BOARD DATE:	  21 January 2010

		DOCKET NUMBER:  AR20090011767 


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 his date of rank (DOR) to captain be adjusted to 1 July 1999 and that his DOR to major be adjusted to 8 August 2005. He requests all back pay based on these adjustments. 

2.  The applicant states, in effect, that the error occurred when he transitioned from active duty to the Army National Guard (ARNG).  His promotion orders to captain were published by the U.S. Total Army Personnel Command showing his effective date of promotion was 1 July 1999 with a DOR of 1 July 1999.  However, the orders were published during his transition and he never received the promotion order nor did his ARNG unit.  The West Virginia Army National Guard (WVARNG) promoted him to captain but did not use the DOR of 1 July 1999.  He states that his attempt to get his chain of command to make this correction was unsuccessful. 

3.  The applicant provides the following documents in support of his application:

	a.  U.S. Total Army Personnel Command Orders Number 162-057, dated 11 June 1999;

	b.  a memorandum from National Guard Bureau (NGB), dated 13 December 2001;

	c.  Joint Forces Headquarters Indiana, Orders 327-497, dated 23 November 2007;


	d.  DA Form 2823 (Sworn Statement), dated 26 June 2009;

	e.  two memoranda prepared by the applicant, subject: Request for Information from Joint Task Force Headquarters, IN ARNG, dated 24 September 2007 and 2 July 2008;

	f.  an excerpt from the U.S. Army Human Resources Command, subject:  Army Officer Special Selection Boards for Promotion Consideration (Omissions) printed on 31 July 2007; 

	g.  a memorandum, dated 24 June 2009, subject: Correction of DOR and Back Pay; and

	h.  a copy of Army Board for Correction of Military Records (ABCMR) Docket Number AR20090011767, 16 April 2009.

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 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.  After completing the requirements for the officer accession program through the Reserve Officers' Training Corps (ROTC), the applicant was commissioned as a second lieutenant in the Infantry of the U.S. Army Reserve (USAR) on 20 May 1995 with a DOR of 20 May 1995.  He entered active duty and was trained as an Infantryman.  He was promoted to first lieutenant effective 3 June 1997.

3.  The applicant was considered and recommended for promotion to captain by the 1999 Active Duty List (ADL) Promotion Board.  On 11 June 1999, the U.S. Total Army Personnel Command published Orders Number 162-057 promoting the applicant to the rank of captain with an effective date of 1 July 1999 and with a DOR of 1 July 1999.  These orders stated the promotion is in the component in which the officer is serving and the promotion is not valid and will be revoked if the officer concerned is not in a promotable status on the effective date of the promotion. 

4.  On 23 June 1999, the applicant was honorably released from active duty and transferred to the USAR Control Group (Reinforcement) upon completion of his required active service.  He was issued a DD Form 214 (Certificate of Release or Discharge from the Army) that shows he completed 4 years, 1 month, and 4 days of active service during this period.  The following information is from this DD Form 214:

	a.  item 4a (Grade, Rate, or Rank) shows the entry "1LT";

	b.  item 4b (Pay Grade) shows the entry "O2"; and

	c.  item 12h (Effective Date of Pay Grade) shows the entry "1997 06 03."

5.  On 3 November 2000, he transferred from the USAR to the WVARNG.  He was appointed in the WVARNG as a first lieutenant effective 3 November 2000.

6.  On 13 December 2001, the NGB issued Special Orders Number 348 AR promoting the applicant to captain in the WVARNG with an effective date of 13 December 2001 based on a unit vacancy promotion.

7.  The applicant was selected for promotion to major by the 2007 Major Army Promotion List (APL) Board.

8.  The State of Indiana Joint Forces Headquarters published Orders 327-497 on 23 November 2007 promoting the applicant to the rank of major effective 14 November 2007.  This order shows that the date, 14 November 2007, is lined through and the date of 8 February 2008 is hand stamped next to this date.  There is no corrected copy of this order available in the applicant's official military personnel file (OMPF).  This order further stated that the individual will not be paid nor wear the insignia of the grade to which promoted until Federal Recognition is received. 

9.  On 12 February 2008, the NGB promoted the applicant to major with an effective date and DOR of 8 February 2008 by publication of Special Orders Number 45 AR.

10.  As evidence to support his application, the applicant provided memoranda, dated 24 September 2007 and 2 July 2008 whereby he requested that his chain of command correct his captain DOR.  In his memoranda to the WVARNG Headquarters, Office of the J1, he outlined the aforementioned administrative errors concerning his DOR to captain to include stating that in June 2007 he found his initial Department of the Army (DA) promotion order to captain filed in his Personnel Electronic Records Management System (iPERMS) file.  He stated that if his DOR to captain were corrected to 1 July 1999, he would have been considered and promoted to major in August 2005 by a DA Reserve Component Board. 

11.  A colonel in a command position provided a memorandum of support for the applicant.  The colonel states his opinion is based on 7 years of direct and indirect observation of the applicant.  The colonel indicated that he supported the applicant's request and recommended favorable consideration.  The colonel predicates his recommendation on the assumption that the applicant would have been a first-time selectee to major if his DOR to captain had been administratively correct based on the ADL promotion selection to captain.  He states this error occurred during the applicant's transition from active duty to the WVARNG.  He states, based on his 32 years of experience, the applicant would have been a below the zone selectee for promotion to major.  A favorable correction of the applicant's record would make him whole in terms of future promotion opportunities and lost income.

12.  In the preparation of this case, the NGB, Personnel Division, provided an advisory opinion.  The recommendation was to approve the applicant's request for an adjustment of his DOR to captain based on the ADL promotion order which had initially established his DOR as 1 July 1999; to amend Federal Recognition Special Order Number 239 AR, dated 8 December 2000, to show he transferred from the USAR as a captain; and revoke Federal Recognition Special Order Number 348 AR, dated 13 December 2001.  The opinion did not address the applicant's second request to adjust his DOR to major.  

