IN THE CASE OF:	   

		BOARD DATE:	  15 November 2012

		DOCKET NUMBER:  AR20120007083 


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:

* the "1994" (i.e., 1996) nonselection letter be removed from his Army Military Human Resource Record (AMHRR)
* his date of rank (DOR) to captain (CPT) be restored to 1996
* his DOR to major (MAJ) be adjusted
* he be promoted to lieutenant colonel (LTC)
* any non-mandatory education requirements such as the Command and General Staff Officers Course (CGSOC) be waived for promotion to LTC, if necessary

2.  The applicant states:

	a.  He was passed over for promotion [to CPT] by a mandatory board that met in 1994.  He filed an appeal and he won.  However, the appeal process took almost 3 years to be returned.  He sat on a second board and was promoted to CPT in 1998 when those results came back.  When his appeal came back in 1999, it showed his DOR for that board was 1996.  He went through his chain of command and was told there was nothing that could be done.  Later that year he met with the State G-1 and was told for him to have been promoted immediately they would have had to have a vacancy available on the date the results came back [in 1999].  They refused to change his DOR even after he noted that officers on the 1994 board had been promoted before him.

	b.  The letter showing he won his appeal was not put into his records until 2000, but the letter for his first nonselection was never removed.  When he was mobilized for Iraq in 2005, he noticed his records did not contain the appeal letter and the nonselection letter was still there.  It was finally loaded in March 2012, but the Tennessee Army National Guard (TNARNG) has not acted to remove the nonselection letter or correct his DOR.  As the TNARNG did not use his first board and based his promotion on the second board, all his peers from officer candidate school (OCS) have been promoted to LTC while he was not even eligible to be boarded.  He believes this is an injustice and he should be "made whole" by having his DOR to CPT be restored to 1996, adjusting his DOR to MAJ, and promoting him to LTC with the waiver of any non-mandatory education requirements. 

3.  The applicant provides his DA Form 4037 (Officer Record Brief (ORB)) and a memorandum.

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant's records show he was appointed as an Armor second lieutenant in the TNARNG and executed an oath of office on 24 June 1989.  He attained the rank of first lieutenant (1LT) on 24 June 1992.  Based on the required 4 years time in grade (TIG) at the time, his promotion eligibility date (PED) for CPT was 23 June 1996.

2.  He attended and successfully completed the Armor Officer Advanced Course from 16 November 1993 to 2 March 1994 at Fort Knox, KY. 

3.  He was considered and not selected for promotion to CPT by the 1996 Fiscal Year (FY) Reserve Components Selection Board (RCSB) that convened on 14 November and recessed on 15 December 1995.  The board results were released on 21 March 1996.

4.  His records contain a memorandum, dated 1 March 1996, issued by the U.S. Total Army Personnel Command, wherein it stated he was considered but not selected for promotion to the next higher grade by the RCSB.

5.  He was considered and selected for promotion to CPT by the 1996 Calendar Year (CY) RCSB that convened on 12 November and recessed on 27 November 1996.  The board results were approved on 12 June 1998 (delayed board). 

6.  His records contain a memorandum, dated 7 May 1998, issued by the U.S. Total Army Personnel Command that stated he was selected for promotion to the next higher grade by the CY 1996 RCSB.  
7.  Orders Number 189-87, dated 30 September 1998, issued by the TNARNG assigned him to an O-3 position of commander and promoted him to CPT with an effective date of 30 September 1998.

8.  Special Orders Number 191 AR, dated 27 October 1998, issued by the National Guard Bureau (NGB), extended him Federal recognition for the purpose of promotion to CPT with a DOR and effective date of 27 October 1998.  

9.  A memorandum, dated 30 June 1999, issued by the U.S. Total Army Personnel Command, stated the Standby Advisory Board (STAB) that convened on 8 October 1998 selected him for promotion [to CPT] under the 1996 FY year criteria.  This letter stated he would be issued a promotion letter with a DOR of 22 February 1996.

10.  There is no evidence he was assigned to a higher-graded position on or before 22 February 1996 or 30 September 1998 for an earlier date for promotion to CPT.

11.  Based on the required 7 years TIG, his PED for MAJ was 27 October 2005.

12.  A memorandum, dated 28 June 2005, issued by the U.S. Army Human Resources Command (HRC) stated he was considered and selected for promotion to MAJ by the selection board that adjourned on 26 October 2005.

13.  Orders Number 252-342, dated 9 September 2005, issued by the TNARNG promoted him to the rank of MAJ effective 9 September 2005 and stated he would not be paid as a MAJ until Federal Recognition was confirmed.

14.  Special Orders Number 278 AR, dated 29 September 2005, issued by the NGB, extended him Federal recognition for the purpose of promotion to MAJ with a DOR and effective date of 29 September 2005.  Based on the required 7 years TIG, his PED for LTC was 29 September 2012.

15.  A letter, dated 9 February 2012, issued by the TNARNG, informed him he was not selected for promotion [to LTC] by the 2011 RCSB and it was his first nonselection.  This letter also stated he would be considered for promotion by the next board.  If he was selected for promotion by that board, he would be eligible for promotion if a vacancy was available and if he was otherwise promotable.

