IN THE CASE OF:	  

		BOARD DATE:	  30 July 2015

		DOCKET NUMBER:  AR20150004184 


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, that he be promoted to the rank of captain (CPT) and placed on the Retired List in the rank of CPT.

2.  The applicant states, in effect, while undergoing medical evaluation board (MEB)/physical evaluation board (PEB) processing at the Physical Disability Evaluation System (PDES), Walter Reed Army Medical Center from 24 April 2007 through 22 June 2008 he missed his mandatory promotion selection board which convened on 6 November 2007.  His rater and senior rater failed to notify him; however, he recently found the letter of notification.  Accordingly, he desires the Board to promote him to the rank of CPT and place him on the Retired List in that rank. 

3.  The applicant provides copies of his promotion board notification, a selection notice for a civilian position in the Maryland Army National Guard (MDARNG), orders discharging him from the MDARNG, his PEB proceedings, and active duty medical extension (ADME) orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as a United States Army Reserve (USAR) second lieutenant upon completing Officer Candidate School at Fort Benning, Georgia on 9 May 2002, with a concurrent call to active duty.  He deployed to Iraq during the period 1 April 2003 to 29 March 2004.

2.  On 8 May 2005, he was honorably released from active duty in the rank of first lieutenant due to completion of required service and was transferred to the USAR Control Group (Reinforcement).

3.  On 21 January 2006, he was appointed as a first lieutenant (1LT) in the MDARNG and on 13 July 2006 he was selected for a civilian traffic management position with the State of Maryland, Military Department. 

4.  On 19 April 2007, he was ordered to ADME for a period of 5 months and
26 days at Walter Reed Army Medical Center.

5.  On 5 June 2007, a memorandum was dispatched from the MDARNG Fifth Regiment Armory notifying the applicant of the 2007 1LT to CPT Department of the Army Mandatory Selection Board.

6.  On 4 March 2008, a PEB convened in Washington, D.C. which determined that the applicant suffered from the unfitting condition of PTSD and recommended that he be placed on the Temporary Disability Retired List with a 70% disability rating.

7.  On 22 June 2008, he was honorably discharged from the MDARNG and was retired in the rank of 1LT under the provisions of Army Regulation 635-40, paragraph 4-24B (2) due to disability, temporary.  He had served 15 years,         9 months and 6 days of active service.  On 23 June 2010, he was removed from the TDRL and he was permanently retired on 24 June 2010 with an 80% disability rating. 

8.  In the processing of this case a staff advisory opinion was obtained from the National Guard Bureau (NGB) which opines that the applicant met the prerequisites for promotion to the rank of CPT at the time the 2007 1LT to CPT Department of the Army Mandatory Selection Board convened and that it is plausible given his ADME status at the time that he did not receive the notification memorandum.  Accordingly, the NGB recommended that the applicant be placed before a Department of the Army Special Selection Board (SSB). 

9.  The advisory opinion was provided to the applicant for comment and to date no response has been received by the staff of the Board. 

10.  Army Regulation 600-8-29 (Officer Promotions) provides the policies and procedures for convening SSBs.  It provides that SSBs are formed to prevent an injustice to an officer or former officers who were eligible for promotion but whose records contained a material error when reviewed by the selection board.  A material error is defined in that regulation as one or more errors of such a nature that in the judgment of the reviewing official or reviewing body, caused an individual’s non-selection by a promotion board.  Had such errors been corrected at the time the individual being considered, a reasonable chance would have resulted in that the individual would have been recommended for promotion.  Headquarters will normally not determine that a material error existed if the administrative error was immaterial, if the officer exercising reasonable diligence could have discovered the error or omission, or if the officer could have taken timely corrective action by notifying officials at the Department of the error and providing any relevant documentation.

11.  Army Regulation 600-8-29 also provides that an officer under consideration may write to the selection board inviting attention to any matter of record deemed vital to their consideration.  Any written communication considered by a selection board will become a matter of record and will be maintained with the records of the board for 1 year.  Board members must take an oath that they will not divulge the proceedings or results thereof pertaining to the selection or non-selection of individual officers except to proper authority.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be promoted to the rank of CPT because he was undergoing medical processing and was unaware that a board was being convened has been carefully noted.  

2.  The available evidence supports his contention that he was not notified of the upcoming selection board due to undergoing medical processing that eventually led to his disability retirement.

3.  Accordingly, he should be afforded the opportunity to update his records as they existed at the time the 2007 1LT to CPT Department of the Army Mandatory Selection Board convened and be considered by an Army Special Standby Selection Board.

4.  In the event that he is selected for promotion, he should be promoted retroactively and placed on the Retired List in the rank of CPT with entitlement to all back pay and allowances. 






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 placing his records before an Army Special Selection Board for consideration under the criteria used by the 2007 1LT to CPT (APL) Department of the Army Mandatory Selection Board and if selected that he be promoted to the rank of CPT and placed on the Retired List retroactively with entitlement to all back pay and allowances.

2.  The Board further determined that the evidence presented was 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 promoting the applicant to the rank of CPT without consideration and selection by a selection board. 



      ____________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)                                         AR20150004184



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ABCMR Record of Proceedings (cont)                                         AR20150004184



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