IN THE CASE OF:	  

		BOARD DATE:	    6 August 2013

		DOCKET NUMBER:  AR20120015732 


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 records to show he was promoted from first lieutenant (1LT) to captain (CPT) retroactive to 3 September 2008 with back pay and allowances.

2.  He states:

* he received a Department of the Army (DA) Certificate of Promotion to CPT on 3 September 2008
* he hasn't been awarded the rank of CPT or received any compensation with this rank from 3 September 2008 to the present date

3.  He provides:

* corrected memorandum from the U.S. Army Human Resources Command (HRC), dated 26 September 2008, subject:  Appointment as a Reserve Commissioned Officer of the Army under Title 10, U.S. Code, Sections 12201 and 12203
* letter from the U.S. Total Army Personnel Command, dated 13 May 2009
* self-authored statement
* three letters
* two affidavits
* promotion certificate



COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel states she believes the applicant's civil and human rights have been seriously threatened and grossly violated by the U.S. Army for the following reasons:

	a.  The applicant has been wronged, verbally assaulted, and abused by commanding officers which greatly affected his overall performance after he filed an administrative complaint on 4 May 2010 pertaining to the matters of his "Written Agreement Affiliation Bonus and Officer Promotion."

	b.  The applicant has been denied his promotion due to the U.S. Army's "refusal to transfer the promotion retention."

	c.  The applicant has shown good cause for retention on the promotion list in light of the adverse actions (i.e., flags) by his unethical commander officers.

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.  After prior enlisted service in the U.S. Army Reserve (USAR), the applicant was appointed as a Reserve commissioned officer in the rank of second lieutenant on 29 July 2005.  He was ordered to active duty on 26 September 2005.  He was appointed as a Regular Army officer on an unknown date.  

3.  He was promoted to 1LT on 26 March 2007.

4.  He was considered for promotion by the Fiscal Year (FY) 2008 CPT, Army Competitive Category, Selection Board and was selected for promotion.  His sequence number was "4160."  The promotion board results were approved on 31 January 2008 and released on 14 February 2008.
5.  He provided a certificate, dated 3 September 2008, announcing his appointment as a Reserve CPT in the U.S. Army effective 27 September 2008.

6.  He was discharged from active duty on 26 September 2008.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) for this period shows his rank as 1LT with an effective date of pay grade as 26 March 2007.

7.  On 27 September 2008, he executed a DA Form 71 (Oath of Office – Military Personnel) which appointed him as a Reserve commissioned officer in the rank of 1LT.  He was assigned to a Troop Program Unit.

8.  A letter from the U.S. Total Army Personnel Command Office of Promotions, Reserve Components (RC), dated 13 May 2009, informed him that his recommendation for promotion while serving on the Active Duty List had been verified and his promotion eligibility date (PED) to CPT was 25 March 2012.

9.  A review of his personnel records in the Integrated Web Services (IWS) Transaction History section revealed entries, dated 13 May 2009, indicating his promotion to CPT was placed "ON HOLD DUE TO '02' AFPT [sic] (Army Physical Fitness Test (APFT)) SKIP CODE" and he was not in a higher-graded position.

10.  A flagging action was initiated against the applicant on 17 May 2009.  His DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) shows his promotion was suspended under the provisions of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) and DA policy.  His service record is void of evidence indicating the flagging action was removed.

11.  On 3 November 2009, he was considered for promotion to CPT by a DA RC Mandatory Selection Board, but was not selected.

12.  Headquarters, USAR Command, Fort Bragg, NC, Orders 11-292-00014, dated 19 October 2011, honorably discharged him from the USAR effective 1 November 2011.  The additional instructions stated he was a twice non-select for promotion to CPT.

13.  A memorandum from the Chief, Officer Promotions, Special Actions, HRC, dated 1 November 2011, stated the applicant's request to change his date of rank (DOR) to CPT could not be approved at that time.

