IN THE CASE OF:	   

		BOARD DATE:	  21 May 2013

		DOCKET NUMBER:  AR20140002109 


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 his effective date and date of rank (DOR) for Major (MAJ) be adjusted from 29 August 2011 to 29 August 2010. 

2.  The applicant states, in accordance with (IAW) Title 10 U.S. Code (USC), section 14304 (Eligibility for consideration for promotion: maximum years of service in grade), his time in grade (TIG) for Captain (CPT) exceeded the maximum TIG of 7 Years for promotion consideration to MAJ.  Additionally, the Army Promotion Board did not consider him for promotion because he transitioned from the active Army to the Army Reserve component.  The promotion board’s review of his record was not timely nor in accordance with the statutory directive to consider him for promotion to the next higher grade.  If he had been appropriately considered and recommended for promotion, the promotion would have been effective on or before the date on which he completed 7 years of service as a CPT.

3.  The applicant provides:

* Order Number 259-070, dated 16 September 2003
* Un official transcript, Seton Hall University, dated 16 July 2009
* DA Form 1059 (Service School Academic Evaluation Report (AER)), dated 17 June 2011
* Orders Number B-10-106919, dated 25 October 2011
* Notification of selection for promotion to MAJ, dated 2 November 2011


* AER, dated 24 July 2013
* AER, dated 10 December 2013
* Army Training Requirements and Resources System (ATRRS) Army training transcript, dated 25 April 2014
* Excerpt from Title 10 USC, section 14304
* Response to advisory opinion, dated 15 April 2014

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.  After graduating from West Point with a Bachelor of Science degree, the applicant was appointed as a Reserve commissioned officer on 27 May 2000.  He entered active duty that same day.

3.  His record contains an AER, dated 6 December 2000, shows he completed the Field Artillery Officer Basic Course.

4.  Orders Number 259-070, issued by the U.S. Army Human Resources Command (HRC), on 16 September 2003 promoted him to CPT with an effective date and DOR of 1 October 2003.

5.  His chronological statement of retirement points showing he served in the Regular Army from 27 May 2000 to 25 May 2005.  

6.  He was honorably released from active duty on 26 May 2005 due to completion of required active service and transferred to U.S. Army Reserve (USAR) Control Group (Reinforcement).  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in Item 2 (Department, Component and Branch) the entry:  "ARMY/USAR/FA."

7.  His record contains an unofficial transcript from Seton Hall University, dated 16 July 2009 showing he was awarded a Master of Arts degree in Diplomacy and International Relations.

8.  Orders Number C-10-014617, issued by HRC, on 13 October 2010 released him from assignment to USAR Control Group (Reinforcement) and assigned him to C Company, 450th Civil Affairs Battalion (Airborne), Riverdale, MD effective 12 October 2010.

9.  His record contains an AER, dated 17 June 2011 showing he completed the Financial Management Captains' Career Course.

10.  Orders Number B-10-106919, issued by HRC, on 25 October 2011 promoted him to MAJ with an effective date and DOR of 29 August 2011.

11.  His record contains an official academic record from the Naval Postgraduate School, dated 2 January 2012 showing he completed a Practicum in Regional Studies.

12.  His record contains an AER, dated 26 February 2012 which shows he completed the distance learning and resident training for the Civil Affairs Qualification Course.

13.  Orders Number 12-174-00011, issued by Headquarters, U.S. Army Civil Affairs and Psychological Operations Command (Airborne), Fort Bragg, NC, on 22 June 2012, ordered him to active duty in support of Operation Enduring Freedom with a reporting date of 25 July 2012.  

14.  He was honorably released from active duty on 5 May 2013 due to completion of required active service.  His DD Form 214 shows in Item 2 the entry:  "ARMY/USAR/CA."

15.  His record contains an AER, dated 24 July 2013 which shows he completed the Command and General Staff Officer Course.

16.  His record contains an AER, dated 10 December 2013 which shows he completed the Stability, Security and Development in Complex Operations course at the Naval Postgraduate School on 30 August 2013.




17.  His record, as listed on the Total Army Personnel Data Base – Reserve (TAPDB-R):

	a.  contains the following entries with respect to his current organization (CURORG):

* 27 May 2000, appointment, CURORG – 1 
* 28 May 2000, completion of required active service, CURORG – L
* 12 October 2010, assignment to a Troop Program Unit (TPU), 
CURORG - H

	b.  contains a transaction note entitled "TRANSFERS", dated 2 August 2010. This note shows HRC received a call from a "supposedly discharged soldier."  The applicant stated that he had not been discharged; he had been released from active duty but could not join a TPU because his CURORG was listed as (Y).

18.  During the processing of this case an advisory opinion was obtained from the Officer Promotion Management Division, HRC, on 13 March 2014.  The advisory official stated HRC conducted a review of the applicant's records and determined his current DOR of 29 August 2011 was correct; however, he may require a Special Selection Board (SSB).  The advisory official further stated:

	a.  The applicant was apparently transferred from the Active Component to the Reserve Component (the Individual Ready Reserve (IRR)) on 26 May 2005 but never given a Reserve Commission.  The applicant had a West Point commission and must have been Regular Army; however, the accompanying 
DD Form 214 erroneously shows him as USAR component.  As a result, the Reserve Soldier Management System showed the applicant's CURORG as discharged (Y) from 2005 until the October 2010 timeframe.  However, this system also shows that he unsuccessfully made multiple attempts to resolve his military status.  The applicant finally resolved his Reserve status and entered into a Troop Program Unit (TPU) designation in October 2010.

