IN THE CASE OF: BOARD DATE: 1 May 2014 DOCKET NUMBER: AR20140000187 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, promotion to major (MAJ) in the U.S. Army Reserve (USAR). 2. The applicant states: * he was selected for promotion to MAJ in August 2003 but he did not receive his promotion orders * his battalion commander with the 2nd Battalion, 381st Regiment in Grand Prairie, TX refused to double slot him in a MAJ position because he (the battalion commander) believed the applicant was separating anyway * he requested a transfer to another unit that accepted him but his battalion commander blocked that move, again because he believed the applicant was separating anyway * the promotion mattered to him because he earned it and his intent was to rejoin the USAR as soon as his civilian employer's policy toward USAR service changed * he believes his battalion commander was the sole reason behind not pinning on the rank of MAJ before separating in February 2004 * he decided to rejoin the USAR in November 2013 but his entry grade was that of captain (CPT) * he believes it is inconsiderate and unjust to require him to be considered by another MAJ board when he had already been selected for promotion * he feels his leader had failed him and because of the lack of interest or concern, he set his career backwards 3. The applicant provides: * Promotion list for MAJ, Army Promotion List (APL), dated 5 August 2003 * Army Reserve Personnel Command Form (ARPC) 155-R (Promotion Qualification Statement) * General Officer congratulatory letter * DA Form 4651-R (Request for Reserve Component Assignment or Attachment) * Request to the U.S. Army Human Resources Command (HRC) for consideration by a special selection board CONSIDERATION OF EVIDENCE: 1. Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer and entered active duty on 14 June 1992. He completed the Military Police Officer Basic Course. 2. He served in a variety of stateside or overseas assignments and he was promoted to CPT on 1 June 1996. He was honorably discharged from active duty on 15 October 1997 for miscellaneous and/or general reasons. 3. He executed an oath of office and was appointed as a Reserve commissioned officer of the Army on 17 October 1997. He completed the Military Police Advanced Course in 1996 and the Military Intelligence Transition Course in 2001. 4. He was assigned as an Observer/Controller to the 2nd Battalion, 381st Regiment, 4th Brigade, 75th Division (Training Support (TS)), Grand Prairie, TX. 5. He provides a memorandum, dated 5 August 2003, from the Assistant Chief of Staff, G-1, 75th Division (TS), informing him of the results of the 2003 Department of the Army Reserve Component Selection Board (RCSB) for MAJ, APL, that was held between 3 March and 4 April 2003. He was recommended for promotion to MAJ. 6. He provides: a. A congratulatory letter from the Commanding General, Fifth U.S. Army, Fort Sam Houston, TX. b. An ARPC Form 55-R, signed by himself on 7 August 2003, indicating that having been informed of his selection for promotion to the higher grade, he accepted the promotion. His battalion commander verified his information (medical, security, fitness) and signed the form on 20 September 2003. c. A DA Form 4651-R, dated 20 August 2003, requesting voluntary reassignment, attachment, or transfer from the 2nd Battalion, 381st Regiment, to the Simulation Exercise Group, 2nd Brigade, 75th Division (TS), Fort Sill, OK, to work as a staff officer in a MAJ position with an immaterial specialty. 7. It is unclear what transpired between the date of his selection for promotion and the next several weeks. It is equally unclear if his ARPC Form 55-R or DA Form 4651-R was submitted, endorsed, and/or acted upon. 8. On 14 January 2004, Headquarters, USAR Command, Fort McPherson, GA, published Orders 04-14-00027 honorably discharging him from the USAR effective 14 February 2004 in accordance with Army Regulation 135-175 (Separation of Officers), with no particular paragraphs or chapter indicated. 9. In March 2013, he submitted a new application for appointment as a Reserve commissioned officer in the USAR. 10. On 1 November 2013, after having been scrolled on 1 August 2013, he was issued an appointment memorandum as a Reserve commissioned officer of the Army in the rank of CPT, effective 16 November 2013, the date he executed the oath of office. 