IN THE CASE OF:	  

		BOARD DATE:	  13 August 2013

		DOCKET NUMBER:  AR20120017508 


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 her date of rank (DOR) and promotion date to lieutenant colonel (LTC) be back dated from 1 October 2009 to 16 October 2008.

2.  The applicant states her Officer Record Brief (ORB) shows her selection for LTC was above the zone.  This is an inaccurate reflection of both her abilities and her performance.

	a.  She resigned from the Army upon completion of her service obligation on 30 September 2003.  When she re-entered active duty in the rank of major (MAJ) on 25 October 2007, her adjusted DOR (ADOR) was calculated in error.  Based on her request to the Army Board for Correction of Military Records (ABCMR) on 
23 May 2008, her ADOR for MAJ was corrected by the U.S. Army Human Resources Command (HRC) to 16 October 2002.  However, because her ADOR was not initially calculated correctly she was unable to request an exception to the requirement for commissioned officer to have 1 year of continuous active duty service before the convening date of the promotion board.

	b.  Her intention was to immediately request a waiver of the 1-year requirement on the active duty list (ADL) so she could be considered by the Fiscal Year (FY) 2008, LTC, Medical Corps (MC), Promotion Selection Board (PSB) that convened on 12 February 2008.  Her break in service did not warrant the protection provided by the 1-year active duty requirement because of the qualifications she possessed as a psychiatrist who trained in the military psychiatry residency program.  

	c.  She came back in the Army with full knowledge of Army regulations guiding the practice of psychiatry in the military.  Military psychiatry, command consultation, military bearing, Army values, physical readiness, and leadership are second nature to her.  Her superior immediately placed her in leadership positions typically held by those with the rank of LTC or colonel.

	d.  During her practice as a civilian during her 4-year break in service she remained closely connected with the military through her husband who was still an active duty psychiatrist for the 82nd Airborne Division, through continuing medical education with the Department of Veterans Affairs (VA), and by providing consultative services to colleagues in the area about the nuances of working with their military patients.

	e.  She brought valuable skills learned from working with an indigent population as a child psychiatrist and advanced knowledge of the practice of telepsychiatry.

	f.  She did not know her promotion is looked at as an "above the zone" promotion until her ORB reflected it after the promotion in November or December 2009.

3.  The applicant provides:

* her ORB
* her initial request to the ABCMR, dated 23 May 2008, to correct her ADOR to MAJ
* a letter, dated 16 July 2008, from Headquarters, U.S. Army Recruiting Command (USAREC), Fort Knox, KY
* a letter, dated 19 August 2008, from the ABCMR
* an undated, unsigned statement of motivation
* her Officer Evaluation Reports (OER) for the periods ending 31 May 2003 and 30 September 2003 in the rank of MAJ and 10 October 2008, 8 April 2009, and 8 April 2010 in the rank of LTC
* a DA Form 1059 (Service School Academic Evaluation Report) for Intermediate Level Education (ILE) 1-250-ILE-CC, dated 20 April 2012
* an excerpt from Army Regulation 600-8-29 (Officer Promotions)

CONSIDERATION OF EVIDENCE:

1.  She previously served 9 years, 3 months, and 19 days in the U.S. Army Reserve (USAR).  Her primary specialty was Child Psychiatrist.  She was discharged on 30 September 2003 in the rank of MAJ with a DOR of 12 June 2000.
2.  On 25 October 2007, she was commissioned a MAJ in the USAR.  HRC Order Number 035-002, dated 4 February 2008, assigned her an ADOR of 
25 October 2004.

3.  Military Personnel Message 07-319 (FY08 LTC, MC and Dental Corps Zones of Consideration) established the zones for promotion for the FY 2008, LTC, MC, PSB convening on 12 February 2008.  The promotion zone was 1 October 2002 thru 30 September 2003.

