IN THE CASE OF:	  

		BOARD DATE:	 28 April 2015 

		DOCKET NUMBER:  AR20140011859 


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 promotion to lieutenant colonel (LTC) U.S. Army Reserve (USAR) based on the results of a September 2013 LTC USAR promotion vacancy board (PVB) or a special selection board (SSB) based on the January 2014 LTC Department of the Army (DA) Mandatory Promotion Selection Board as a "below the zone look."

2.  The applicant states she has served the country honorably mobilizing four times with three mobilizations after 9-11.  She sought positions of increasing responsibility to include taking command positions even when in a lower rank.  The majority of her Officer Evaluation Reports (OERs) are above center of mass.  

   a.  She was selected for promotion to LTC by a September 2013 PVB but did not receive this promotion because the position she applied for had been downgraded [organization force reduction and realignment] and she was told she had to decline the promotion.  She requested assignment to any vacant LTC position but was told that it was not possible by personnel at the U.S. Army Human Resources Command (HRC).

   b.  At the same time her below the zone mandatory LTC board was meeting, HRC advised that she was not considered because her records showed she was in a "selected with promotion pending" status, even though HRC were the ones telling her she could not be promoted under the PVB results due to no authorized position based on a table of organization and equipment (TOE) grade reduction.

   c.  When her promotion status was not cleared up in a timely manner she requested consideration by an SSB.  She was informed that SSB's were not available to "below the zone" personnel because they were basically a "free look," not a mandatory promotion review.  She believes that the denial of her review for a below the zone consideration is an injustice.

3.  The applicant provides –

* emails related to the PVB
* emails related to the SSB consideration
* her request for an SSB
* email from HRC declining an SSB consideration
* memorandum requesting PVB 
* PVB promotion declination letter

CONSIDERATION OF EVIDENCE:

1.  The applicant, with prior enlisted service, was commissioned a U.S. Army Reserve (USAR) 2nd lieutenant on 25 September 1997.

2.  She was promoted to 1st lieutenant on 25 September 1999, captain on 22 January 2004, and major (MAJ) on 30 June 2009.

3.  Of the applicant's 20 OER's, she was rated at center of mass 5 times and above center of mass 8 times.  She was rated best qualified on 5 of the OER's that had no rankings due to being her being the only officer or only one of two rated.  She has one Field Grade Plate (FGP) OER that rated her as "excels."  Of the 5 OER's as a MAJ, 2 are center of mass, 2 are above center of mass, and the one FGP OER rates her as "excels." 

4.  She was ordered to active duty in support of Operation Enduring Freedom on three occasions –

* from 14 January 2002 through 13 January 2003 with service in Cuba 
* from 23 February 2003 through 22 January 2004 with service at Fort Riley, KS
* from 22 January 2011 through 24 January 2012 with service in Iraq from 17 March 2011 through 5 October 2011 and in Kuwait from 6 October 2011 through 15 December 2011

5.  Among her most significant awards are the Bronze Star Medal and Meritorious Service Medal (4th award). 

6.  A Reserve Component PVB was convened in September 2013.  The applicant was considered for an LTC position by this board.

7.  Department of the Army LTC Mandatory Promotion Selection Boards for fiscal year (FY) 2014 convened on or about 13 January 2014.  

8.  On 14 January 2014, the applicant was notified via email that she had been recommended for promotion to LTC by the PVB.

9.  A 17 January 2014 email indicated that the applicant had been moved from the slot for which she had been considered by the PVB.  It was recommended that she be returned to the original slot.

10.  On 23 January 2014, she was notified she would not be promoted because the vacancy position was downgraded to a MAJ position.

11.  An 11 March 2014 email indicates that the applicant's records still showed her to be in a pending promotion status based on the PVB.

12.  On 1 May 2014, HRC advised the applicant that she needed to formally decline the PVB promotion. 

13.  HRC provided an advisory opinion to the Board recommending denial of the applicant's request.  It was noted that there was no provision for affording an officer an SSB if the sole reason was for a below the zone look for a mandatory DA promotion.  

14.  A copy of the advisory opinion was sent to the applicant and she did not respond.

15.  Army Regulation135-155 (Army National Guard (ARNG) and USAR – Promotion of Commissioned Officers and Warrants Officers Other Than General Officers) prescribes policies and procedures governing promotion of ARNG and USAR commissioned officers to include processing PVBs and SSBs.  

	a.  PVBs are held to fill authorized troop program unit vacancies through promotion of the best qualified and geographically available officers.  The position vacancy must be in the next higher grade in the TOE or table of distribution and allowances (TDA).  USAR PVBs are designed to promote officers to fill vacancies in USAR units that cannot be filled by local commanders with qualified officers of the authorized grade. 

   b.  SSBs will be convened to reconsider officers who are either improperly omitted from consideration due to administrative error or who were non-selected for mandatory promotion as a result of material error.  SSBs are conducted as an additional duty of regularly scheduled mandatory Reserve of the Army selection boards for the same competitive category.  
   
16.  Title 10, United States Code, Section 14502 provides for an SSB to be afforded officers not considered because of administrative error from in or above the established zones for consideration by a mandatory promotion board.  
   
DISCUSSION AND CONCLUSIONS:

1.  The DA mandatory selection board convened on 13 January 2014, the day before she was notified of her PVB selection.  The available evidence does not show whether or not her file was forwarded to the DA board or was pulled due to her being on the PVB selection list.

2.  The applicant was notified of her selection by a PVB for promotion to LTC on 14 January 2014.  Unfortunately, in the process of finalizing this selection, it was found that there were two problems.  First, she was no longer in the position for which she had been selected and, more importantly, the position she was selected to fill was downgraded to the authorized grade of MAJ.  With the position no longer requiring an authorized TOE grade of LTC, the applicant could not be promoted.

4.  The applicant was not eligible for transfer to any vacant position to accept a promotion under the PVB selection criteria since the PVB links a given officer to a designated unit vacancy based on TOE grade and branch criteria, not to general promotion qualifications. 

5.  SSB's are for consideration/reconsideration of officers in or above the zone of consideration for promotion.  There is no provision of law to allow a below the zone officer an SSB. 

6.  Therefore, it would not be appropriate to grant the applicant either the ability to transfer to a different vacant LTC position and promote her or to afford her an SSB.

7.  Regrettably, there are some situations for which there is truly no equitable relief for an applicant, this is one such case.  This action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of her service in arms. 

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)                                         AR20140011859



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ABCMR Record of Proceedings (cont)                                         AR20140011859



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