IN THE CASE OF:	  

		BOARD DATE:	  27 August 2009

		DOCKET NUMBER:  AR20090002092 


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 adjustment in his promotion eligibility date/date of rank (DOR) to first lieutenant from 20 May 2003 to 12 April 2002 and adjustment to his promotion eligibility date/DOR to captain from 31 May 2007 to 12 April 2006 in the Texas Army National Guard, with entitlement to all pay and allowances.

2.  The applicant states it was his assumption that when his effective DOR to second lieutenant was corrected based on a previous Army Board for Correction of Military Records (ABCMR) Proceedings, that consideration would be given for his time in service/time in grade for promotion to first lieutenant.  Since it was not, his promotion to both first lieutenant and captain were delayed. 

3.  The applicant provides a DA Form 1059 (Service School Academic Evaluation Report) for Officer Basic Course 00102 and a memorandum for promotion to first lieutenant in support of this application.  The listed ABCMR Proceedings (Docket Number AR 2002074026) and promotion order number 122-1100 were not attached. 

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 applicant’s 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 applicant’s 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 records show the effective date of his initial appointment and DOR of 1 December 2001 to second lieutenant were adjusted to 7 August 1999 based on the approved recommendation of the ABCMR.

3.  The applicant completed the Field Artillery Officer Basic Course on 12 April 2002.  At that point he met the time in grade and military education requirements as listed in Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), table 2-1 and table 2-2 for promotion to first lieutenant.  The applicant's records show he was promoted to first lieutenant in the Texas Army National Guard effective 20 May 2003.

4.  In the processing of this case, on 18 June 2009, an advisory opinion was obtained from the National Guard Bureau (NGB), Personnel Division.  The advisory official recommended approval of the applicant's request to adjust his DOR and promotion effective date to first lieutenant from 20 May 2003 to 12 April 2002 and disapproval of his request to adjust his DOR and promotion effective date to captain from 31 May 2007 to 12 April 2006.  The advisory official recommended the applicant's records be submitted to a Special Selection Board for promotion consideration to captain under the Calendar Year (CY) 2005 criteria based on an adjustment of his first lieutenant DOR.
 
5.  The advisory official cites Army Regulation 135-155, chapter 3, paragraph
3-19a which states, in pertinent part, that officers who have either failed selection for promotion or who were erroneously not considered for promotion through administrative error may be reconsidered for promotion by either a promotion advisory board or a special selection board, as appropriate.

6.  The advisory opinion was forwarded to the applicant on 23 June 2009 for information and to allow him the opportunity to submit comments or a rebuttal.  He concurred with the NGB's recommendation for adjusting his DOR to first lieutenant to 12 April 2002.  However, he nonconcurred with the recommendation for disapproval of his request for adjustment of his DOR to captain to 12 April 2006.  He states that he believes Army Regulation 135-155, chapter 3, paragraph 3-19a does not address situations where an error caused an officer to not fall into the zone of consideration and therefore requests that the ABCMR grant both of his requests.

7.  The applicant's records show he was extended Federal recognition and was promoted to captain in the Texas Army National Guard, effective 31 May 2007.

8.  Army Regulation 135-155, paragraph 3-19d(2), states that special selection boards, convened under the Reserve Officer Personnel Management Act (ROPMA), will reconsider commissioned officers, who were erroneously not considered on or after 1 October 1996 when referral is requested by the ABCMR.

9.  Army Regulation 135-155, paragraph 4-21, states that unit officers selected by a mandatory board will have a promotion date and effective date no earlier than the date the board is approved or the date of Senate confirmation (if required), provided they are assigned to a position in the higher grade.  When the board approval or, if required, Senate confirmation is before assignment to the position in the higher grade, the effective date and the date of promotion will be the date of assignment to the higher graded position.

10.  Army Regulation 135-155, Table 2-1, shows that for promotion to first lieutenant, the minimum time in lower grade is 2 years and the maximum time is 42 months.  Table 2-1 shows that for promotion to captain, the minimum time in lower grade is 2 years and the maximum time is 5 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was promoted to first lieutenant on 20 May 2003.  Evidence indicates he met the requirements for promotion to first lieutenant on 12 April 2002 based on his adjusted DOR for second lieutenant.  As such, it would be appropriate to adjust the applicant's Federal recognition effective date, promotion effective date, and DOR to first lieutenant to 12 April 2002.

2.  The applicant's rebuttal to the NGB advisory opinion was carefully considered.  Evidence shows that based on an adjusted DOR to first lieutenant to 12 April 2002, the applicant's current DOR to captain is later than the maximum time in the lower grade for promotion to captain as prescribed in Army Regulation 
135-155, Table 2-1.  As such, the applicant's records should be submitted to a Special Selection Board (SSB) for promotion consideration to captain under the Calendar Year (CY) 2005 criteria.

3.  Based on the applicant's entitlement to an adjustment to his DOR to first lieutenant (and captain, if appropriate), he is entitled to any difference in pay that the correction will necessitate.

4.  In view of the foregoing, the applicant is entitled to have his records corrected as shown below. 
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 all Department of the Army records of the individual concerned be corrected by:

	a.  showing he was promoted to the rank of first lieutenant with an effective date and DOR of 12 April 2002 and granted Federal recognition effective that date; 

	b.  submitting his records to a duly constituted SSB for reconsideration for promotion to captain under the Calendar Year (CY) 2005 criteria; and

	c.  promoting him to captain if he is selected for promotion and assigning the appropriate date of rank or notifying him if he is not selected for promotion.

2.  The Board further recommends that based on the above corrections, the Defense Finance and Accounting Service should audit the applicant's pay account and pay him the difference in pay as a result of these corrections.

3.  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 an earlier promotion effective date and DOR to captain.



      __________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)                                         AR20090002092



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ABCMR Record of Proceedings (cont)                                         AR20090002092



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