IN THE CASE OF:	  

		BOARD DATE:	  5 March 2014

		DOCKET NUMBER:  AR20130011327 


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 promotion date to major (MAJ) from 25 October 2000 to 28 June 1998 and promotion date to lieutenant colonel (LTC) to 27 June 2005.

2.  The applicant states:

   a.  These errors originated from an erroneous promotion occurring on 19 May 1997.  The impact of these errors placed him 2 years out of his peer year group and resulted in later promotions and schooling.  The secondary and tertiary efforts resulted in missing school dates (due to lower rank) and allowing him only one appearance on the colonel (COL) Army Promotion List (APL) before reaching his mandatory removal date (MRD).  It is his belief that his close proximity to his MRD had an impact upon his career.

   b.  Despite numerous attempts to straighten out his record, he has been denied the opportunity to compete with his established year group.  He served almost 11 years in the rank of captain (CPT) which has cast a cloud of doubt over his official military personnel file (now known as the Army Military Human Resource Record (AMHRR).

   c.  Anything is possible; however, he contends that the probability of so many administrative errors happening during a 15-year period in a Soldier's career is not statistically supportable.  So many incidents happening to one Soldier raises the possibility that gross negligence or intentional tampering could be present.  

   d.  He has been an officer in the U.S. Army Reserve (USAR) for 28 years.  His last 8 years have been on continuous mobilized active duty.  He has deployed for Operation Iraqi Freedom; worked at the Department of the Army and Major Army Command levels; provided distinguished service in establishment of the USAR's first Battalion Command Training Division; and earned an active duty command of the largest, most critically complex, and highest-visibility Warrior Transition Battalion in the Army.  In this brigade-size mission, his record details nothing less than outstanding performance in an active duty command.

3.  The applicant provides copies of the following:

* 1984 USAR appointment memorandum
* First lieutenant (1LT), CPT, and MAJ promotion memoranda
* Certificate of Appreciation
* Orders Number 97-139-031
* Corrected promotion memorandum for CPT
* Promotion congratulations letter to the rank of MAJ
* Orders Number T-12-721225
* Orders Number 98-064-001 and corrected promotion memorandum
* Orders Number T-05-809166
* Revocation of Erroneous Promotion Orders memorandum
* Revocation of Promotion as a Reserve Commissioned Officer of the Army memorandum
* Request for Stand-by promotion for CPT
* Notification of Promotion Status memorandum
* Two Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty memoranda
* Orders Number B-01-700324
* Orders Number B-01-700324R
* Letter from the Office of Promotions, Reserve Components, U.S. Army Human Resources Command (HRC)
* Orders Number B-02-701393
* Detailed Timeline of Administrative Issues Surrounding the MAJ APL Board
* Typical Promotion Timeline

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.  The applicant was appointed in the USAR, as a second lieutenant, effective 1 July 1984.  He was promoted to 1LT with an effective date and date of rank (DOR) of 30 June 1987.  He provided copies of the following:

   a.  A Selection of Promotion memorandum effective 29 June 1991.  No rank is listed.

   b.  A Return of Promotion Action memorandum, dated 11 March 1997, revoking his promotion because he was not assigned to a higher-graded position. No rank is listed.  The memorandum stated he could elect to transfer to the Individual Ready Reserve (IRR) for the promotion.

   c.  A Certificate of Appreciation, dated 4 May 1997.

   d.  Orders Number 97-139-031, issued by Headquarters, USAR Command, dated 19 May 1997, assigning him to the IRR effective 1 June 1997.  The orders, later amended, stated he was promoted to MAJ exceeding vacancy.

   e.  A Promotion as a Reserve Commissioned Officer of the Army memorandum, dated 19 May 1997, promoting him to MAJ effective 1 June 1997 with a DOR of 29 June 1991.

   f.  A Promotion as a Reserve Commissioned Officer of the Army memorandum (Corrected Copy), dated 19 May 1997, promoting him to CPT effective 1 June 1997 with a DOR of 29 June 1991.

   g.  A promotion congratulations letter for the rank of MAJ.

   h.  The following orders issued by Headquarters, USAR Command:

		(1)  Orders Number T-12-721225, dated 23 December 1997, ordering him to active duty special work (ADSW) for 179 days with a report date of 5 January 1998; the orders show his rank as MAJ.

		(2)  Orders Number 98-064-001, 5 March 1998, amending Orders Number 97-139-031 to show his rank as CPT.