14.  A letter from this Board, dated 17 January 2012, notified the applicant he had not exhausted all administrative remedies available to him.  On 3 November 2011 in response to a request for an advisory opinion from HRC, he was advised that his record would be referred to the Promotion Review Board for review.  As a result, his case was returned without action by the Board.

15.  On 10 April 2012, an advisory opinion was obtained from the Chief, Officer Promotions Branch, HRC, who opined:

	a.  The applicant's request for adjustment of his DOR to CPT to 3 September 2008 and receipt of retroactive pay from that date forward is totally without merit.

	b.  Although the applicant was selected for promotion to CPT by the FY08 CPT Army Promotion Selection Board, his promotion sequence number (4160) was not authorized for promotion until 1 November 2008 (i.e., numbers 3919 through 4341).  By that date, the applicant had already separated from the Active Component (AC) on 26 September 2008 and transferred to the RC effective 27 September 2008.

	c.  The DD Form 1A (Commissioned Officer Promotion Certificate) promoting the applicant to CPT effective 3 September 2008 is either fraudulent or an administrative error by his former installation prior to his selection from the AC.  The aforementioned promotion certificate was not based on any actual order as authorized by this office for the applicant and thus has no standing.

	d.  A comprehensive review revealed that the applicant should have retained his promotion standing when he transferred from the AC to the RC without a break in service in accordance with Title 10, U.S. Code, section 14317.  However, the applicant was not eligible for promotion while in the RC until either reaching his maximum PED of 25 March 2012 or being assigned to an authorized CPT or higher-graded position in his RC as established by Army Regulation 135-155, paragraph 4-9.

	e.  Since the applicant was flagged for APFT failure on 17 May 2009, he was not eligible for promotion until removal of the flag as established by Army Regulation 135-155, paragraph 4-11.  The applicant's RC promotion orders to CPT will be published upon receipt of the required DA Form 268 removing the flag and an AHRC Form 56-R (Promotion Qualification Statement) showing he is assigned to an authorized CPT or higher-graded position.

	f.  As a result, both the applicant's two-time non-selection status to CPT based on the FY10 and FY11 RC Army Promotion List Promotion Selection Boards and subsequent mandatory separation orders based on this erroneous non-selection status should be rescinded and the applicant should be further retained in the RC.
16.  The advisory official noted the applicant received four consecutive derogatory officer evaluation reports while serving in the RC during the period 27 September 2008 to 31 August 2011.  One derogatory referred report from the AC for the period 20 April 2007 to 19 April 2008 was filed in his permanent file.  Based on knowledge of the said documents, the HRC Officer Promotions Branch will initiate Promotion Review Board Proceedings in accordance with Army Regulation 135-155, paragraph 3-18, to determine if the applicant should further retain his promotable status.  In addition, upon this same derogatory activity, a probable elimination action will be initiated against the applicant by his Career Management Branch in the near future to determine if he should continue to serve as an officer in the U.S. Army.

17.  A memorandum from the Chief, Officer Promotions Special Actions, HRC, dated 2 July 2012, states:

	a.  As of 19 June 2012, the applicant was formally notified that his records would be referred to a Promotion Review Board via Army Knowledge Online and his alternate email address per request.

	b.  He was aware that he had until 3 August 2012 to submit comments, information, and any letters of endorsement to the President of the Promotion Review Board attesting to why he should be retained on the promotion list.

	c.  The entire process might take up to a year before the board's results are approved for release by the appropriate signature authority as noted in his notification.

18.  He provided a letter addressed to the Promotion Review Board, dated 13 July 2012, in which he stated:

	a.  He served as an officer in the greatest Army ever assembled and he deployed to Operation Iraqi Freedom.

	b.  He served his country proudly and adhered to the Army Values, but he felt his unit and the people who handle promotions failed him and didn't follow the values that are so sacred in the Army.

	c.  He has proven time and time again that he was initially promoted during his active service.  He sent copies of his promotion certificate to the HRC Promotions Branch and discussed this matter in depth with the Inspector General's (IG) office.  The outcome of his discussions and the IG's inquiry were in his favor.