13.  This advisory opinion was provided to the applicant who responded by memorandum on 23 September 2009.  In his memorandum, he requested that his DOR to major also be favorably adjusted based on the NGB recommendation to adjust his DOR to captain for without adjusting his DOR to major there would be little value in correcting his DOR to captain for it would not posture him to effectively compete for lieutenant colonel with his peers.  In effect, he states that his promotion to major by a Reserve Officer Personnel Management Act (ROPMA) board was delayed due to an administrative error based on not being promoted to captain with a DOR of 1 July 1999.  He states that if his record had been reviewed on time, he would have been selected for promotion to major based on his record of accomplishments and above average performance highlighted in his officer evaluation reports, his duty assignments, and endorsements from his commander.

14.  The applicant further states in his rebuttal memorandum that there is a precedent for the ABCMR to favorably grant his three requests.  He states that Army Docket Number AR20090011767 established this precedence for the ABMCR decision awarded a correction to an officer's DOR, effective time in grade, and missed back pay as if the officer's career had not been disrupted from his normal career progression by an administrative error.  

15.  In Army Docket Number AR20080016401, the Board concluded that there was sufficient evidence available to confirm that the applicant, in this case a medical doctor, was eligible for consideration for promotion to major based on his adjusted DOR to captain.  The medical doctor's DOR to captain was adjusted based on application of constructive service credit for medical school.  He also was selected for promotion to major by a special selection board. 

16.  In support of his rebuttal memorandum, the applicant sought legal assistance from a Staff Judge Advocate.  Counsel states, in effect, that the NGB properly recommended adjusting the applicant's DOR to captain to 1 July 1999.  Based on this recommendation, counsel states there is a need to also adjust the applicant's DOR to major so as to ensure he is competitive with his peers.  As evidence, counsel states that the applicant was selected for major at the first opportunity when a promotion selection board reviewed his record, and based on the board's recommendation an earlier board would have surely selected the applicant for major.  In effect, counsel states that the administrative error improperly caused the applicant to be paid at a lower rank than he deserved.  Further, without adjusting the applicant's DOR to major he would be 30 months beyond the date he should have been considered.  Counsel also noted that relief was granted in a similar ABCMR case, AR20080016401.

17.  Army Regulation 600-8-29 prescribes the policies and procedures for promotion of active duty officers.  This regulation states that to be considered for promotion, an officer must be on the ADL on the date the board convenes.  An officer must have completed a minimum 2 years time in grade as a first lieutenant to be promoted to captain.  Commissioned officers are promoted from promotion lists in order of seniority (shown by the promotion sequence number) as additional officers are needed within each competitive category.  Promotions would be announced in Headquarters, Total Army Personnel Command (PERSCOM) orders.  

18.  Army Regulation 135-155 (Promotion of commissioned Officers and Warrant Officer Other Than General Officers for Army National Guard and U.S. Army Reserve) prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that an active duty officer, who is selected for promotion but removed from the ADL and placed in an active Reserve status prior to promotion, is not eligible for that promotion and that officer will be placed on the Reserve Active Status List (RASL) and considered for promotion by a Reserve promotion board.  An officer serving in the IRR selected for the first time for promotion to the next higher grade may be promoted on the date that he completes the maximum time in grade.  The maximum time in grade requirement to captain for a Reserve component officer is 5 years as a first lieutenant and for major it is 7 years time in grade as a captain.

19.  Title 10, U. S. Code, section 14317(c), provides that an officer who is on the active-duty list and is on a promotion list and who, before being promoted is removed from the active-duty list and placed on the reserve active-status list of the same armed force and in the same competitive category, shall be placed on an appropriate promotion list.

DISCUSSION AND CONCLUSIONS:

1.  Based on the evidence of record, the applicant is not entitled to have his record corrected to show his captain DOR was 1 July 1999 as he contends. 

2.  The applicant was voluntarily separated from active duty on 23 June 1999, seven days before his active-duty list promotion effective date to captain.  When he separated, he was a first lieutenant with a DOR of 3 June 1997 and he should have been placed on the Captain Reserve Component Active-Status List with a projected promotion date of 2 June 2002 based on 5 years maximum time in grade as a first lieutenant.  

3.  As the applicant was not on active duty on 1 July 1999, he was not eligible for promotion to captain on the active-duty list.  He was properly transferred to the WVARNG in the rank of first lieutenant.  He was then promoted to captain with a unit vacancy promotion before the mandatory maximum years in the lower grade criteria for promotion to the next higher grade.  In fact, his promotion to captain was on 13 December 2001.  That was 5 months and 21 days prior to the projected promotion date of 2 June 2002 he would have received had he been promoted in accordance with the provisions for basing his promotion on his ADL promotion list status.  Therefore, the applicant has not been disadvantaged nor has he lost income due to the alleged administrative error.

4.  Being that the applicant's DOR to captain is not being adjusted, there is no evidence to support his second contention that his DOR to major should be adjusted to 8 August 2005.  Therefore, there is no basis to provide him back pay. 


5.  The applicant and his counsel provided an ABCMR decision that they assumed set precedence.  An ABMCR case does not establish precedence.  Each case is considered on its own merit.  However, it is noted that the case cited concerned a medical doctor whose DOR was adjusted under the rules for constructive service credit and he had been selected for promotion by a Special Selection Board.   

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ___x____  ___x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.  


      _______ _   __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)                                         AR20090011767



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ABCMR Record of Proceedings (cont)                                         AR20090011767



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