IN THE CASE OF:
BOARD DATE: 18 December 2008
DOCKET NUMBER: AR20080014217
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 that his date of rank (DOR) to first lieutenant (1LT) be corrected to 21 May 2001, and his DOR to captain (CPT) be corrected to 21 May 2003.
2. The applicant states that he was entitled to automatic promotion to 1LT two years after his appointment to second lieutenant (2LT). The delay in his promotion to 1LT delayed his promotion to CPT by 6 months which, in turn, delays his promotion to major.
3. The applicant provides National Guard Bureau (NGB) Special Orders Number 294 AR, dated 23 November 2004; a memorandum for record, subject: Request Change of Time in Grade, dated 18 March 2003, in which the applicant requested his date of rank to 1LT be changed to 21 May 2001; NGB Special Orders Number 315 AR, dated 12 December 2003; NGB Special Orders Number 316 AR, dated 7 November 2001; and excerpts from his military records.
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted,
has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant's military records show that he was appointed a 2LT in the Army National Guard (ARNG) on 21 May 1999. He was promoted to 1LT effective 24 October 2001, and was promoted to CPT effective 12 December 2003.
3. The applicant is currently serving in the U.S. Army Reserve (USAR) as a CPT.
4. In the processing of this case an advisory opinion was obtained from the NGB. The NGB official recommends approval of the applicant's request to adjust his DOR to 1LT to 21 May 2001, but recommends disapproval of adjusting his DOR to CPT. The NGB official explains that National Guard Regulation (NGR) 600-100 requires a 2LT to be extended Federal recognition as a 1LT on the date he completes 2 years of time in grade provided they are fully qualified and recommended for promotion. As for the applicant's request to adjust his DOR to CPT, the NGB official states that the applicant was given a position vacancy promotion, which requires the DOR to be the date the scroll list is approved by the Secretary of Defense. The promotion effective date is not the date of appointment into the position or the date of the State Federal recognition board.
5. The applicant was provided a copy of the advisory opinion and submitted a rebuttal. In that rebuttal the applicant reiterated his contention that he would have been promoted to CPT earlier if he had been promoted to 1LT in a timely manner, and adds that he was serving on active duty in the Active Guard Reserve (AGR) program in a major slot at that time. The applicant continues by explaining what the current promotion policy is for Physician Assistants, and how the adjustment of his DOR to CPT will allow him to retain the rank of CPT when he transitions into the Medical Corps.
DISCUSSION AND CONCLUSIONS:
1. Since the governing regulation requires that a 2LT be afforded Federal recognition as a 1LT on the date he completes 2 years of time in grade, it would be appropriate to correct the applicant's records to show that he was promoted to 1LT on 21 May 2001.
2. As for the applicant's request to adjust his DOR to promotion to CPT, since he was promoted by a unit vacancy board, the effective date and DOR is required to be the date the scroll list is approved by the Secretary of Defense. There are no provisions to give an officer an earlier effective date or DOR.
3. While it is regrettable that the promotion provisions changed after the applicant's appointment, and that he may lose rank when he transitions into the Medical Corps, these matters of mitigation do not alter the requirement of giving an officer an effective date and DOR of the date the Secretary of Defense approves the scroll list containing the officer's name.
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 the state Army National Guard records and the Department of the Army records of the individual concerned be corrected, as appropriate, by showing that he was promoted to 1LT on 21 May 2001 with entitlement to any back pay as a result of this correction.
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 changing his DOR and effective date to CPT.
_________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) AR20080014217
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