11. An advisory opinion was received from HRC on 12 February 2014 in the processing of this case. An HRC official recommended disapproval of the applicant's request. The official stated: a. According to the applicant's promotion history, he was considered and subsequently recommended for promotion by the Fiscal Year 2003 (FY03) RC, MAJ, APL, Promotion Selection Board (PSB) which was approved on 17 July 2003 and released on 7 August 2003. He was eventually discharged from military service on 14 February 2004 based on voluntary unqualified resignation. b. He was reappointed back to the USAR on 1 November 2013. Unfortunately, in accordance with Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers), paragraph 2-6, an officer removed from an active status before the promotion is final (i.e., the effective date of promotion) will be removed from the promotion list. Removal will not constitute a non-selection. However, if the respective officer is later returned to an active status, the officer's name will not be placed on a promotion list or nominated for promotion unless again recommended by a subsequent selection board at least one year from his/her return to an active status. c. The applicant's assertion that his previous battalion commander "would not double slot him so that he could be promoted" is moot. Based on guidance established in Army Regulation 135-155, paragraph 4-9a(1) or (3), a USAR troop program unit (TPU) officer must either fill a vacancy in the unit in the higher grade or fill an authorized position per Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) to get promoted and remain in a TPU status without getting transferred to the Individual Ready Reserve (IRR) for promotion at the maximum promotion eligibility date (PED). Double slotting fails to meet either criteria. First, the position is not vacant because it already has another officer assigned to it. Second, double slotting is not an authorized practice by Army Regulation 140-10 except for deploying elements per Army Regulation 140-1 (Mission, Organization, and Training), paragraph 2-5. Finally, the Officer Promotion Proponent will not produce promotion orders unless the applicable officer is the sole individual occupying an authorized position unless the billet is authorized more than one fill accordingly. 12. The applicant was provided with a copy of this advisory opinion on 19 February 2014 but he did not respond. 13. Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve officers. a. Paragraph 2-6 (Inactive and active status) states an officer removed from an active status before promotion is final (the effective date of promotion) will be removed from the promotion list (para 3-17). Removal will not be considered a non-selection. If returned to an active status, the officer’s name will not be placed on a promotion list or nominated for promotion unless again recommended by a selection board. An officer returned to an active status after having been in an inactive or retired status will not be considered for a Reserve of the Army promotion (mandatory or USAR position vacancy) until at least 1 year after the date of return to an active status. b. Paragraph 4-9 (Officers selected for promotion) states a USAR TPU officer who is considered and selected by a mandatory promotion board will be promoted and transferred from the unit to the IRR. The officer will be promoted within 60 days of receipt of promotion notification or the normal established promotion eligibility date, whichever is later. Transfer to the IRR will not occur when the officer (1) fills a vacancy in the unit in a higher grade and/or (3) is in an authorized position per Army Regulation 140-10. 14. Army Regulation 140-1 provides policy guidance on the mission, organization, and training of the USAR. Paragraph 2-5 explains the overstrength policy. 15. Army Regulation 140-10 prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers. DISCUSSION AND CONCLUSIONS: 1. The applicant was appointed as a Reserve commissioned officer of the Army in the rank of CPT on 17 October 1997. He was considered by and subsequently recommended for promotion by the FY03 RC, MAJ, APL, PSB which was approved on 17 July 2003 and released on 7 August 2003. He was eventually discharged from military service on 14 February 2004 based on voluntary unqualified resignation. 2. Since he was never assigned to a higher position, he remained ineligible for this promotion in his TPU. Additionally, since he was discharged based on his voluntary unqualified resignation - and thus removed from the reserve active status list - he was not transferred to the IRR and as such could not get promoted on his PED. Therefore, he was removed from the promotion list. Once he was removed, he was no longer in a promotable status. 3. The fact that he was reappointed in November 2013 is irrelevant. By regulation, if the respective officer is later returned to an active status, the officer's name will not be placed on a promotion list or nominated for promotion unless again recommended by a subsequent selection board at least one year from his return to an active status. 4. In view of the foregoing evidence, the applicant 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) AR20140000187 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140000187 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1