BOARD DATE:	  16 April 2013

		DOCKET NUMBER:  AR20130000274 


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 reconsideration of his request to adjust his lieutenant colonel (LTC) date of rank (DOR) to 1 August 2010.

2.  The applicant states, in effect, that while the Army contends that it cannot change his DOR they already have changed it from 1 July 2007 to 27 November 2007.  He goes on to state that it is illogical and unreasonable for the Army to conclude that Title 10, U.S. Code (10 USC), section 741(d)(3) does not extend to him in his position after already having changed his DOR.  He also states he was informed at the time he transferred to the Army from the U.S. Marine Corps Reserve (USMCR) that he would receive a DOR that was effective the date he was sworn in, which was 1 August 2010.  Accordingly, he is entitled to receive a DOR to reflect his qualifications and experience as provided for in 10 USC, section 741(d)(3). 

3.  The applicant provides a two-page letter explaining his application, two third party letters of support, copies of his USMCR fitness reports, a copy of his Officer Record Brief (ORB), a copy of his orders to active duty, and copies of email traffic.

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 AR20110012019, on 10 January 2012.
2.  On 3 September 2009 a memorandum was dispatched from the U.S. Army Human Resources Command (HRC) in St. Louis, Missouri informing the applicant that he was appointed as a U.S. Army Reserve (USAR) infantry LTC effective upon his acceptance.  It also stated that his pay entry basic date (PEBD) and DOR would remain the same.

3.  On 4 June 2010, orders were published by HRC, St. Louis, Missouri ordering the applicant to active duty in the rank of LTC on 1 August 2010 with a DOR of 
1 August 2010.  The orders specified that adjustments would be made to the pay entry basic date (PEBD) and DOR and that The Adjutant General Division (TAGD) Promotions Branch was the point of contact for DOR computations.

4.  On 13 May 2011, the applicant was informed that his DOR had been adjusted to 27 November 2007 based on a recalculation of his service time as an LTC.  The applicant was originally promoted to the rank of LTC in the USMCR on 
1 July 2007.

5.  During the original review of his application a staff advisory opinion was obtained from the HRC proponent for DOR adjustments which determined that relief was not possible without violating Federal law.

6.  The two-third party statements provided by the applicant with his application serve to describe the disadvantage suffered by the applicant in terms of promotion competitiveness to the rank of colonel with his current DOR.  Both contend that his DOR should be adjusted to the date he entered the Regular Army.

7.  10 USC 741 contains guidance on rank of commissioned officers of the armed forces.  Paragraph d(3) states under regulations prescribed by the Secretary of Defense, which shall apply uniformly among the Army, Navy, Air Force, and Marine Corps, the date of rank of a reserve commissioned officer (other than a warrant officer) of the Army, Navy, Air Force, or Marine Corps who is to be placed on the active-duty list and who has not been on continuous active duty since his original appointment as a reserve commissioned officer in a grade above chief warrant officer, W-5, or who is transferred from an inactive status to an active status and placed on the active-duty list or the reserve active-status list may, effective on the date on which he is placed on the active-duty list or reserve active-status list, be changed by the Secretary concerned to a later date to reflect such officer's qualifications and experience.  The authority to change the date of rank of a reserve officer who is placed on the active-duty list to a later date does not apply in the case of an officer who (A) has served continuously in the Selected Reserve of the Ready Reserve since the officer's last promotion, or (B) is placed on the active-duty list while on a promotion list as described in section 14317(b) of this title. 

8.  10 USC 716 provides that notwithstanding any other provision of law, the President, within authorized strengths, and with the consent of the officer involved, may transfer any commissioned officer of a uniformed service from his or her uniformed service and appoint him or her to another uniformed service.  An officer transferred under this section may not be assigned precedence or relative rank higher than that which was held on the day prior to the transfer.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for reconsideration of his request for an adjustment to his DOR as he was promised upon his transfer from the USMCR to the RA has been carefully considered.  However, there appears to be insufficient evidence to overturn the previous decision of the Board.  

2.  While the applicant has offered new evidence and argument, they do not provide any information that was not previously considered when the Board made its determination in his original case regarding being disadvantaged for promotion. 

3.  Although the applicant’s DOR was adjusted from 1 July 2007 to 27 November 2007, it appears that the adjustment was made in error.  The applicant was serving on active duty in the USMC when he made an inter-service transfer to the Regular Army without a break in service and the laws applicable to the applicant’s circumstances provide that the DOR in such cases remains the same.  However, it has long been the policy of this Board not to make an applicant worse off than they were prior to applying to the Board.  Therefore, the Board will not direct a change to his DOR. 

4.  Although the applicant may not agree with the interpretation of the applicable laws, lacking sufficient evidence to show that he is entitled to an adjustment of his DOR, there appears to be no basis to grant his 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20110012019, dated 10 January 2012.




      _______ _   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)                                         AR20130000274





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ABCMR Record of Proceedings (cont)                                         AR20130000274



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