened and the results were published. He further states that his selection for promotion to colonel was made by a duly constituted promotion selection board and he should receive the promotion he earned.
3. The applicant provides a nine-page packet explaining his application, a copy of a letter congratulating him on his promotion to colonel from his Reserve Command, and a copy of the selection list.
CONSIDERATION OF EVIDENCE:
1. The applicant was serving as a United States Army Reserve (USAR) lieutenant colonel when he volunteered to enter active duty through the Call to Active Duty (CAD) Program.
2. On 16 May 2007 orders were published by the Human Resources Command (HRC) ordering the applicant to active duty in a voluntary indefinite status with a minimum 3 years of active service obligation. He was placed on the active duty list (ADL) effective 11 June 2007.
3. On 11 March 2009 the Fiscal Year (FY) 2009 Colonel Army Promotion List (APL) convened and the applicant was selected by that board. The board was approved on 9 July 2009.
4. In March 2010, the HRC initiated action to remove the applicant from the promotion selection list based on the fact that he was on the ADL since 2007 and was erroneously considered by the FY2009 Colonel Army Promotion Selection Board when he was not on the Reserve Active Status List (RASL). The Secretary of the Army approved his removal on 23 March 2010.
5. The applicant has remained on active duty, served tours in Kuwait and Fort McPherson, Georgia and is currently serving at Fort Lee, Virginia.
6. Title 10, U.S. Code, section 14004 (Reserve Active Status List (RASL) Eligibility for Reserve Promotion) provides that except as otherwise provided by law, an officer must be on a RASL to be eligible for consideration for selection for promotion.
7. Title 10, U.S. Code, section 14317 (Effect of placement on ADL) provides that a Reserve officer who is on a promotion list as a result of selection for promotion by a mandatory promotion board convened under section 14101 (a) or a special selection board convened under section 14502 of this title and who before being promoted is placed on the ADL of the same armed force and in the same competitive category shall, under regulations prescribed by the Secretary of Defense, be placed on an appropriate promotion list for officers on the ADL established under chapter 36 of this title.
DISCUSSION AND CONCLUSIONS:
1. The applicants contentions and supporting documents have been noted and appear to lack merit. While he was selected by the FY2009 Colonel APL Selection Board, he was not eligible for consideration at the time the board convened.
2. The applicant was placed on the ADL on 11 June 2007 based on his request to enter active duty under the CAD Program and while he was not administratively transferred from the RASL to the ADL in a timely manner, the fact that he should not have been on the RASL when he was considered and selected by the selection board was sufficient to remove him from the selection list.
3. Although the applicant contends that because he was selected for promotion and because the Department failed to timely transfer him from the RASL to the ADL he should be allowed to accept the promotion, the logic behind his contention does not meet the intent of the laws and regulations governing promotion of officers.
4. It is also noted that had he been properly transferred from the RASL to the ADL in a timely manner, he would not have been considered or selected and the applicant would be in the same position he is currently in.
5. While it is certainly understandable why the applicant desires to be promoted, under the laws and regulations in effect at the time, he was not eligible for consideration or selection at the time and it would be inappropriate to grant him the relief sought as it would afford him a benefit not afforded to others in similar circumstances.
6. Although it is unfortunate that the Department did not timely transfer him from the RASL to the ADL, that in itself does not constitute a basis to circumvent the intent of the laws and regulations governing officer promotion. Accordingly, there is no basis to grant his request to be promoted to the rank of colonel.
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) AR20120006023
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ABCMR Record of Proceedings (cont) AR20120006023
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