IN THE CASE OF:	  

		BOARD DATE:	    17 January 2013

		DOCKET NUMBER:  AR20120011935 


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 correction of his date of rank (DOR) and effective date for promotion to major (MAJ)/pay grade O-4 from 27 April 2011 to 1 May 2010 with all back pay and allowances due as a result of the correction.

 2.  The applicant states he was selected for promotion by the Fiscal Year 2010 (FY10) MAJ Reserve Components (RC) Department of the Army Medical Department (AMEDD) Promotion Board in May 2010.

	a.  He transferred to a unit that had an authorized MAJ/O-4 position in area of concentration (AOC) 70K (Health Services, Materiel) for which he was qualified and also received promotion orders.

	b.  Shortly thereafter he was transferred to another unit.  His promotion orders were revoked allegedly due to not being in a valid position when the promotion orders were issued.

	c.  He acknowledges that he didn't stay in the unit that promoted him for a very long time.  However, he asserts there is no time requirement to serve in the position once promoted.

3.  The applicant provides copies of the following documents:

* FY10 MAJ RC AMEDD Selection Board Results (page 9 of 12)
* Promotion Qualification Statement
* Unit Explorer Position List
* promotion and revocation orders
* two transfer orders

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior honorable enlisted service in the Regular Army and U.S. Army Reserve (USAR) from 15 April 1981 through 21 September 1987.
He attained the rank of sergeant/pay grade E-5.

2.  He had a break in military service from 22 September 1987 to 28 May 1996.

3.  The applicant enlisted in the USAR on 29 May 1996.  He was appointed as a Reserve commissioned officer of the Army in the rank of second lieutenant/pay grade O-1 in the Medical Service Corps on 14 December 1997.

4.  He was promoted to captain/pay grade O-3 effective 28 April 2004.

5.  U.S. Army Human Resources Command (AHRC), St. Louis, MO, 
Orders B-05-002737, dated 12 May 2010, promoted the applicant to MAJ/O-4 effective and with a DOR of 1 May 2010.

6.  AHRC, St. Louis, MO, Orders B-05-002737R, dated 24 May 2010, revoked the orders promoting the applicant to MAJ/O-4.

7.  AHRC, St. Louis, MO, Orders B-04-102851, dated 26 April 2011, promoted the applicant to MAJ/O-4 effective and with a DOR of 27 April 2011.  The additional instructions show, "Officer promoted upon reaching maximum time in grade and must be assigned to higher grade position in accordance with Army Regulation 135-155, paragraph 4-9."

8.  On 17 November 2011, the applicant was notified of his eligibility for retired pay at age 60.

9.  The applicant provides the following documents in support of his application.

	a.  Page 9 of the FY10 MAJ RC AMEDD Selection Board Results released on 4 May 2010 lists the applicant's name.

	b.  AHRC Form 56-R (Promotion Qualification Statement) shows the applicant's primary AOC as 70F (Health Services, Human Resources).  It also shows he was assigned to an O-4 authorized position (unit identification code (UIC) W859AA) in duty AOC 70K, paragraph/line number 007/01, and position number 0170, on 1 May 2010.  Section III (Review by Officer's Immediate Commander) shows the form was signed by Master Sergeant M____ K____ on 11 May 2010.

	c.  Unit Explorer Search Panel for UIC W859AA, undated, shows First Lieutenant A____ C____ S____ was assigned to the authorized O-4 position (UIC W859AA, paragraph/line number 007/01, position number 0170).

	d.  Headquarters, Southeast Medical Area Support Group, Nashville, TN, Orders 10-130-00004, dated 10 May 2010, reassigned the applicant from the 7201st Medical Support Unit (UIC W8EAAA), Gainesville, FL, to the Southeast Medical Area Support Group (UIC W859AA), Nashville, TN, effective 1 May 2010.

	e.  Headquarters, Southeast Medical Area Support Group, Nashville, TN, Orders 10-132-00002, dated 12 May 2010, reassigned the applicant from the Southeast Medical Area Support Group (UIC W859AA), Nashville, TN, to the 7201st Medical Support Unit (UIC W8EAAA), Gainesville, FL, effective 12 May 2010.

