BOARD DATE:	  22 August 2013

		DOCKET NUMBER:  AR20130008399 


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 adjustment to his promotion effective date and date of rank for major (MAJ) from 27 August 2010 to 7 May 2010, with entitlement to back pay and allowances.  

2.  The applicant states:

   a.  His promotion to MAJ was delayed because his unit did not know he had to be assigned to a MAJ's slot even while mobilized.  While waiting for direction from the Personnel, Plans, and Training Office (PPTO) his orders changed and an exception to policy (ETP) was no longer available.  His current date of rank is 26 August 2010, the day his unit placed him into a MAJ's slot.  A fellow officer in the same unit, mobilized to the same location, and also on the same promotion list, was able to get an ETP because his orders did not change until after his date of rank was backdated to 7 May 2010, the day the promotion board “convened.”  

	b.  He was mobilized on the date the promotion board convened.  The date of rank is effective the same day the promotion board “convenes” if you are holding a MAJ’s slot in your Reserve unit.  Both he and a fellow officer were mobilized to support Operation Enduring Freedom (OEF) at Joint Base Lewis-McChord and their home station was the 6th Judge Advocate General (JAG) Legal Support Office (LSO), and they were both on the same promotion list in 2010.

	c.  They both contacted the PPTO at the Office of the Staff JA in June 2010 when they had not received their promotion orders.  The 65th JAG LSO was under the impression that there was an ETP for those occupying a MAJ's slot since they were mobilized.  While PPTO was trying to determine the correct course of action, his active duty orders ended and he continued on active duty with a new set of orders under Title 10, U.S. Code (USC), section 12302.  Because of the statutory authority for his new orders, the solution to their promotion becoming effective became different.  He could only be promoted once the 6th JAG LSO moved him into an appropriate slot.  His fellow officer was later promoted by an ETP; therefore, his effective date was backdated to 7 May 2010, when the promotion board “convened,” and he received the difference in pay back (base pay and basic housing allowance) to that date.

	d.  The 6th JAG LSO failed to ensure that he and this fellow officer were properly slotted when the promotion board “convened” on 7 May 2010.  At the time, the Command team and Unit Administrator had the belief that exceptions were made for mobilized officers.  Compounding the problem was a lack of direction from the PPTO.  An ETP would have been immediately requested by both him and this fellow officer had they been correctly informed, and presumably the JAG would have granted both requests.  Because the correct information was delayed for months, his change in orders prevented the exception from applying.

	e.  On 4 August 2011, he accessed to the Active Component and his date of rank remained the same in accordance with Army regulations.  According to his projected promotion plan, the cutoff will be at the end of May during the year he will be considered.  Therefore, the mistakes made by the 6th JAG LSO and PPTO will prevent him from being considered for promotion to lieutenant colonel (LTC) at the time he should be, and with his peers.

	f.  Although there was undue delay in the promotion of this fellow officer, the mistake was eventually corrected and that officer was placed in a position that he would have been placed in had the mistake never happened.  His fellow officer's date of rank was backdated to 7 May 2010 and he received back pay, which is the correct resolution.  However, the disparity in treatment of two officers in the exact same position creates a fundamental unfairness that needs to be corrected by the Army Board for Correction of Military Records (ABCMR).  He wants to be placed in the same position as his fellow officer and his date of rank corrected to 7 May 2010, with entitlement to back pay and allowances which would allow him promotion consideration with his peers.

3.  The applicant provides:

* Promotion of Mobilized and Active Duty for Operational Support (ADOS) Army Reserve Troop Program Unit (TPU) Officers memorandum
* Request for Overgrade Promotion While Mobilized memorandum
* MAJ promotion orders
* amended MAJ promotion orders
* 2011 active duty orders
* eight emails between himself and the Army Reserve G-1, Human Resource Officer and Reserve PPTO Office of the JAG pertaining to his promotion
* LTC Promotion Plan
* 2010 Basic Pay Chart
* Basic Allowance for Housing Rate Query Results

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed in the U.S. Army Reserve (USAR), JAG Corps, as a first lieutenant (1LT), effective 7 December 2000.  

2.  He was ordered to active duty in support of OEF and entered active duty on 11 January 2004.  He was promoted to captain effective 11 March 2004.  He was honorably released from active duty on 9 October 2005 and was transferred to a Reserve TPU.  

3.  Orders A-05-914817 were issued by the U.S. Army Human Resources Command (HRC), on 26 May 2009, ordering him to active duty in support of OEF under Title 10, with a report date of 11 June 2009.

4.  He provides a copy of a Promotion of Mobilized and ADOS Army Reserve TPU Officers memorandum, dated 30 April 2010, which stated:

   a.  Mobilized (Title 10, USC, sections 12302 and 12304) officers:  Army Reserve officers in the ranks of 1LT through LTC who are mobilized and on an approved mandatory promotion selection list may be promoted when "matched" against a valid vacant Army Reserve TPU position of the higher grade.  Authorized assignment exceptions for Medical Corps and Dental Corps officers to be promoted when occupying positions one grade below the grade to which promoted and for Chaplain and JAG Corps officers to be promoted when occupying positions one grade below the grade to which promoted remain in effect.  Mobilized TPU and Individual Mobilization Augmentee (IMA) officers are not required to be "assigned" to a higher-grade position, rather they must be "matched" against a higher-grade position prior to promotion and assigned to that higher-grade position upon demobilization.  If the officer, upon demobilization, declines or is unwilling to unable to occupy the higher-grade position to which he/she was matched, the officer will be given 180 days to be assigned to another higher-grade position or be reassigned to the Individual Ready Reserve (IRR).  Mobilized Army Reserve TPU and IMA officers who are on an approved mandatory promotion selection list will be promoted when reaching their maximum time in grade regardless of being matched or assigned to a vacant position of the next higher grade.  Upon demobilization, the officer will be given 180 days to be assigned to a higher grade position or will be reassigned to the IRR.  Mobilized Army Reserve TPU officers may not be reassigned between TPUs or to the IRR while mobilized.