		(3)  Orders Number T-05-809166, dated 22 May 1998, ordering him to ADSW for 104 days; the orders show his rank as CPT.

   i.  A Revocation of Erroneous Promotion Orders memorandum, dated 8 June 1998, notifying him of the erroneous issuance of a memorandum promoting him to MAJ and that the promotion memorandum and corrected memorandum, both dated 19 May 1997, were voided.  The USAR Command advised that the errors were wholly the responsibility of that command and any request for abatement concerning pay and allowances received while in the grade of MAJ would be supported by that command. 

   j.  A Revocation of Promotion as a Reserve Commissioned Officer of the Army memorandum, dated 24 June 1998, advising him of the revocation of the memorandum promoting him to MAJ.  The memorandum also advised that his promotion effective date and DOR to CPT was 29 June 1991.

   k.  A Request for Stand-By promotion for CPT, dated 28 October 1998, wherein he requested promotion consideration to MAJ by a special selection board (SSB).

   l.  A Notification of Promotion Status memorandum, dated 25 March 1999, wherein he was advised of his non-selection for promotion to MAJ by the Army Reserve Components Selection Board (RCSB) that convened on 6 October 1998.  He was also advised that if he remained eligible he should be considered the next year.

3.  He was discharged from the USAR and was appointed in the Louisiana Army National Guard (LAARNG), as a CPT, effective 7 July 1999.  

4.  He also provided copies of the following:

   a.  An Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty memorandum, dated 14 January 2000, wherein the ARNG was advised of his selection for promotion to MAJ by the 1999 RCSB with a promotion eligibility date of 28 June 1998.  The memorandum also advised that the effective date of promotion would be the date Federal Recognition was extended in the higher grade.

   b.  A Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty memoranda, dated 25 October 2000, wherein the ARNG was advised of his selection for promotion to MAJ by an SSB under the 1999 criteria with a promotion eligibility date of 31 August 1998.  The memorandum also advised that the effective date was the Presidential approval date and under the Reserve Officer Personnel Management Act, that was the earliest possible date an officer could have.

5.  He was promoted to MAJ with an effective date and DOR of 11 December 2001.  He was separated from the LAARNG effective 8 December 2004 and was transferred to the USAR. 

6.  He further provided copied of the following:

   a.  Orders Number B-01-700324, issued by HRC on 9 January 2007, promoting him to LTC with an effective date and DOR of 7 December 2006; and Orders Number B-01-700324R, on 31 January 2007, revoking Orders Number  B-01-700324 pertaining to his promotion to LTC.

   b.  A letter, dated 1 February 2007, wherein the Chief, Office of Promotions, Reserve Components, HRC, advised him that he was not in the zone of consideration for promotion to LTC by the 2006 RCSB.  The Memorandum of Instructions (MOI) to the board provided that the zone of consideration was officers with DOR of 1 April 2000 to 31 March 2001.  With an 11 December 2001 DOR, he was not in the zone for consideration by that board.  Therefore, his promotion to LTC was erroneous and must be withdrawn.  He was advised of his rights to submit a rebuttal within 30 days.

   c.  Orders Number B-02-701393, issued by HRC, dated 22 February 2007, promoting him to LTC with an effective date and DOR of 7 December 2006.

   d.  A Detailed Timeline of Administrative Issues Surrounding the MAJ APL Board which pertains to his promotion actions.

   e.  A Typical Promotion Timeline which shows his promotions and dates.

7.  He was transferred to the Retired Reserve effective 30 April 2013 for completion of maximum authorized years of service.

8.  On 5 August 2013, an advisory opinion was provided in this case from the Chief, Officer Promotions, Special Actions, HRC.  The HRC official stated:

   a.  Their office could not affirm if the applicant's request for a DOR adjustment and/or reconsideration for promotion by an SSB had merit.  His AMHRR did not contain any orders or instruments that reflect approval to promotion to MAJ; without that they could not move forward.

   b.  They requested the applicant be allowed a reasonable amount of time to produce the orders to the Board for additional review and further consideration.  In addition, due to the applicant's retired status, if proven eligible, any approved basis for reconsideration by an SSB could only occur per ABCMR directive.