10.  In the processing of this case, an advisory opinion was obtained from the Chief, Officer Promotions Branch, AHRC, Fort Knox, KY.

	a.  The advisory official recommends disapproval of the applicant's request for adjustment of the date of his promotion to MAJ.  The applicant failed to properly address his status as a military technician.

	b.  The applicant's promotion to MAJ/O-4 with a DOR of 1 May 2010 was effectively revoked on 24 May 2010 based upon the command's request and existing regulatory requirements.

	c.  In accordance with Army Regulation 140-315 (Employment and Utilization of U.S. Army Reserve Military Technicians), military technicians must be assigned to a specific position which supports both their military and technician status.  Appendix B requires that for a military promotion to the next higher grade to occur, the officer must transfer to a unit that has the higher authorized military/technician assignment.  If no higher position is available, the officer cannot be subsequently promoted since promotions are position based.

	d.  The applicant was originally transferred to a higher MAJ/O-4 position by an erroneous AHRC Form 56-R that was not authorized dual civilian-military status assignments merely for reason of promoting the officer to the higher rank.

	e.  Upon receipt of notification from the Army Reserve Medical Command (ARMEDCOM) G-1 regarding the erroneous AHRC Form 56-R and an earlier request on 21 May 2010 for revocation of the applicant's promotion to MAJ/O-4, the promotion was subsequently officially revoked.

	f.  The advisory official offers that the applicant's promotion would have remained unchanged if he had resigned his military technician status or if he had found a higher military technician assignment; his promotion would have been on the effective date of assignment to the new position.

11.  On 28 August 2012, the applicant was provided a copy of the advisory opinion to allow him the opportunity to submit comments or a rebuttal.  The applicant provided a response on 18 September 2012.  He stated the AHRC Form 56-R submitted to the ARMEDCOM regarding his promotion was not erroneous.  He adds he met all the qualifications for promotion and he was assigned to an authorized position to be promoted.  There was no violation of Army regulations and any issue concerning his military technician status should have been addressed through the Civilian Personnel Office.  He requests approval of his application for correction of his records.

12.  Army Regulation 140-315 establishes policies and prescribes procedures for the employment, utilization, and separation of military technicians by the USAR.  Paragraph 8 provides that military and civilian assignments will be as closely paralleled as possible.  Attainment of military rank higher than authorized for the unit justifies lateral reassignment to a compatible civilian/military technician position.  Commanders at all levels will make reassignments to achieve this objective to the maximum extent practical.

	a.  Appendix B (Memorandum of Understanding) sets forth the points that constitute the basis upon which formal agreement to the current Army Reserve Technician Program was obtained from the Civil Service Commission.  The agreement is effective 1 September 1970.

	b.  Point B6 provides that promotion to military Reserve rank higher than that authorized for the military position will not be a basis for removal of an employee from his civilian technician position.  However, attainment of military rank higher than that authorized for the unit to which assigned constitutes a basis for transfer to an appropriate civilian military assignment where the mobilization status of the technician can be maintained.

13.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the Army National Guard of the United States and of commissioned and warrant officers of the U.S. Army Reserve.  Chapter 4 (Processing Selection Board Recommendations), paragraph 4-21, provides that promotion of unit officers selected by a mandatory board will have a promotion date and effective date no earlier than the date the board is approved, provided they are assigned to a position in the higher grade.  When the board approval is before assignment to the position in the higher grade, the effective date and the date of promotion will be the date of assignment to the higher-graded position.

DISCUSSION AND CONCLUSIONS:

1.  Records show the applicant was selected for promotion to MAJ/O-4 by a Department of the Army Promotion Board, the results of which were released on 4 May 2010.

2.  On 10 May 2010, orders were issued reassigning the applicant to the Southeast Medical Area Support Group, Nashville, TN, effective 1 May 2010.

3.  The Promotion Qualification Statement shows the applicant's assignment to an O-4 authorized position in duty AOC 70K was authenticated on 11 May 2010.

4.  On 12 May 2010, orders were issued reassigning the applicant back to the 7201st Medical Support Unit, Gainesville, FL, effective 12 May 2010.

5.  On 12 May 2010, orders were also issued promoting the applicant to MAJ/O-4 effective and with a DOR of 1 May 2010.  Orders were subsequently issued on 24 May 2010 revoking the orders promoting him to MAJ/O-4.

6.  The evidence of record shows the applicant's promotion to MAJ/O-4 with a DOR of 1 May 2010 was revoked on 24 May 2010 based on the command's request regarding the erroneous AHRC Form 56-R that was not properly authorized and existing regulatory requirements.

7.  The governing regulations provide that promotion will be accomplished when an appropriate position vacancy in the grade exists in the unit and the Soldier is assigned to the higher-graded position where the mobilization status of the technician can be maintained.  The evidence of record clearly shows the applicant did not remain assigned to the higher-graded position where his mobilization status could be maintained.

8.  The applicant was subsequently promoted to MAJ/O-4 on 27 April 2011.

9.  Based on the foregoing evidence, there is an insufficient basis to grant 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 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)                                         AR20120011935



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ABCMR Record of Proceedings (cont)                                         AR20120011935



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