16.  The applicant did not provide any evidence that shows he has completed 50 percent of the CGSOC or any justification as to why any non-mandatory military education requirements for promotion to LTC should be waived.

17.  The Reserve Officer Personnel Management Act (ROPMA), a public law enacted by Congress on 5 October 1994, prescribes the policies and procedures to consolidate and modernize the laws that govern Reserve Component officers. The law was implemented on 1 October 1996.  ROPMA specifies that a first lieutenant is eligible for promotion to CPT upon completion of 5 years TIG.  Promotion policy prior to the implementation of ROPMA, specified that promotion to captain required completion of 4 years TIG.

18.  Under ROPMA the earliest promotion effective date an officer can have would be the approval date of the original board in which the error occurred.  Unit officers selected by a promotion board will have a promotion effective date no earlier than the approval date of the board, provided they are assigned to a position in the next higher grade.  When the board approval date is prior to assignment to the position in a higher grade, the promotion effective date of promotion will be the date of assignment to a higher-grade position. (emphasis added)

19.  Title 10, U.S. Code, section 1211 (Officers – ARNG of the United States), states when an officer of the ARNG to whom temporary Federal recognition has been extended is appointed as a Reserve for service as a member of the ARNG of the United States, his/her appointment shall bear the date of the temporary recognition and shall be considered to have been accepted and effective on that date.  Section 14308(f) states the effective date of a promotion of a Reserve officer of the Army who is extended Federal recognition in the next higher grade in the ARNG shall be the date on which such Federal recognition in that grade is so extended.

20.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that:

	a.  Officers selected by a special selection board (previously, STABs) are eligible for the same date of rank that they would have received by the original board in which the error occurred.  

	b.  Reserve officers selected by a mandatory board will be promoted provided they are assigned or attached to a position in the higher grade.  A Reserve officer who is selected for promotion by a mandatory promotion board, but who is not assigned/attached to a higher-graded position, will be promoted on the date of assignment/attachment to a higher-graded position.  The DOR will be the date the officer attained the maximum time in grade or the date on which assigned/attached to a position in the higher grade, whichever is earlier.  The effective date of promotion cannot be prior to approval of the respective board. 
	c.  Fifty percent completion of the CGSOC is required for promotion to LTC on or before the convening date of the respective board.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his 1996 nonselection memorandum should be removed from his AMHRR, his DOR to CPT should be adjusted to 1996, his DOR to MAJ should be adjusted, and he should be promoted to LTC with the waiver of any non-mandatory education requirements.

2.  The evidence of record confirms the applicant was considered and not selected for promotion to CPT by the 1996 FY RCSB.  Based on the applicant's subsequent selection for promotion to CPT by a STAB under the 1996 FY criteria, he is entitled to the deletion of his name from the 1996 FY RCSB nonselection results.  Therefore, it would be appropriate to remove the nonselection memorandum, dated 1 March 1996, from his AMHRR.  

3.  The evidence of records confirms he was considered and selected for promotion to CPT by the 1996 CY board.  He was assigned to a CPT's position on 30 September 1998 and extended Federal recognition and promoted to CPT with a DOR and effective date of 27 October 1998.  

4.  He was considered and selected for promotion to CPT by a STAB under the 1996 FY criteria with a PED of 22 February 1996.  The board results were approved on 12 June 1998 and he was notified of his selection on 30 June 1999.  He was not eligible for the promotion with a DOR of 22 February 1996 as he was not assigned to a higher-graded position prior to that date and the board approval date was not until 12 June 1998.  His first eligible date of promotion to CPT was 27 October 1998, based on his assignment to an O-3 position on 30 September 1998 and his extension of Federal recognition on 27 October 1998.  

5.  It appears the applicant waited until 2005 to question his CPT DOR.  There is insufficient evidence 9 - 16 years after the fact that a CPT position would have been available for him in 1996.

6.  Based on his DOR to CPT of 27 October 1998, his PED for promotion to MAJ was 27 October 2005.  He was eligible for promotion with a DOR on the date he attained the maximum TIG or the date on which he was assigned to a higher graded position, whichever was earlier.  The evidence of record shows he was considered and selected for promotion to MAJ by the 2005 RCSB.  He was appropriately promoted to MAJ with a DOR of 29 September 2005.  

7.  In addition, based on his DOR to MAJ of 29 September 2005, his PED for promotion to LTC was 29 September 2012.  He was considered and not selected for promotion to LTC by the 2012 RCSB.  He will be considered for promotion by the next RCSB.  The applicant has not provided any evidence that supports his contention that he should be promoted to LTC with the waiver of any non-mandatory education requirements.

8.  In view of the foregoing, he is not entitled to the adjustment of his DOR to CPT or MAJ, or promotion to LTC with the waiver of any non-mandatory education requirements.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ___x____  ___x_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing the nonselection memorandum, dated 1 March 1996, from his AMHRR.  

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the adjustment of his DOR to CPT, adjustment of his DOR to MAJ, and promotion to LTC with the waiver of any non-mandatory education requirements.



      _______ _   _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)                                         AR20120007083





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ABCMR Record of Proceedings (cont)                                         AR20120007083



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