BOARD DATE: 2 July 2013
DOCKET NUMBER: AR20120019321
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 a reconsideration of his request for correction of his promotion eligibility date (PED) for promotion to the rank of lieutenant colonel (LTC) to 1 January 2006.
2. The applicant states his promotion to the rank of LTC was unjustly delayed due to an unjust officer evaluation report (OER) he received covering the period 19 August 2003 to 9 August 2004 and the delay in completing the investigation and removal of the OER from his Army Military Human Resource Record (AMHRR).
3. The applicant provides a copy of the same documents presented in the prior decisional review, decisional document, and a 1 October 2012 statement from Colonel (COL) K____.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110005028 on 18 October 2011.
2. The 1 October 2012 document is new evidence that warrants consideration by the Board.
3. The applicant was promoted to the rank of major on 1 January 2000 and he entered the U.S. Army Reserve (USAR) Active Guard Reserve (AGR) Program on 23 September 2001.
4. On 12 January 2006, the applicant was notified he was non-selected for promotion to LTC.
5. On 14 March 2007, the Officer Special Review Board directed that the contested OER be voided and declared a non-rated period.
6. On 1 June 2007, the applicant was honorably released from active duty (REFRAD) due to non-selection for permanent promotion. He was transferred to the USAR Control Group (Reinforcement).
7. On 21 May 2009, the applicant was notified he had been selected for promotion to LTC by a special selection board (SSB) that selected him under the 2006 LTC criteria. Officials further notified him that his PED would be the date he made major plus 7 years unless he could provide documentation verifying assignment to an LTC or higher position for the period 8 December 2006 to
1 January 2007.
8. On 20 October 2009, orders were published by the U.S. Army Human Resources Command (HRC) promoting the applicant to the rank of LTC effective 2 June 2007, the day after he was REFRAD and transferred to the Individual Ready Reserve (IRR).
9. On 18 October 2011, the ABCMR denied the applicant's request for an earlier PED.
10. COL K____ (retired) submitted a statement indicating he was serving as the Deputy Chief of Staff during the period of the applicant's contested OER. During the period November 2005 through March 2008 the applicant worked in the capacity of an LTC as the Senior Training Officer. He recommended the applicant be given a promotion date to LTC of the earliest practical date of "January of 2006."
11. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), provides, in pertinent part, that a unit officer will have a promotion date and effective date no earlier than the date the board is approved, provided he or she is assigned to a position in a higher grade. When the approval date is before assignment to the higher grade, the effective date and date of promotion will be the assignment date.
12. Title 10, U.S. Code, section 14304, provides the legal authority for eligibility for consideration for promotion based on maximum years in grade (MYIG) provisions of the law. Paragraph (a) states, in pertinent part, that officers shall be placed in the promotion zone and shall be considered for promotion to the next higher grade by a promotion board convened under section 14101(a) of this title, far enough in advance of completing the MYIG so that, if the officer is recommended for promotion, the promotion may be effective on or before the date on which the officer will complete those years of service. If the officer occupies a position equal to or higher than the grade to which they are being promoted, they may be promoted before they reach their MYIG. This provision of the law establishes the MYIG for MAJ going to LTC as 7 years.
DISCUSSION AND CONCLUSIONS:
1. The only new document provided by the applicant is the statement from the now-retired COL K____. This document provides an unconfirmed statement that the applicant served in an LTC position.
2. This statement in-and-of itself without documentary corroboration is insufficient to show the applicant served in an official position warranting an earlier PED.
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 to amend the decision of the ABCMR set forth in Docket Number AR20110005028, dated 18 October 2011.
___________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) AR20120019321
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ABCMR Record of Proceedings (cont) AR20120019321
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