IN THE CASE OF:	   

		BOARD DATE:	  30 April 2015

		DOCKET NUMBER:  AR20140012854 


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 date of rank (DOR) for promotion to lieutenant colonel (LTC)/O-5 be corrected to 30 September 2013 instead of the current DOR.

2.  The applicant states, in effect:

* he is a Troop Program Unit (TPU) officer who was selected for promotion to LTC by the fiscal year (FY) 2013 U.S. Army Reserve (USAR) promotion board in September 2013
* earlier, he had been selected by a General Officer Steering Committee (GOSC) to fill an O-5 billet
* due to Army error, he was instead assigned to an O-4 billet that had been downgraded from an O-5 billet
* as a result of the mistake in his assignment, he was unnecessarily held back from promotion, putting him 8 months behind his peer group
* in addition to losing 8 months pay and rank, he will be behind his peers when they are considered for promotion to colonel 

3.  The applicant provides:

* self-authored statement
* listing showing LTC Tenured TPU Positions, as of 25 September 2012
* Unit Manning Report (UMR) for the 11th Military Police (MP) Brigade (BDE), with a prepared date of 4 December 2012
* memorandum from the office of The Judge Advocate General (TJAG), dated 23 January 2013, subject:  Selection of Staff Judge Advocate (SJA), 11th MP BDE, Los Alamitos, CA
* 57-pages of emails
* FY 2013 U.S. Army Reserve (USAR) Judge Advocates (JA) Selected for Promotion to LTC
* memorandum from the office of TJAG, dated 10 April 2014, subject:  Selection as Team Chief, 6th Legal Operations Detachment (LOD), Joint Base Lewis-McChord, WA
* 2 sets of orders

CONSIDERATION OF EVIDENCE:

1.  Having had prior service in the U.S. Navy Reserve, the applicant was commissioned as a JAG Reserve officer in the rank/grade of first lieutenant/O-2.  He executed an oath of office on 8 February 1999.  He served in a variety of positions as a TPU officer.

2.  Order B-07-704888, dated 6 July 2007, issued by Headquarters, U.S. Army Human Resources Command (HRC) shows the applicant was promoted to major/pay grade O-4 with an effective date and date of rank of 13 June 2007.

3.  Orders 13-234-00006, dated 22 August 2013, issued by Headquarters, 88th Regional Support Command (RSC) showed the applicant was assigned to the 11th MP BDE effective 22 August 2013.

4.  On 30 September 2013, the applicant's name appeared as a selectee on the FY 2013 USAR promotion list, which was released for JAs to be promoted to LTC.  

5.  Orders 14-118-00029, dated 28 April 2014, issued by Headquarters, 63rd RSC, shows the applicant was assigned to the 6th JA Detachment.

6.  Orders B-06-403046, dated 6 June 2014, issued by HRC show the applicant was promoted to the rank of LTC effective 12 June 2014.

7.  The applicant provides a self-authored statement in which he explains his contention, essentially stating:

	a.  By Federal statute, all JAG assignments are controlled by TJAG.  TJAG selects and approves all tenured JA assignments, including those for the USAR.  These selections are made based upon recommendations from a GOSC.  Vacant and soon-to-be vacant positions are advertised typically 60 days before the GOSC meets to select JAs for positions.  The GOSC meets twice a year.
	
   b.  In June 2012, he had served 2 years as a BDE JA.  Recognizing he would reach the end of his tenure for that position in June 2013, he began looking for another position which entailed providing legal advice for a commander of a non-JAG unit.  He was seeking a LTC position because he knew he would be going before the FY 2013 O-5 selection board and upon selection would be required to be in a valid O-5 position for promotion.

	c.  In December 2012, he learned the GOSC would be considering JAs for the JA position with the 11th MP BDE, advertised as an O-5 billet.  As it was advertized as an O-5 billet, he applied.  He later learned this position had actually been downgraded as a result of the brigade commander position changing from brigadier general to colonel [mandated organizational force reduction and realignment].  Neither TJAG nor the GOSC were aware of this manpower change.  The applicant did not find out about this downgrade until June 2013.  

	d.  In September 2013, knowing the FY 2013 JA LTC promotion list would be released that month and that he was in an O-4 position, he began searching for an LTC position.  When he learned he was selected, he also was told he could not be promoted in his current O-4 position and would not be able to be promoted until he secured an O-5 billet.  He worked for months and was finally able to obtain a transfer.  He was told by his branch his date of promotion would be the date he was in an O-5 position.  He received a memorandum from his branch stating his tenure start date for the O-5 billet was 15 April 2014.  This was the date he understood he would be promoted.  In fact, he was not actually assigned to the position until 1 May 2014, and was not promoted until 12 June 2014.

	e.  An email from the TJAG Assistant G-1 (Tenure Management) states in pertinent part, for those currently sitting in an O-5 position, the effective date of promotion should be the day the O-5 promotion list was approved (30 September 2013).  Had he been placed in an O-5 position, as was thought to be the case by both TJAG and the GOSC, he would have been promoted to LTC/O-5 on 30 September 2013.

	f.  His concern is more than simply a loss of pay or not being in the higher rank.  The DOR cut-off for JAG promotion boards is typically April of any given year.  Because he remained in a promotable status until June 2014, he will be a full year behind those other selectees of the FY LTC JA 2013 promotion list who were promoted prior to the April cut-off.

	g.  His requested relief, adjusting his DOR to 30 September 2013, is simply intended to place him on equal footing with his peers.