	b.  ADOS (Title 10 USC, section 12301(d)) officers/warrant officers performing ADOS will not be placed in the Active Army, regardless of the duration of the ADOS duty.  They will remain on the Reserve Active Status List, as appropriate, and compete for promotion with other Army Reserve officers/warrant officers.  Army Reserve officer/warrant officers will move to the Active Duty List only if they apply and are approved for accession into the Active Army.

	c.  Army Reserve ADOS officers in the rank of 1LT through LTC will be promoted in accordance with (IAW) reference 1B.  They must be assigned to a valid vacant position commensurate with the grade to which being promoted.  Army Reserve ADOS officers who are on an approved mandatory promotion selection list will be promoted when reaching their maximum time in grade regardless of being assigned to a vacant position of the next higher grade and reassigned to the IRR, unless the officer has delayed or declined promotion IAW Title 10, USC, section 14312.  Reassignment between TPUs while on ADOS is authorized with the gaining and losing commanders' concurrence.

5.  He was considered and selected for promotion to MAJ by the 2010 JAGC Promotion Board which convened from 2 to 5 March 2010.  The board results were approved on 7 May 2010.

6.  Orders A-05-914817AO3 were issued by HRC, on 11 June 2010, amending Mobilization Orders A-05-914817 from 365 to 400 days.

7.  He was honorably released from active duty on 3 August 2011 and was transferred to a Reserve TPU.  He completed 5 years, 9 months, and 12 days of active duty.

8.  He also provides copies of the following:

* Request for Overgrade Promotion While Mobilized memorandum, dated 26 August 2010, which shows he was approved for an overgrade assignment and promotion while on active duty
* Orders B-09-006073 issued by HRC, on 16 September 2010, promoting him to MAJ with a date of rank and effective date of 26 August 2010
* Orders A-08-116820 issued by HRC, on 4 August 2011, ordering him to active duty in a voluntary indefinite status with a report date of 4 August 2011
* Orders Number 341-003 issued by HRC, on 6 December 2012, amending his date of rank for MAJ to 26 August 2010

9.  He was appointed in the Regular Army, JAG Corps, in the rank of MAJ, on 1 August 2011.

10.  In an advisory opinion, dated 21 June 2013, the Chief, Officer Promotions, HRC, stated:
   
   a.  IAW the Office of the Chief, Army Reserve Memorandum, Subject:  Promotion of Mobilized and ADOS Army Reserve TPU Officers, dated 30 April 2010, paragraph 4(b), Army Reserve ADOS officers in the rank of 1LT through LTC will be promoted IAW Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers – Reserve Promotions).  They must be assigned to a valid position commensurate with the grade to which being promoted.  
   
   b.  Based on Orders A-05-914817 and Orders A-05-0914971A03, dated 29 May 2009 and 11 June 2010, respectively, the applicant, from 11 June 2009 to 15 July 2010 was serving on ADOS orders which required him to be assigned to a higher-grade position.  As per AHRC Form 56-R (Promotion Qualification Statement), dated 31 August 2010, the applicant was assigned to a higher-graded position on 26 August 2010 which reflects his date of rank in the USAR.

11.  The advisory opinion was forwarded to the applicant for acknowledgement and/or rebuttal on 2 July 2013.  He did not respond.

12.  Army Regulation 135-55 provides the policy for selecting and promoting USAR commissioned officer.  The regulation states in:

   a.  Paragraph 4-17(3)b – the date of rank is the date the officer actually was appointed or promoted to a specific grade.  An officer's date of rank will be used to establish time in grade requirements to the next grade.

   b.  Paragraph 4-21 - an officer is promoted after selection if all qualifications for promotion are met.  When an officer does not meet the qualifications for promotion, the effective date of promotion will not be earlier than the later date all qualifications are met.  In no case will the date of rank or effective date of promotion be earlier than the date the board is approved or the date the officer is assigned to a higher grade position.  
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was mobilized in support of OEF from January 2004 to August 2011.  He was selected for promotion to MAJ by the 2010 JAG promotion board which was approved on 7 May 2010.  At that time he was on ADOS orders and was not assigned to the required higher-graded position.  He was assigned to a MAJ's position on 26 August 2010 and promoted on that date.  The regulation governing his promotion required assignment to the higher-graded position which he was finally able to obtain in August 2010.

2.  His contentions and the documents he submitted were carefully considered and found not to have merit.  IAW with regulatory guidance, the date of rank and effective date will not be earlier than the date the board is approved or the date the officer is assigned to a higher-grade position.  

3.  The documentation submitted by the applicant does not show he was erroneously or unjustly prevented from assignment to a valid MAJ’s position prior to 26 August 2010.  He was promoted IAW with applicable regulations.  The evidence does not show and he has not satisfactorily shown that he was unjustly denied an earlier date of rank and/or effective date for MAJ.  Therefore, it is concluded he was promoted to MAJ on the earliest date he was eligible.

4.  He stated a fellow JAG officer who was mobilized, assigned to his same home station, and selected on the same promotion list, had his date of rank and effective date backdated to 7 May 2010.  The basic regulation which provided policy and guidance to this Board states that the ABCMR will consider individual applications that are properly brought before it and will decide cases on the evidence of record.  Without sufficient evidence, this Board cannot judge what was done in that officer's case and say it can be applied to the applicant's case.  

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20130008399





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