4.  On 23 May 2008, she submitted an application to the ABCMR to correct her ADOR based on constructive credit for civilian experience.

5.  A letter, dated 16 July 2008, from USAREC corrected her entry grade credit thereby giving her a corrected ADOR of 16 October 2002.  This correction was forwarded to HRC for administrative action and the ABCMR administratively closed her case.

6.  HRC Order Number 261-016, dated 18 September 2009, promoted the applicant to LTC with an effective date and DOR of 1 October 2009.  Her ORB shows her permanent DOR for LTC is 1 October 2009.  The ORB does not show the zone of consideration for which she was selected for promotion.

7.  In the processing of this case an advisory opinion was received from HRC.  

	a.  The applicant did not meet the 1-year placement on the ADL in order to be eligible for the FY 2008, LTC, MC, PSB.  Her last placement on the ADL was 
25 October 2007 and the FY 2008, LTC, MC, PSB convened on 12 February 2008.

	b.  HRC acknowledges her ADOR was not corrected until after the convening date of the FY 2008, LTC, MC, PSB.  The applicant never submitted a waiver to the one-year ADL requirement as authorized in Army Regulation 600-8-29.

	c.  Waivers to the 1-year ADL requirement are only granted on a case-by-case basis if the Chief, Officer Promotions in coordination with the respective career branch/division determines that the officer is not placing herself in undue risk for non-selection.  

	d.  Nothing has been provided by the applicant to show that the career branch/division would have supported a subsequent waiver request.  Thus, there is no guarantee that the processor of Officer Promotions would have supported any waiver request in order to allow the applicant to compete in the FY 2008, LTC, MC, PSB.
	e.  An officer's ORB does not reflect the zone of consideration for which an officer was selected for promotion to their current grade.  Furthermore, it is common for an officer to compete in the above zone for the first time based upon call to active duty entry or similar accession programs without said consideration negatively reflecting on the officer's ability or performance.

8.  The advisory opinion was referred to the applicant for her comment; however, she has not provided a response.

9.  Army Regulation 600-8-29 prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the active duty list. 

	a.  Commissioned officers with less than 1 year of continuous active duty (since their most recent placement on the ADL) before the board convenes are not eligible for consideration by a promotion selection board.  Requests for exception to this requirement must be forwarded through the first general officer in the chain of command to Commander, HRC.  The requests must substantiate that the officer's break in service does not warrant the protection provided by the 1-year active duty requirement.  Requests for exception will be processed on a case-by-case basis. 

	b.  A Special Selection Board may be convened under Title 10, U.S. Code, section 628 to consider or reconsider commissioned or warrant officers for promotion when Headquarters, Department of the Army, discovers an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error. 

DISCUSSION AND CONCLUSIONS:

1.  If the applicant had received the correct constructive service upon her commissioning her ADOR would have been within the promotion zone for the 
FY 2008, LTC, MC, PSB.  However, she would have still needed a waiver of the 1-year requirement on the ADL to be considered for promotion.  There is no evidence she submitted a request for a waiver of this requirement or that she requested a special selection board.

2.  As of the convening date of the FY 2008, LTC, MC, PSB on 12 February 2008, the only OER's in the rank of MAJ available to the board would have been over 4 years old.  Therefore, HRC's opinion that nothing has been provided by the applicant to show that the career branch/division would have supported a subsequent waiver request is accepted as a valid reason for denying the relief requested.  There is no guarantee that the processor of Officer Promotions would have supported any waiver request in order to allow the applicant to compete in the FY 2008, LTC, MC, PSB.

3.  She was promoted to LTC with an effective date and DOR of 1 October 2009 as shown on her ORB.  An officer's ORB does not reflect the zone of consideration for which an officer was selected on for promotion to their current grade.  

4.  In view of the above there is no basis to change her effective date and DOR for promotion to LTC.

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)                                         AR20120017508



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ABCMR Record of Proceedings (cont)                                         AR20120017508



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