8.  The applicant also provides:

	a.  LTC tenured TPU position list, dated as of 25 September 2012, showing an O-5 position as SJA, 11th MP BDE.

	b.  UMR, 11th MP BDE, dated as of 4 December 2012, showing an O-4 authorization position for the Command Judge Advocate.

	c.  Memorandum from the office of TJAG, dated 23 January 2013, showing the applicant was selected as the SJA for the 11th MP BDE, with tenure beginning 1 July 2013 and ending 30 June 2016.

	d.  Emails, covering the period 21 September 2013 to 2 May 2014, which essentially show the applicant's efforts to be placed in an O-5 billet.

	e.  Email, dated 23 September 2013, from the Career Manager, Plans, and Mobilization Officer, Reserve Personnel, Plans, and Training Office to the applicant in which he is told he will have to move to an O-5 position if selected for promotion.  He was also told being released from his current assignment would not be an issue.

9.  Memorandum, dated 8 October 2014, from HRC, subject:  Advisory Opinion Regarding Promotion to LTC for [applicant], states:

* the applicant's request is without merit
* the FY 2013 JA promotion list to LTC was approved on 30 September 2013
* the Office of Promotions promotes TPU officers based on either the date that officer is assigned to a position at the next higher grade or the maximum TIG, whichever comes first
* an AHRC Form 56-R (Promotion Qualification Statement) was never received for the applicant 
* the applicant's DOR reflects a date based upon his maximum TIG
* the Office of Promotions has no proof the applicant was in an O-5 billet on 30 September 2013



10.  The applicant responded to the memorandum from HRC, stating in effect:

* he wishes to clarify his issue was not with his promotion by HRC, but rather that his branch erred in that they mistakenly placed him in an O-4 billet; his branch thought, at the time, the position was an O-5 billet
* because of the branch's error, he was not promoted with, and will not be considered for the next higher grade, with his peers
* had he known the position in which he was placed had been downgraded, he would never have applied for it

11.  Army Regulation 135-155 (Army National Guard and U.S. Army Reserve - Promotion of Commissioned Officers and Warrant Officers other than General Officers) prescribes policy and procedures for the promotion of officers in the Reserve Component.  It states:

	a.  Table 2-1 the minimum TIG for promotion to LTC is 4 years as a major and the maximum TIG in the lower grade (major) is 7 years. 

	b.  Paragraph 4-9, a USAR TPU officer who has been selected by a mandatory promotion board will be promoted and transferred to the Individual Ready Reserve (IRR) provided there is no authorized higher graded position unless the officer is a JAG assigned to a position up to one grade below the grade to which promoted.

	c.  Paragraph 4-15 states the effective date of promotion for commissioned officers may not precede the date on which the promotion memorandum is issued.  Do not issue the promotion memorandum before the date the promotion board results are approved and confirmed by the Senate, if required.  The officer must be assigned/attached to a position in the higher grade.

	d.  Paragraph 4-17b defines DOR as the date the officer is actually or constructively promoted to a specific grade.  It is used to determine the relative seniority for officers holding the same grade.  

12.  Army Regulation 600-8-29 (Personnel General - Officer Promotions) defines effective date as the date of promotion for pay and allowance purposes.

13.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) provides the policy and procedures for assigning, attaching, removing and transferring USAR Soldiers.  Assignment of all JA is the responsibility of the TJAG as per Title 10, U.S. Code, section 806.  The TJAG will select officers to fill positions based on demonstrated performance, levels of responsibility in the military and civilian life, education completed, active duty service, combat duty, awards and decorations, staff and command experience, and overall suitability for assignment to a position of high responsibility and trust.  The JAG tenure for positions in U.S. Army Reserve Command, general officer commands or other major commands is limited to 3 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant argues his DOR should be adjusted to the date his promotion list, resulting from the FY 2013 mandatory promotion board, was approved (30 September 2013).  His basis for this argument is:

* the position had been downgraded as a result of reorganization and he did not learn of the change until shortly before the convening of the mandatory promotion board
* he was selected for promotion to LTC by the FY 2013 mandatory promotion board, but was unable to effect a change in position until 1 May 2014; he was promoted on 12 June 2014
* his peers who were in O-5 billets on 30 September 2013 were immediately promoted
* mandatory promotion boards normally consider eligible officers with DOR ending in April of any given year; because his DOR is in June, he effectively is a full year behind his peers
* the reason he was not promoted on 30 September 2013 was solely due to an error beyond his control; both TJAG and the GOSC believed the position to be an O-5 billet and selected him for it on that basis

2.  To be promoted by regulation, an officer must be in a position authorized to the next higher grade or reach the maximum TIG.  The fact that reorganization occurred, or that the GOSC was misinformed, does not mitigate this requirement.

3.  Notwithstanding the HRC advisory opinion, it is clear from the record and the evidence provided by the applicant that the intent of the TJAG GOSC was to place him in an O-5 billet and promote him upon selection by a mandatory promotion board.  Due to circumstances over which he had no control (Department of the Army force reduction and realignment), he was not promoted upon release of the promotion board results (the earliest date) and, as further aggravation, he has fallen a full year behind those peers who were already in an O-5 billet at the time the promotion list was released.  On that basis, and as a matter of equity, it would be appropriate to correct his DOR, but not his effective DOR, to be 30 September 2013, the date the list was released.  His effective DOR should remain 12 June 2014.


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 all Department of the Army records of the individual concerned be corrected to show his DOR (not effective DOR) pertaining to his promotion to LTC to be amended to show 30 September 2013.

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 amending the effective DOR to 30 September 2013 for promotion to LTC.




      _______ _   _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)                                         AR20140012854



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ABCMR Record of Proceedings (cont)                                         AR20140012854



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