IN THE CASE OF:  	  

		BOARD DATE:  4 September 2014	  

		DOCKET NUMBER:  AR20140010786 


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, in effect, an adjustment of his date of rank (DOR) to major (MAJ) from 14 April to 10 January 2011.

2.  The applicant states:

   a.  He was selected for promotion to MAJ by a position vacancy board (PVB) that convened in October 2010.  Due to an administrative error beyond his control (the unit's vacancy had a Table of Distribution and Allowance (TDA)/Unit Manning Report (UMR) change (the position still existed, but it had a new paragraph/line associated with it), his promotion was delayed until this administrative error was corrected.  As a result, the unit he was selected for promotion in had to submit a Memorandum for Record (MFR) showing that the position was in fact the same and that he was still eligible for promotion into the slot.  

   b.  The U.S. Army Human Resources Command (HRC) corrected the administrative error and processed his promotion, but his DOR is not the date he would have had if the TDA had not been changed (which was out of his control).  His DOR is now many months later than his colleagues who were selected for promotion on the same board.  He is requesting that his DOR be adjusted to the date he would have received if the administrative error had not occurred.



   c.  He is not requesting this in order to recoup back pay at a higher grade as little duty was performed during those months.  This is simply an issue of fairness as it related to the promotion.  His promotion date of April 2011 puts him significantly behind the promotion date of his peers and could cause him to be ineligible for the next promotion board up to almost a year later depending on when the board meets.

   d.  MAJ Cxxxx, whom he previously served with in the 1st Space Battalion, was selected for promotion on the very same promotion board.  MAJ Cxxxx's DOR is 10 January 2011.  He is requesting his DOR be adjusted to reflect the same date.

3.  The applicant provides copies of the following:

* October 2010 PVB Recommendation List
* emails between himself and the unit
* MFR
* email from MAJ Cxxxx

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant was appointed in the USAR, Signal Corps, as a second lieutenant, on 7 April 2001, with prior enlisted service.  His Area of Concentration was Signal Corps Officer.  He was promoted to captain on 6 December 2005.

3.  He provided copies of the following:

   a.  October 2010 PVB recommendation list which shows he was recommended for promotion to MAJ as a military analyst.  The list also shows MAJ Cxxxx was recommended for promotion to MAJ as a Space Operations Officer.
   b.  Email correspondence, dated between 28 February and 3 March 2010, wherein the Commander, 84th Training Command, advised the applicant that the unit no longer had the Military Analyst position on their books.  After looking at the current UMR it was reasonable to assume that the position evolved into an Operations Officer position that matched the exact same description, rank, MOS, etc.  The applicant replied that he was providing his transfer orders for his signature and the unit would need to do a 56-R (Promotion Qualification Statement) promoting him and after that was done he could be moved into whatever slot he was wanted in.  

   c.  An MFR, dated 7 March 2011, wherein the Commander, Headquarters, 84th Training Command, stated:

		(1)  Their UMR was and is in a carrier status as it had changed several times since the October 2010 PVB was conducted.  The billet originally sent forward to the PVB for selection was the Military Analyst position, which resided in their G-3 section.

		(2)  That position was re-coded during their last UMR change and still existed in their G-3 section and was now annotated as an Operations Officer.  

		(3)  That change should not be seen as a negative reflection on the applicant.  He requested processing the transfer and promotion of the applicant as originally placed into the currently designated bullet.

4.  Orders Number B-04-102435, issue by HRC, on 18 April 2011, promoted him to MAJ with an effective date and DOR of 14 April 2011.

5.  He also provided copies of the following:

   a.  Email correspondence between him and HRC, Office of Promotions, dated 13 April 2011, wherein he was advised in order to be promoted from a PVB recommendation, he must be assigned to the position recommended; if the position converted from one to another, he must be assigned to that position on the system.  He had to be physically assigned to the position that the PVB recommended him to before promotion orders could be published.

   b.  Email correspondence, dated 28 May 2014, wherein MAJ Cxxxxx advised him that he was boarded during the September 2010 PVB and his DOR was 10 January 2011.


6.  In an advisory opinion, dated 4 August 2014, the Chief, Officer Promotion Management, HRC, stated the applicant's assertion that he would be significantly behind the promotion date of his peers is without merit.  The Fiscal Year 2015 Lieutenant Colonel (LTC), Army Promotion List, Promotion Selection Board, will consider MAJs with a DOR of 1 January 2011 through 31 December 2011 below the zone.  The applicant's DOR of 14 April 2011 will allow him to be considered with his peers.

7.  On 5 August 2014, the advisory opinion was forwarded to the applicant for acknowledgment and/or rebuttal.  In his response, dated 11 August 2014, the applicant stated:

   a.  That opinion is incorrect.  He is a USAR officer and as such there is a USAR PVB that will meet in March 2015 to consider MAJ's with a DOR of March 2011 or earlier for promotion to LTC.  As it currently stood, his DOR of April 2011 placed him outside that window.  Any assertion that his DOR to MAJ would be no later than that of his peers on the same boards brought up an inherent issue of fairness. 

   b.  All officers considered by the same board should be promoted without prejudice from administrative errors that are due to no fault of the officer considered.  In his case, there was a material loss in that he cannot be considered for the March 2015 USAR PVB.

   c.  He was requesting the ABCMR uphold his request for fairness and due process and adjust his DOR to that of his peers who were considered by the same exact board, which would be January 2011, not April 2011.

8.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers in the USAR.  The regulation states in:

* Paragraph 2-13a(2) – the existence of a vacancy for a position will be determined prior to the position being filled from a PVB recommendation
* Paragraph 4-17b – the DOR is the date the officer actually or constructively was promoted to a specific grade

DISCUSSION AND CONCLUSIONS:

1.  The basic regulation which provides policy and guidance to this Board states the ABCMR will consider individual applications that are properly brought before it and will decide cases on the evidence of record.  This essentially means that cases are considered and the evidence is judged on its own merits.  Each case that is brought before the Board may have some similarities to other cases; however, each has many differences and therefore what was done in one case and the outcome achieved can not necessarily be applied to another seemingly similar case.

2.  The applicant was recommended for promotion to MAJ by the October 2010 PVB as a Military Analyst.  In February 2011, he was advised the original Military Analyst position he was boarded for evolved into an Operations Officer position that matched the exact description, rank, MOS, etc.  On 7 March 2011, the Commander, 84th Training Command requested the applicant be promoted to MAJ in the Operations Officer position.  He was promoted to MAJ on 14 April 2011.

3.  He was advised by HRC, Office of Promotions, he could not be promoted prior to being assigned to the recommended position.  It appears he was assigned to the Operations Officer position and promoted accordingly.  A valid vacancy was required in order for him to be promoted, even if the position converted from one to another.  He was promoted to MAJ in the USAR in accordance with regulatory guidance under the unit vacancy position.  

4.  His contention that he would not be eligible for the USAR PVB that will meet in March 2015 because that board requires a DOR of March 2011 or earlier is acknowledged.  Unfortunately, his promotion to MAJ was still conducted in accordance with regulatory guidance.  There is insufficient evidence to show he was treated any differently from other officers who also may have been affected by similar UMR changes before their promotions were finalized.

5.  Therefore, there is no error or injustice.

6.  In view of the foregoing, he is not entitled to 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)                                         AR20140010786



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140010786



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1