IN THE CASE OF:	  

		BOARD DATE:	  17 August 2010

		DOCKET NUMBER:  AR20100014395 


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 correction of his military records to show he was appointed as a chaplain in the rank/grade of captain (CPT)/O-3 effective
8 March 1998 with a date of rank of 23 May 1995; to adjust his effective date and date of rank for major (MAJ)/O-4 to 23 May 2002; and to have his records considered by a Special Selection Board (SSB) for promotion to lieutenant colonel (LTC)/O-5, under the 2007 criteria.

2.  The applicant states the governing regulation provides that former commissioned officers will be appointed in the highest grade for which they qualify.  This is based on the total credit allowed.  There is no regulatory provision to reduce a commissioned officer just because he/she transfers from the Individual Ready Reserve (IRR) to the Army National Guard (ARNG).  Rank and time in grade follow the officer.

3.  The applicant provides the following documents:

	a.  U.S. Total Army Personnel Command, St. Louis, MO, memorandum, dated 1 March 1996;

	b.  Missouri ARNG (MOARNG) Orders 112-066, dated 10 June 1996;

	c.  National Guard Bureau (NGB) Special Orders Number 137, dated 19 July 1996;

	d.  U.S. Total Army Personnel Command memorandum, dated 30 January 1997;
	
   e.  NGB Form 89 (Proceedings of Federal Recognition Examining Board), dated 5 May 1997;

	f.  MOARNG Orders 081-013, dated 22 March 1998;

	g.  NGB Special Orders Number 72, dated 21 April 1998;

	h.  U.S. Army Reserve Personnel Command, St. Louis, Orders C-04-812943, dated 22 April 1998; 

	i.  NGB Memorandum, dated 7 May 1998;

	j.  NGB Special Orders Number 147, dated 20 August 1998;

	k.  DA Form 1059 (Service School Academic Evaluation Report), Officer Basic Course, U.S. Army Chaplain Center and School, dated 6 August 1999;

	l.  MOARNG Orders 254-010, dated 10 September 2000;

	m.  DA Form 1059 (Service School Academic Evaluation Report), Chaplain Captain Career Course, Phase 2, U.S. Army Chaplain Center and School, dated 29 April 2005; and

	n.  Diploma, Chaplain Captain Career Course, United States Army Chaplain Center and School, dated 29 April 2005.

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.  At the time of his application, the applicant was a chaplain in the rank of MAJ serving in the MOARNG.

3.  On 13 May 1988, the applicant accepted an appointment as a Reserve commissioned officer of the Army, Quartermaster Corps, in the rank of second lieutenant, pay grade O-1.  

4.  U.S. Army Personnel Command memorandum, dated 1 March 1996, shows the applicant was selected for promotion to CPT/O-3 in the U.S. Army Reserve (USAR), with a date of rank of 23 May 1995.

5.  NGB Form 89, dated 5 May 1997, shows that the applicant was found fully qualified and eligible for appointment to first lieutenant, Chaplain, in the MOARNG.   The effective date of his appointment was 8 March 1998.

6.  A DA Form 1059, dated 6 August 1999, shows that the applicant achieved course standards and completed the Officer Basic Course at the U.S. Army Chaplain Center and School, Fort Jackson, SC.

7.  MOARNG Orders 254-010, dated 10 September 2000, promoted the applicant to CPT/O-3, effective 13 September 2000.

8.  A DA Form 1059, dated 29 April 2005, shows that the applicant achieved course standards and completed the Chaplain Captain Career Course, Phase 2.

9.  Memorandum, NGB, dated 3 October 2005, informed the applicant's command of his promotion to major, pay grade O-4 with an effective date and date of rank of 3 October 2005.

