BOARD DATE: 11 March 2014
DOCKET NUMBER: AR20130012159
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 that he be promoted to the rank of colonel with entitlement to all back pay and allowances.
2. The applicant states he was promoted to the rank of colonel by a special promotion board in 2009 and he submitted his Form 56-R (Promotion Qualification Statement) in a timely fashion. He requested that his unit administrator (UA) submit his personnel qualification record on several occasions, but he obviously did not do so. He requested that his Mandatory Removal Date (MRD) be re-set, which was declined, and he was discharged before receiving his promotion order. His promotion to colonel was denied because of a lack of action by the UA and was through no fault of his. Accordingly, he should be promoted to colonel with all back pay and allowances.
3. The applicant provides copies of his Form 56-R; memoranda from the U.S. Army Human Resources Command (HRC) Promotions Branch; and a copy of a Congressional Record, dated 16 November 2009.
CONSIDERATION OF EVIDENCE:
1. The applicant was born in 1949 and was commissioned as a U.S. Army Reserve (USAR) Medical Corps (MC) captain on 30 January 1997. He continued to serve in the USAR and he was promoted to the rank of lieutenant colonel on
31 March 2004.
2. On 23 November 2009, the applicant was informed that he had been selected for promotion to the rank of colonel by a Standby Advisory Board under the 2009 criteria with a date of rank of 30 March 2010, provided documentation was submitted to verify assignment to a valid MC position.
3. On 1 November 2011, the applicant was honorably discharged from the USAR due to reaching his MRD as a result of reaching age 62.
4. In the processing of this case a staff advisory opinion was obtained from HRC at Fort Knox, Kentucky which opines that as of 22 October 2009 the applicant was assigned as a 60-day loss and not assigned to an authorized position and the Form 56-R did not contain a commanders signature or assigned paragraph and line number that would show the commander intended to authorize him to be assigned to a respective position for promotion purposes. Additionally, adjusting his MRD would be in violation of Title 10, U.S. Code, Section 14509, which provides that all officers under the rank of major general retire or separate at age 62. Officials at HRC advised that without a unit manning report showing the applicant was assigned to a valid position and a Form 56-R signed by the commander, there is no basis to promote him to colonel. The advisory opinion was provided to the applicant for comment and to date no response has been received by the staff of the Board.
5. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Offices other than General Officers) provides, in pertinent part, that an officer in the Army Reserve who is on a promotion list as a result of selection for promotion by a mandatory promotion board may be promoted at any time to fill an authorized position and MC officers can be assigned to a position up to two grades below the grade to which promoted.
6. Army Regulation 140-10 (Assignments, Attachments, Details and Transfers) provides, in pertinent part, that members of the Army Reserve will be removed from an active status, with or without the officers consent regardless of the length of commissioned service, upon attaining the maximum allowable age.
DISCUSSION AND CONCLUSIONS:
1. The applicants contentions and supporting documents have been carefully considered and appear to lack merit.
2. The applicant has failed to show through the evidence of record and the evidence submitted with his application that he was in a valid MC position and that his commander verified that he was eligible to accept the promotion to colonel.
3. Therefore, in the absence of such evidence, there appears to be no basis to grant the applicants request for promotion to the rank of colonel.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__X_____ __X______ X_____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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.
2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism. The applicant and all Americans should be justifiably proud of his service in arms.
_______ _ 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) AR20130012159
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ABCMR Record of Proceedings (cont) AR20130012159
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