	b.  Based upon his (Y) discharge status, the applicant was omitted from both the Fiscal Year (FY) 2009 and 2010 MAJ Army Promotion Selection Boards for his Below-the Zone and In Zone considerations.  The applicant was subsequently considered and promoted to the rank of MAJ by the results of the FY 2011, MAJ, Army Promotion List/Promotion Selection Board.  Orders Number B-10-106919, issued by HRC, on 25 October 2011 promoted him to MAJ with and effective date and DOR of 29 August 2011.  29 August 2011 was the approval date of the Board and the earliest he could be promoted IAW Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers), paragraph 4-21.

	c.  The applicant is requesting that the 7 year maximum years of service requirement established in Title 10 USC, section 14304 be imposed for his DOR as  MAJ.  However, paragraph (b) of the same section only applies this rule to an officer being recommended for promotion by a promotion board the first time the respective officer is considered for promotion in the In-the-Zone or Above-the- Zone of consideration.

	d.  The applicant should be awarded an SSB for the FY 2010 In-the-Zone promotion consideration category.  However, the applicant did not start his military education (MILED) requirement for the CPTs Career Course Phase 1 until April 2011.  As such, in the 2010 timeframe he would not have been eligible for a MILED waiver and would have been automatically non-selected.  However, for the sake of fairness, the advisory official recommended the applicant be granted a MILPER Waiver for the FY 2010 SSB Promotion Board consideration, based upon the applicant having been erroneously extended in a (Y) status and the evidence of his due diligence to correct his status.

19.  On 15 April 2014, the applicant responded to the advisory opinion and indicated that he concurred with the advisory official's opinion and desires an SSB.

20.  TAPDB-R contains a table that identifies CURORG descriptions.  This table includes:  

* 1 = Active Army
* H = United States Army Reserve Troop Program
* L = USAR Control Group (Reinforcement)
* Y = Archived Record

21.  Army Regulation 135-155 prescribes policy and procedures used for selecting and promoting commissioned officers of the Army National Guard of the United States (ARNGUS) and commissioned officers and warrant officers (WO) of the USAR.

	a.  Paragraph 2-8 states, to qualify for selection, commissioned officers must complete the military educational requirements in table 2-2 not later than the day before the selection board convene date.


	b.  Paragraph 2-15 states, with the exception of the completion of OBC, a commissioned officer whose removal from active status has been invalid is not 
required to meet the military education requirements in table 2-2.  The CDR, HRC, Chief, Office of Promotions (RC), may waive the education requirements during this period of invalid removal from an active status.  To qualify, the officer must have resumed participation in an active status on discovery of the error.  If circumstances warrant, CDR, HRC, Chief, Office of Promotions (RC) may grant a waiver for an inactive or retired status period resulting from an invalid removal.

	c.  Paragraph 3-5 states mandatory Reserve of the Army selection boards and USAR position vacancy selection boards will convene as announced by Headquarters, Department of the Army (HQDA), Deputy Chief of Staff (DCS), 
G-1.  The Secretary of the Army has delegated the authority to convene SSBs to DCS, G-1.  The DCS, G-1 will convene promotion advisory board/SSBs on an as needed basis.  These boards will be convened to reconsider officers who were either improperly omitted from consideration due to administrative error, or who were non-selected for mandatory promotion as a result of material error.  Special selection boards are conducted as an additional duty of regularly scheduled mandatory Reserve of the Army selection boards for the same competitive category.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was released from active duty in May 2000 and placed into the IRR.  However this entry is clearly incorrect.  His DD Form 214 clearly shows he was released from active duty on May 2005.  Additionally, there is a 10-year gap in CURORG entries in TAPDB-R between May 2000 and October 2010 when he was placed into a TPU unit.  This indicated there was an error in the coding of his CURORG status.

2.  Furthermore, the advisory official at HRC stated that the Reserve Soldier Management System showed the applicant was discharged in 2005 and listed his CURORG as (Y) from 2005 until the October 2010 timeframe.  The advisory official also stated that the Reserve Soldier Management System also showed he made multiple attempts to resolve his military status but was unable to do so until he entered a TPU in October 2010.

3.  When the applicant's CURORG was listed a (Y)/discharged his records would have been archived and the Army would have seen him as a veteran with no current military status.  As such, he would not have been able to participate in or schedule himself for the necessary/required MILED.  Furthermore, his records would have been omitted from promotion board consideration.

4.  Therefore, based on the foregoing, it would be equitable to correct his record to show he had an approved MILED waiver prior to the convening date of the FY 2010 MAJ APL Board and that he be granted promotion reconsideration to MAJ by an SSB under the FY 2010 criteria.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

	a.  Showing he was granted a MILED waiver prior to the convening date of the FY 2010 MAJ APL Board;

	b.  Submitting his record to an SSB for promotion consideration to MAJ under the FY 2010 criteria;

	c.  If before the SSB process is completed he is removed from the Reserve Active Status List (RASL):

		(1)  Correct his records by continuing the SSB process; 

		(2).  If selected for promotion by the SSB, further correct his records by voiding his removal from the RASL, showing he met all the eligibility criteria for promotion selection effective the approved date of the promotion selection board, promoting him in due course in accordance with Army Regulation 135-155, to MAJ with the appropriate DOR, and paying him any associated back pay and allowances.

		(3)  If not selected, the applicant should be so notified.


2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends 
denial of so much of the application that pertains to adjusting his DOR to 
29 August 2010.



      ____________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)                                         AR20140002109





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ABCMR Record of Proceedings (cont)                                         AR20140002109



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