IN THE CASE OF:	  

		BOARD DATE:  9 January 2014

		DOCKET NUMBER:  AR20130004180 


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 to the rank/grade of major (MAJ)/O-4 when he was selected by the Position Vacancy Board (PVB) in March 2009.

2.  The applicant states the 87th U.S. Army Reserve (USAR) Support Command East refused to promote him.  From September 2008, he was assigned to an O-4 position in the rank/grade of captain (CPT)/O-3.  The PVB convened on 25 March 2009 and he was selected for promotion, but according to the 87th USAR Support Command East he was mobilized.  Therefore, they refused to recommend him for promotion.  Even though he was mobilized, he was assigned to the position as a troop program unit (TPU) Soldier with the 157th Infantry Brigade, 1st Army Division East.  He states he was in the position; therefore, he should have been promoted.

3.  The applicant provides:

* self-authored statement
* Orders 08-172-00001
* Orders A-02-103877
* Orders A-11-823147
* Orders A-12-934270
* Orders A-12-934270A01
* DA Form 4935 (Request for Unit Vacancy Fill)
* two memoranda
* Unit Manning Report (UMR) excerpt
* DA Form 2464-R (USAR Unit Vacancy Promotion Recommendation)
* DA Form 4037-E (Officer Record Brief)
* U.S. Army Human Resources Command (HRC) record of assignments

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.  On 2 July 1999, he was appointed as a Reserve commissioned officer of the Army as a chaplain in the rank/grade of first lieutenant/O-2.

3.  The evidence shows he was promoted to the rank/grade of CPT/O-3 on 2 June 2004.

4.  Headquarters, 143d Transportation Command, Orders 08-172-00001, dated 20 June 2008, assigned the applicant to the 157th Infantry Brigade effective 20 June 2008.

5.  HRC Orders A-11-823147, dated 14 November 2008, ordered the applicant to active duty with the 157th Infantry Brigade for a period of 100 days for contingency operations-active duty operational support (CO-ADOS) in support of Operation Enduring Freedom.

6.  HRC Orders A-12-934270, dated 15 December 2009, ordered the applicant to active duty with the 157th Infantry Brigade for a period of 365 days for CO-ADOS in support of Operation Enduring Freedom.

7.  His records contain an officer evaluation report for the period 16 September 2008 through 15 September 2009 which shows he was in a mobilized status and rated as the 157th Infantry Brigade Chaplain.



8.  The applicant provides:

	a.  his Officer Record Brief (ORB) which shows he was assigned as the 157th Infantry Brigade Chaplain for the period 16 September 2008 through 26 June 2011;

	b.  a DA Form 4935, dated 8 January 2009, which shows the commander of the 157th Infantry Brigade identified the brigade chaplain position as a unit vacancy as of 1 September 2008;

	c.  an excerpt from the 157th Infantry Brigade Unit Manning Report prepared on 15 January 2009 which shows the vacant O-4 chaplain position;

	d.  an undated USAR Unit Vacancy Promotion Recommendation which shows the applicant was both recommended and not recommended for promotion;

	e.  a letter of input from the Commander, 157th Infantry Brigade, 1st Army Division East to the President, Chaplain Corps Major Promotion Board, dated 30 January 2009, which states the applicant currently serves as the Brigade Chaplain;

	f.  a printout showing the convening date, release date, and approval date of the March 2009 PVB for which he was under consideration.  The approval date of the March 2009 PVB was 30 June 2009.

9.  HRC Orders B-03-001520, dated 18 March 2010, show the applicant was promoted to the rank/grade of MAJ/O-4 with an effective date and date of rank (DOR) of 27 February 2010.

10.  During the processing of this case, an advisory opinion was obtained from the Chief, Officer Promotions Management, HRC, dated 12 April 2013, who concluded the applicant's DOR to MAJ was established in accordance with regulatory requirements.  The advisory opinion stated:

	a.  The applicant was considered and recommended for promotion by the March 2009 PVB; however, he was not eligible for promotion at the time the respective board recessed.  In accordance with Army Regulation 135-155 (Army National and Army Reserve – Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 3-18, if an officer selected for a position-vacancy promotion is determined to be ineligible for promotion based on being ordered to active duty (other than active duty for training or active duty with the unit in which the position vacancy exists) before promotion, the officer will be administratively deleted.  The mobilization policy for PVB's also states that a non-mobilized officer considered by a PVB must likewise be removed from consideration by the board.  Note:  The applicant has served four consecutive mobilizations from 19 November 2008 through August 2011 and, as such, was ineligible for PVB consideration.

