ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:  BOARD DATE:  13 February 2020 DOCKET NUMBER:  AR20190010245 


APPLICANT REQUESTS: 

.reconsideration of 2008 US Army Reserve (USAR) Colonel (COL) PromotionBoard

.immediate promotion to COL effective 2008

.back pay from promotion date of 2008 to today



APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record)

.five DA Forms 67-9 (Officer Evaluation Report (OER))

.Master of Business Administration Degree

.Certificate of Completion Command and General Staff College (CGSC)



FACTS: 

1.The applicant did not file within the three year time frame provided in Title 10, UnitedStates Code (USC), section 1552 (b); however, the Army Board for Correction ofMilitary Records conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file.

2.The applicant states:

.he requests reconsideration of the 2008 USAR COL promotion board

.he believes he was subjected to an injustice in that he was not selected forpromotion to COL for unknown reasons despite being fully qualified

.he requests immediate promotion to COL effective 2008 and back pay to thatdate

.he was educationally qualified with CGSC and completion of his


Masters Degree
.the last five OERs prior to the board contained four above center of mass andone center of mass

.one OER was as a battalion equivalent command in Afghanistan in 2004


.he was noted as the number one commander of 16 commanders rated by theTask Force Victory Commander

.there is no negative information in his file which could explain the mistakewhich resulted in his pass over

.he was unaware of the methods and means to correct the error until hesubmitted his application



3.The applicant's service records contain the following documents for the Board'sconsideration:

.a 20 year letter from USAR Personnel Command, dated 16 July 2003

.Orders Number 264-006 published by US Army Human Resources Command,dated 21 September 2010 amending his date of rank to Lieutenant Colonel (LTC)from 1 June 2003 to 19 July 2005



4.The applicant's service records are void of his promotion order to LTC and that hisname was on the Reserve Active Status List (RASL) or Active Duty List (ADL) forpromotion to COL.

5.The applicant provided the following documents for the Board's consideration:

a.Five OERs which show:

.period covered 7 August 2007 through 6 August 2008 outstandingperformance must promote, best qualified, above center of mass, select todayfor COL

.period covered 7 August 2006 through 6 August 2007 outstandingperformance must promote, best qualified, above center of mass, selectimmediately for promotion to COL

.period covered 7 August 2005 through 5 August 2006 outstandingperformance must promote, best qualified, above center of mass, should bepromoted on next board

.period covered 7 October 2004 through 6 October 2005 outstandingperformance must promote, best qualified, center of mass, should bepromoted

.period covered 31 October 2003 through 6 October 2004 outstandingperformance must promote, best qualified, above center of mass, considerhim for promotion



b.A diploma from The Montana University System showing he received a Master ofBusiness Administration on 9 December 1989. 

c.A CGSC Certificate of Completion dated 19 July 2002.

6.See applicable regulations below.

BOARD DISCUSSION: 

After reviewing the application and all supporting documents, the Board found that relief is not warranted. 

a.There is no evidence that the applicant complied with AR135-155 to submit arequest to HRC for reconsideration of his 2008 USAR COL promotion board. 

b.The ABCMR does not have authority to promote an officer to a higher grade.That can only be done through the recommendation of a Special Selection Board (SSB) and the approval of The President of the United States. 

c.While the applicant has presented his qualification documentation, he haspresented no evidence that there was any material error in his record considered by the 2008 US Army Reserve (USAR) Colonel (COL) Promotion Board warranting reconsideration by a SSB. 


BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

: : : DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 


X 

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. 




REFERENCES: 

1.Title 10, USC, section 1552(b), provides that applications for correction of militaryrecords must be filed within three 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 three-year statute oflimitations if the ABCMR determines it would be in the interest of justice to do so.

2.10 U.S. Code Section 14301 states, reserve officers are eligible for promotion if theyare currently on the RASL, have continuous service on the RASL or ADL for at leastone year, and are within or above his promotion zone or are below the promotion zoneand are determined to be exceptionally well-qualified for promotion based on criteria setby the Service Secretaries.  Selection boards may not consider an officer whose nameis on a promotion list as a result of an earlier selection board, an officer who isrecommended for promotion by an earlier board if the report has not yet been approved,an officer who has been approved for Federal recognition by a Title 32 board if thenomination is pending, an officer who has been nominated for promotion under anyother provision of law if the nomination is pending.

3.10 U.S. Code § 14303: Except for state adjutants general or Assistant adjutantsgeneral or positions or appointments based on a specific provision of law, the minimumTIG requirement for officers on the reserve active-status list (RASL) are O6 through O7:1 year.  Service Secretaries may adjust minimum TIG as needed.

4.Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant OfficerOther Than General Officers, states in Table 2-1 for promotion from LTC to COL theSoldier must have a minimum of 3 years’ time-in-grade.  Table 2-2 states for promotionfrom LTC to COL the Soldier must have completed “The Command and General StaffOfficers Course.”

a.Officers who discover that material error existed in their file at the time they werenonselected for promotion may request reconsideration. 

b.Send requests to CDR, HRC, Chief, Office of Promotions (RC),
ATTN: AHRC-MSL-NS, 9700 Page Avenue, St. Louis, MO 63132-5200. 

c.Reconsideration will normally not be granted when the error is minor or when theofficer, by exercising reasonable care, could have detected and corrected the error (see para 3-19f).  

d.Officers being reconsidered are not allowed the opportunity to correspond withthe special selection board.  The officer’s file will be constructed as it should have appeared on the convening date of the promotion board that failed to select the officer for promotion, or did not consider the officer because of administrative error.  

e.To determine if there is an error in the promotion file, the officer may request,within 2 years of the board recess date, a copy of his or her file, as considered by the mandatory Reserve of the Army selection board.  Send requests to CDR, HRC, Chief, Office of Promotions (RC), ATTN: AHRC-MSL-NS, 9700 Page Avenue, St. Louis, MO 631325200. 

f.If the report of a special selection board, approved by the President, recommendsfor promotion to the next higher grade an officer not currently eligible for promotion, or a former officer whose name was referred to it, the SA may act through the Army Board for Correction of Military Records (ABCMR) to correct the military record of the officer or former officer to correct an error or remove an injustice resulting from not being selected for promotion by the board which should have considered, or which did consider, the officer (10 USC 14502(e)(3)). 

5.The ABCMR may not appoint an officer to a higher grade.  That authority is reservedfor the President and has not been delegated below the Secretary of Defense.

6.The ABCMR may correct an officer's date of rank/effective date of rank when aproper appointment has already occurred.

a.Title 10 USC 624 and 741 provide for situations in which properly appointedofficers are provided "backdated" dates of rank and effective dates to remedy errors or inequities affecting their promotion. The authority to remedy these errors or inequities is given to the Service Secretaries. 

b.DODI 1310.01 (23 August 2013) provides that a Service Secretary may"adjust the date of rank of an officer ... appointed to a higher grade ... if the appointment of that officer to the higher grade is delayed by unusual circumstances." 

c.What constitutes "unusual circumstances" will, generally, be for the Board todetermine based on the available evidence, which often includes an advisory opinion. 

d.There may be cases (specifically correction of constructive credit that affectsoriginal appointment grade) where relief is not possible because an appointment to a higher grade has not yet occurred. In those cases, the Board should be advised of the limits of its authority.  The Board may also be advised that the applicant can submit a request for reconsideration after he or she has been appointed to a higher grade. 


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