IN THE CASE OF:  

		BOARD DATE:  12 March 2015  

		DOCKET NUMBER:  AR20140009475 


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 consideration by a special selection board (SSB) for promotion to lieutenant colonel (LTC)/O-5.  

2.  He states:

   a.  He was commissioned in 1987 as a second lieutenant (2LT) through the Army Reserve Officers’ Training Corps (ROTC) program.  After Basic Officer Leadership Course (OBC) and flight school in 1992, he moved to Connecticut to be part of the Connecticut Army National Guard (CTARNG).  He states that his request was delayed 3 times, and in 1995 after several health issues, he requested a transfer to the Individual Ready Reserve (IRR).

   b.  All his Officer Evaluation Reports (OER’s) state that he should be promoted to LTC/O-5 with his peers and that he was ready to continue his career and to receive advanced schooling as appropriate.  
   
   c.  In 1999, he decided to go back into the U.S. Army Reserve (USAR) in a Troop Program Unit (TPU).  During his in-processing, he had to submit proof of his participation and rank since the Army Reserve Personnel Center (ARPERCEN) did not have records stating that he was a commissioned officer.  
   
   d.  In 2002, as part of the CTARNG, he was eligible for promotion, and ARPERCEN sent him a letter stating that he was eligible for promotion to 
CPT/O-3, with an effective date of 1993.  However, CTARNG would not honor the promotion letter.  Therefore, in order to qualify to be promoted for Major (MAJ), he immediately enrolled in the Captains' Career Course (CCC), completed Aviation (AV) Phase I, and obtained orders to go to Phase II but it was cancelled 5 days before he was scheduled to go due to a change in their Method of Instruction (MOI).

   e.  In 2004, he was deployed to Iraq, in a combat zone, as a CPT/O-3.  In 
2005, immediately after deployment, he finished AV Phase I and Military Police (MP) Phase I to be promotion ready to MAJ/O-4.  His request for Phase II was denied since his unit was going through restructuring and they needed Chemical (CM) Officers.  

   f.  In 2008, he completed all the Phases and was sent to CM CCC 
and was promoted in the USAR to MAJ/O-4.  He states that he should have been promoted to LTC/O-5 in 2008 with his peers (from his ROTC class), as indicated in his OER’s.  

   g.  He states he has been proactive to be Intermediate Level Education (ILE) qualified, completed Phase I, and all the tests for Phase II, but a Medical Evaluation Board (MEB) was precluding him from finishing the course even through distance learning.  He states he is not interested in backpay but only in the promotion.

   h.  Now at 48 years of age, he has started and managed a few 
corporations and non-profits as part of the Board of Directors (BOD).  Based on his managerial skills, master’s degree, and military experience, the needs of the Army would be better served with him being a LTC/O-5 rather than a MAJ/O-4.

3.  He provides OER's.

CONSIDERATION OF EVIDENCE:

1.  On 12 June 1987, the applicant was commissioned as a 2LT/O-1 in the USAR through the ROTC Program in Rio Piedras, Puerto Rico.  

2.  On 12 June 1990, he received an appointment in the grade of first lieutenant (1LT)/O-2 in the USAR, and on 2 August 1989, he was honorably released from the USAR.  

3.  In 1992, the applicant moved to Connecticut to be part of the CTARNG in the rank of 1LT/O-2.  He then transferred back to the USAR as a 1LT/O-2, and in 1995, transferred to the IRR due to medical reasons.  

4.  In 1999, the applicant reentered the USAR in a TPU as a 1LT/O-2.  However, the ARPERCEN did not have records stating that he was a commissioned officer.

5.  On 23 May 2001, although he was appointed in the CTARNG as a CPT/O-3, it was not until on 28 June 2002 that he was promoted to CPT/O-3 within the CTARNG due to a position within the CTARNG being available.    

6.  In the USAR, the applicant was only promoted to 1LT/O-2. 
  
7.  In 2002, the applicant states that ARPERCEN sent him a letter stating that he was eligible for promotion to CPT/O-3 with an effective date of 1993 within the USAR; however, CTARNG would not honor that promotion.  The letter is not available.    