9.  On 12 August 2013, the advisory opinion was provided to the applicant for acknowledgement and/or rebuttal.  In his rebuttal, dated 19 August 2013, the applicant stated he did not have any direct supporting documentation that would verify the request made to him in 1998.  However, he did have two officers with first-hand knowledge of the situation who would be willing to attest to the fact that he did submit to the U.S. Army Reserve Personnel Center (ARPERCEN) a request for an SSB in 1998.  The officers were present at the time and have intimate knowledge of the situation.  They were, in fact, his mentors providing him guidance and proofreading documents prior to sending them forward in his attempt to correct his record.  He provided copies of the following:

   a.  A letter, dated 19 August 2013, wherein the individual attested to working with the applicant during his attempt to correct ARPERCEN's error.  The applicant brought that issue to him and another officer requesting guidance.  One of the accomplished tasks included a request to the then ARPERCEN for an SSB.  He has kept in touch with the applicant throughout his career.

   b.  A letter, 19 August 2013, wherein the second individual stated that in 1998 the applicant approached him about an irregularity in his record and that he had been promoted early.  With the aid of another officer they encouraged the applicant to request an SSB.  He knows that was accomplished as he was the officer who proof read the document before the applicant sent it.  That was not the only issue and the applicant sought him out again when HRC tried to take his promotion to lieutenant colonel away in 2007.  He fully supports the applicant's request to have his records corrected and offers to personally testify to the Board on his behalf.

10.  Army Regulation 135-155 (ARNG and USAR, Promotion of Commissioned Officers and Warrant Officers, Other Than General Officers) sets the policies used for selecting and promoting commissioned officers.  The regulation states in:

   a.  Paragraph 2-10(2) - Promotion eligibility is determined by the Deputy Chief of Staff, G-1 and approved by the Secretary of the Army (SA).  For mandatory Reserve of the Army promotions, eligibility is based on time in grade.  Promotion to captain requires completion of a maximum of 5 years in the lower grade, promotion to MAJ requires completion of a maximum of 7 years in the lower grad, and promotion to LTC requires completion of a maximum of 7 years in the lower grade, and promotion to COL requires completion of a maximum of 5 years in the lower grade.

   b.  Paragraph 3 - Zone of consideration lists will be prepared according to criteria established by Commander, HRC and Chief, Office of Promotions, HRC.  The SA or their designee will issue an MOI to selection boards.  The MOI will include the zone of consideration as well as guidance to the board on methods of selection, reports to be furnished, and any other administrative details required.

   c.  Paragraph 3-18 - An officer’s name will be removed from a promotion list when the officer was not in the zone of consideration.

   d.  Paragraph 3-19 - Officers who have either failed of selection for promotion, or who were erroneously not considered for promotion through administrative error may be reconsidered for promotion by either a promotion advisory board or an SSB, as appropriate.

   e.  Paragraph 4-15 - The effective date of promotion may not precede the date on which the promotion memorandum is issued.  In addition, the officer must already be assigned/attached to a position in the higher grade or, if an IRR officer selected by a mandatory promotion board, have completed the maximum years of service in grade in the current grade.  An officer’s DOR will be used to establish time in grade requirements to the next grade.

   f.  Paragraph 4–34g - Subject to the needs of the Army, officers in the grade of LTC and COL pending separation for reason of years of service may be selectively continued in an active status in their present grade, but not beyond the date on which the officer completes 33 years of commissioned service (LTC)) or 35 years of commissioned service (COL).

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was advised by the USAR Command that the two 1997 promotion memoranda for his promotion to MAJ in 1997 were in error and the promotion was revoked.  

2.  He was considered and not selected for promotion to MAJ by the 1998 RCSB. He was later considered by and selected for promotion to MAJ by an SSB under the 1999 year criteria.  He was promoted to MAJ effective 11 December 2001.  

3.  There is no evidence of record and he provided none to show he met the criteria for promotion to MAJ (specifically, being in the higher-grade position) on 28 June 1998 or earlier than 11 December 2001. Therefore, there is no basis for granting him the requested relief.

4.  There is also insufficient evidence showing he was unjustly denied an SSB for MAJ under the 1998 criteria.  He also has not shown his non-selection in 1998 was based on error.  Notwithstanding that he was never considered by an SSB under the 1998 criteria, his retired status may negate an SSB request at this late date.  If, and only if, he were to be selected, without the benefit of a higher graded position, the earliest he could be promoted would be the date of assignment to a higher-graded position or after his transfer to the IRR. 

5.  There is also no evidence of record and he did not provide sufficient showing he met the criteria for promotion to LTC on 27 June 2005 or earlier than 7 December 2007.  Therefore, there is no basis for granting him the 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)                                         AR20130011327



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ABCMR Record of Proceedings (cont)                                         AR20130011327


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