	b.  The applicant was subsequently considered by the Fiscal Year 2010, USAR, MAJ, Chaplain, Promotion Selection Board (PSB), and recommended for promotion.  His current DOR to MAJ was established based on receipt of the AHRC Form 56-R (Promotion Qualification Statement) from his parent unit assigning him to the higher-graded position effective 27 February 2010.

	c.  Based on the approval date of the Fiscal Year 2010, USAR, MAJ, Chaplain, PSB, the earliest DOR for that particular board was 26 January 2010.  If proof of assignment to the higher position (i.e., MAJ) is provided with substantiated information (i.e., UMR and new AHRC Form 56-R) for the requested period, the officer could receive an earlier DOR as established by Army Regulation 135-155, paragraph 4-21b(2).  Note:  The UMR is required because Regional Level Application Software only provides a snapshot of current assignment information and the associated effective date whereas the UMR provides historical-based information from a past snapshot in time.

11.  The advisory opinion was furnished to the applicant for information and the opportunity to submit comments or a rebuttal.  On 9 May 2013, he responded by stating, in effect:

	a.  The advisory official stated, "In accordance with [Army Regulation 
135-155, paragraph 3-18], if an officer selected for a position vacancy promotion is determined to be ineligible for promotion based upon being ordered to active duty (other than active duty for training or active duty with the unit in which the position vacancy exists) before promotion, he will be administratively deleted."  The statement in parenthesis is the exception to the policy which applies to his situation.  On 20 June 2008, he was assigned to the 157th Infantry Brigade as a TPU Soldier, the 157th Infantry Brigade was his parent unit.  He served in the position of Brigade Chaplain months before he applied for the PVB in March 2009.

	b.  The 157th Infantry Brigade is a multi-component unit.  The unit was composed of Active, Reserve, and Active Guard Reserve Soldiers.  He served as a TPU Soldier in this multi-component unit.  The assertion by HRC that he was mobilized for four consecutive mobilizations from 19 November 2008 through 20 August 2011 is not applicable in this case.  This assertion actually supports his position that he was serving in the position (56A) upon assignment to the 157th Infantry Brigade on 20 June 2008.  As proof, he questions why the command would recommend him to the PVB if he were not in the position.

	c.  He was considered for promotion by the Fiscal Year 2010, USAR, MAJ, Chaplain, PSB, based on his selection by the PSB.  The Promotion Qualification Statement signed by him and his unit was not an assignment to the higher grade as asserted by HRC.  It is his understanding that the DA Form 56-R is a required form for promotion when a Soldier is selected by his/her required board; it is not a statement of assignment to a higher-graded position.

	d.  He questions what additional proof of assignment to the higher-graded position is required by HRC.  His reassignment orders to the unit are adequate proof that he was assigned to and serving in the MAJ/O-4 position for over 3 years.  He was not cross-leveled into the unit; it was his home/parent unit.  He asks when a Soldier is assigned to a higher-graded position – is it based on selection by a PSB or a PVB?

12.  Army Regulation 135-155, paragraph 4-21b(1), addresses effective dates of promotion to fill USAR position vacancies under the provisions of paragraph 
2-13.  The effective date and date of promotion will be no earlier than the approval date of the board, the date of Senate confirmation (if required), or the date the officer is assigned to the position, whichever is later.  If not occupying the position, assignment of selectees to position vacancies will take place immediately upon announcement of the results of the board.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to correct his records to show he was selected for promotion to the rank/grade of MAJ/O-4 by the March 2009 PVB has been carefully considered.

2.  The evidence shows the applicant was considered and recommended for promotion by the March 2009 PVB which was approved on 30 June 2009.  Contrary to the advisory opinion, the evidence of record shows he was already assigned to the position and subsequently ordered to active duty with the unit in which the position vacancy existed.  This is further corroborated by his officer evaluation report for the period 16 September 2008 through 15 September 2009 and ORB which show he was in a mobilized status and rated as the 157th Infantry Brigade Chaplain.

3.  Notwithstanding the advisory opinion rendered by HRC, it would be equitable and just to correct the applicant's records to show he was promoted to the rank/grade of MAJ/O-4 with an effective date and DOR of 30 June 2009 and entitlement to back pay and allowances based on this adjustment.

BOARD VOTE:

____X___  ____X___  ___X__ _  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  voiding HRC Orders B-03-001520, dated 18 March 2010,

	b.  promoting him to the rank/grade of MAJ/O-4 with an effective date and DOR of 30 June 2009; and

	c.  paying him all back pay and allowances due as a result of this correction.



      _______ _  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)                                         AR20130004180



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ABCMR Record of Proceedings (cont)                                         AR20130004180



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