8.  On 12 February 2003, the applicant was honorably separated from the CTARNG as a CPT/O-3, and he transferred to the USAR as a CPT/O-3.  While with the USAR, the applicant was deployed to Iraq from 2004 to 2005.  A copy of his DD Form 214 (Release of Separation from Active Duty) for this period of active duty service is not available.

9.  On 29 July 2008, after all requirements for promotion were met, the applicant was promoted to the rank of MAJ/O-4 in the USAR; however, he states he should have been promoted to LTC/O-5 with his peers in 2008 when the last of his peers from his ROTC class were promoted. 

10.  On 16 January 2015, he was released from assignment due to permanent disability.

11.  An advisory opinion was received by the US. Army Human Resources Command (HRC) dated 11 July 2014.  The advisory official states:

a. Based on a review of the applicant’s records and the information provided, 
his request for promotion reconsideration to LTC/O-5 does not have merit.  

b. The applicant was considered for promotion by the Fiscal Year (FY)13 
and FY14 Army Promotion List (APL), Army Reserve (Non-AGR), Promotion Selection Board (PSB); however, he was not recommended.  

c. Additionally, review of his records does not reflect that he was military 
education qualified (MEQ).  Even if he had been MEQ, there would have been no guarantee that he would have been selected for promotion to LTC/O-5.  There is definitive proof that officers deemed not educationally qualified are automatically non-selected for Reserve Component promotions.
d. Finally, his records did not show any orders or Federal recognition stating 
he should have been promoted at an earlier date for CPT/O-3, nor was there a board granting him an earlier promotion date for CPT/O-3.  

12.  The applicant was provided a copy of the advisory opinion on 25 July 2014 for response; however, he did not respond within the allotted time period.

13.  Authority granted to the Secretaries of the Military Departments in Secretary of Defense Memorandum, subject:  Re-delegation of Authority under Executive Order 12396, dated 9 December 1982, to appoint officers under section 624 of Title 10, U. S. Code, in the grades of O-2 and O-3 was rescinded effective 1 July 2005 based on advice from the Department of Justice that prohibits re-delegation below the Secretary of Defense of the President’s authority to appoint military officers.  All military officer appointments under section 12203 of Title 10, U.S. Code, including original appointments, in the Reserve of the Army, Reserve of the Air Force, Naval Reserve, and Marine Corps Reserve, not previously approved by 30 June 2005, shall also be submitted to the Secretary of Defense.

14.  Army Regulation 135-55 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) provides policy for selecting and promoting commissioned officers of both the Army National Guard of the United States (ARNGUS) and the U.S. Army Reserve (USAR), and warrant officers of the USAR.

	a.  Paragraph 3-19a(2) states special selection boards, convened under the Reserve Officer Personnel Management Act (ROPMA) on and after 1 October 1996, will reconsider commissioned officers, (other than commissioned warrant officers) who were wrongly not considered and reconsider commissioned officers (other than commissioned warrant officers) who were considered but not selected by mandatory promotion boards that convened on or after 1 October 1996.  These boards do not reconsider officers who were not considered or not selected by mandatory promotion boards that convened before 1 October 1996.

	b.  Paragraph 3-19c states these boards are convened to correct/prevent an injustice to an officer or former officer who was eligible for promotion but whose records:

		(1)  Through error, were not submitted to a mandatory promotion selection board for consideration.



		(2)  Contained a material error when reviewed by the mandatory selection board.

   c.  paragraph 2–8, states that for military educational requirements, to qualify for selection, commissioned officers (other than commissioned warrant officers) must complete the military educational requirements not later than the day before the selection board convene date.
   
DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support an SSB in the rank of LTC/O-5 for the applicant.  No administrative error occurred nor did the board act contrary to law or make a material error.  The applicant has not provided any documentation from ARPERCEN to show that he should have been or was promoted to 
CPT/O-3 in 1993.  Even if he did supply proof, the CTARNG was not under any obligation to honor the USAR promotion since ARNG promotions are not tied to USAR promotions.

2.  The applicant has not provided clear and convincing evidence of a strong and compelling nature establishing that the presumption of regularity should not be applied for approval of his request for a SSB for LTC/O-5 at an earlier date.  

3.  Accordingly, there is no basis to approve his request for a SSB or referring the applicant to an SSB to be reconsidered for promotion to LTC/O-5.  

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)                                         AR20130010866



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ABCMR Record of Proceedings (cont)                                         AR20140009475



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