10.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Division, NGB, Arlington, VA.

	a.  The advisory official recommended correction of the applicant's initial appointment [as a chaplain] to show he was appointed to CPT/O-3 with an effective date of 8 March 1998 and a date of rank of 23 May 1995.  This recommendation was based on Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army), paragraph "3-7(1)(d)" which states that Reserve Component commissioned officers of an Armed Force other than the Army [who are] approved for inter-service transfer may be appointed in the Reserve of the Army.  These officers will be given the same [pay] grade and date of rank as held in the former Armed Force.

	b.  The advisory official also recommended adjustment of the applicant's effective date and date of rank for MAJ to 29 April 2005, which is the date he completed the education requirement [Chaplain Captain Career Course] for promotion to MAJ.  The opinion further recommended that, if the first two recommendations were accepted, then the applicant's records should be forwarded to an SSB for promotion consideration to LTC/O-5, under the 2009 promotion criteria.

11.  The advisory opinion was forwarded to the applicant to allow him the opportunity to submit comments for a rebuttal.  On 30 June 2010, the applicant, in response to the advisory opinion, stated that he disagreed with that part of the advisory opinion that recommended adjustment of his effective date and date of rank for MAJ to 29 April 2005.  The applicant contends that if his original appointment as a chaplain had been as a CPT he would have been promoted to MAJ on 23 May 2002 upon completion of 7 years time in grade.

12.  Army Regulation 135-100, paragraph 3-7a(4) and Table 3-2 (Qualifying Periods), provides 1 year of service credit for each year of prior active commissioned service.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction of his military records to show he was appointed as a chaplain in the rank/grade of CPT/O-3, effective 8 March 1998, with a date of rank of 23 May 1995; to adjust his effective date and date of rank for MAJ/O-4 to 23 May 2002; and to have his records considered by an SSB for promotion to LTC/O-5 under the 2007 criteria.

2.  The available evidence clearly and convincingly shows that the applicant was appointed as a chaplain in the wrong grade resulting in a loss of pay and promotion eligibility.  Accordingly, his records should be corrected to show his initial appointment as a chaplain was in the rank of CPT, effective 8 March 1998, and that he retained his original date of rank of 23 May 1995.

3.  Notwithstanding the advisory opinion (which should have cited paragraph     3-7a(4) of Army Regulation 135-100, not paragraph 307(1)(d)), and as a matter of equity, the applicant's date for promotion to major should be adjusted to        29 April 2005.  However, this adjustment should not be based on his actual date of completing the Captain's Career Course, but rather on the realistic expectation that he would have completed this training at some point between 2000 and 2002 had he been correctly appointed as a chaplain in the rank of captain, pay grade O-3, in 1998.  Therefore, his records should be corrected to show that he completed this training on a date prior to 23 May 2002.
4.  Furthermore, as a matter of equity, the applicant's records should be corrected to adjust his effective date and date of rank for MAJ to 23 May 2002.

5.  Based on the above corrections, the applicant's records should be submitted to a duly constituted SSB for promotion consideration to lieutenant colonel, pay grade O-5, under the 2007 year criteria; or to additional SSB's for promotion to lieutenant colonel under the criteria for 2008 and 2009, until either selected for promotion or denied by a total of two boards.

BOARD VOTE:

____x____  ____x____  ___x_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for 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:

	a.  correcting his initial appointment as a chaplain to show his appointed rank as CPT with an effective date of 8 March 1998 and a date of rank of 23 May 1995;

	b.  correcting his records to show that he completed the education requirements for promotion to MAJ prior to 23 May 2002;

	c.  adjusting his promotion to MAJ to show an effective date and date of rank of 23 May 2002;

	d.  submitting his records to a duly constituted SSB for promotion consideration for LTC under the 2007 year criteria;

	e.  submitting his records to additional SSB's for promotion consideration to LTC under the criteria for each year from 2008 to 2009, until either selected for promotion or denied by each board;
	f.  showing his records are further corrected, if selected for promotion to LTC on his date of eligibility, as determined by appropriate Departmental officials, under the year criteria, provided he was otherwise qualified and met all other prerequisites for promotion;

	g.  notifying him, if he is not selected; and

	h.  auditing his military pay records and paying him any monies due him as a result of these corrections.





      _____________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)                                         AR20100014395



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ABCMR Record of Proceedings (cont)                                         AR20100014395



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