19.  He provided a letter of support from an attorney who stated he believes the applicant has earned the promotion and it is fitting that he receives it.  The attorney stated he has known the applicant for the last 13 years and knows the applicant strongly desires to serve his country.

20.  He provided an affidavit attesting, in part, that he was told by the Battalion Commander at the 472nd Chemical Battalion on 2 October 2010 that he would never get his:  (1) bonus or (2) promotion and (3) was recommended for an honorable discharge or discharge under other than honorable conditions because a complaint was filed with the IG.

21.  Orders 13-066-00001, dated 7 March 2013, published by Headquarters, 88th Regional Support Command, Fort McCoy, WI, reassigned him to the USAR Control Group (Reinforcement) effective 15 March 2013 for cogent personal reasons.

22.  A review of his personnel records in the HRC-IWS revealed on 21 June 2013 that he had been removed from the FY08 CPT Army Promotion List by the Secretary of the Army on 13 June 2013 and the Reserve Database Management System was updated to reflect his one-time passover.

23.  Army Regulation 135-155 prescribes the policies and procedures for the promotion of RC officers.

	a.  Paragraph 2-5 (Eligibility for Consideration) states to be eligible for consideration for promotion to the next higher grade, a USAR officer must have continuously performed service on either the Reserve Active Status List or the Active Duty List (or a combination of both lists) during the 1-year period ending on the convening date of the promotion board and must meet the time in grade requirements in table 2-1 or 2-3, as appropriate.  

	b.  Table 2-1 (Time in Grade Requirements) states for promotion from 1LT to CPT, the minimum time in grade requirement is 2 years and the maximum time in grade requirement is 5 years.

24.  Title 10, U.S. Code, section 14317(c), provides that an officer who is on the active-duty list and is on a promotion list and who, before being promoted is removed from the active-duty list and placed on the reserve active-status list of the same armed force and in the same competitive category, shall be placed on an appropriate promotion list.   


DISCUSSION AND CONCLUSIONS:

1.  While in the Regular Army, the applicant was selected for promotion to CPT.  Before he could be promoted, he was discharged and accepted a USAR appointment on 27 September 2008.

2.  He was appointed in the USAR as a 1LT on 27 September 2008 with a DOR of 26 March 2007.  He was no longer a Regular Army officer so he now fell under USAR promotion criteria (i.e., 5-years time in grade).  His PED for promotion to CPT would have been 25 March 2012.  

3.  Promotion prior to his PED would have required him to occupy a position in the higher grade.  However, his service record is void of evidence which indicates he was assigned to a valid higher position.

4.  The HRC-IWS further shows his promotion was suspended because of AFPT failure in addition to not being in a higher-graded position.

5.  He provided a certificate, dated 3 September 2008, which indicates he was appointed as a Reserve CPT on 27 September 2008.  However, this certificate promoting him to CPT effective 27 September 2008 is at best an administrative error because it is not based on any actual orders authorized by that office.

6.  The HRC advisory opinion stated:

	a.  His sequence number of "4160" for promotion to CPT wasn't authorized until 1 November 2008, but he was separated from the AC on 26 September 2008 and transferred to the RC on 27 September 2008.

	b.  He should have maintained his promotion standing when he transferred from AC to RC; however, he wasn't eligible for promotion until either reaching his maximum PED (25 March 2012) or until being assigned to an authorized CPT or higher-graded position.

	c.  He was flagged for APFT failure on 17 May 2009; therefore, he wasn't eligible for promotion until removal of the flag.

7.  By law, he would not have received the same DOR he would have received had he remained on the Active Duty List.  He was properly placed on the appropriate, i.e., reserve active-status list, promotion list; i.e., a USAR promotion list.

8.  In the absence of sufficient evidence to show an error or injustice exists in this case, there is no basis for granting the applicant's request.

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)                                         AR20120015732



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ABCMR Record of Proceedings (cont)                                         AR20120015732



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