BOARD DATE:	  3 January 2012

		DOCKET NUMBER:  AR20110000294 


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 records to show he retired in the rank of captain (CPT) vice first lieutenant (1LT).

2.  The applicant states he was in constant communication with official at the U.S. Army Human Resources Command (HRC) regarding his promotion but the communication was abruptly halted.  His promotion process was in motion but it was delayed.  He held the rank of CPT upon his transfer to the Retired Reserve.

3.  The applicant provides:

* Promotion memorandum, dated 18 July 2006
* Newsletter from the Connecticut Army National Guard (CTARNG)
* Honorable Discharge Certificate
* Retired Reserve orders
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* ARNG Honorable Discharge Certificate

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 was born on 7 September 1963.

3.  Having had prior enlisted service, he was appointed as a second lieutenant in the CTARNG and executed an oath of office on 28 August 1997.  He completed the Army Medical Department Officer Basic Course from 22 March to 4 June 1999.

4.  On 29 September 1999, the CTARNG published official orders promoting him to 1LT.  This was followed by the NGB issuing Special Orders Number 213 AR, extending him Federal recognition for promotion to 1LT effective 29 September 1999.

5.  He entered active duty on 22 February 2001 and subsequently served in Bosnia and Hungary as a Field Medical Assistant.  He was honorably released from active duty on 22 October 2001 to the control of the CTARNG.

6.  He entered active duty on 7 December 2003 and he subsequently served in Kuwait/Iraq from February 2004 to February 2005.   

7.  While on active duty, he was considered for promotion to CPT by the Reserve Components Selection Board (RCSB) that convened on 21 January 2004 but he was not selected for promotion.  

8.  On 1 June 2004, the CTARNG issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

9.  On 27 December 2004, the CTARNG published Orders 256-019 reassigning the applicant from his position as a Field Medical Assistant (1LT position) to the position of Medical Operations Officer (CPT position), 118th Medical Battalion, Newington, CT.


10.  His DA Form 67-9 (Officer Evaluation Report (OER)) for the period 23 October 2004 through 22 October 2005 shows he performed duties in a CPT position as the Medical Operations Officer, 118th Medical Battalion.

11.  He was honorably released from active duty on 8 March 2005 to the control of the CTARNG.  

12. On 15 May 2006, the CTARNG published Orders 095-082 ordering his separation from the ARNG in the rank of CPT and transferring him to the Retired Reserve, effective 1 May 2006.

13.  On 23 June 2006, the NGB published Special Orders Number 157 AR extending him Federal recognition for the transfer to the Retired Reserve in the rank of CPT effective 1 May 2006.

14.  On 18 July 2006, by letter, HRC-St. Louis notified the applicant that he was considered for promotion to CPT by the Department of the Army Standby Advisory Board which convened on 26 January 2006 under the 2005 year criteria and that he was recommended for promotion to CPT with a promotion date of rank of 24 March 2005.

15.  On 23 October 2006, the CTARNG published Orders 296-035 amending the above transfer orders to show his rank of 1LT.

16.  An advisory opinion was obtained on 9 November 2011 from the NGB in the processing of this case.  An official recommended disapproval and stated that upon review of the applicant's official records, it was determined there were no orders showing he was promoted to CPT.  Additionally, per conversation with the CTARNG, the State stated that no State promotion order was ever generated regarding the applicant.  Although the State issued an order transferring him to the Retired Reserve in the rank of CPT, that order was amended to show his rank as a 1LT.

17.  In his response, dated 29 November 2009, the applicant stated that as far as he is concerned, he fulfilled the requirements for promotion to CPT during his combat tour.  He was never informed of the reversal of the advancement in rank and therefore he was unable to challenge the reversal.  He received a congratulatory letter from a general officer and he continues to receive correspondence showing his rank as a CPT.


18.  Title 10, U.S. Code, section 14317(a)(1) states if a Reserve officer on the Reserve active-status list is transferred to an inactive status or to a retired status after having been recommended for promotion, but before being promoted, the officer shall be treated as if the officer had not been considered and recommended for promotion by the selection board.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was appointed in the CTARNG on 28 August 1997.  He was released from the ARNG and transferred to the Retired Reserve in his retired rank of 1LT on 1 May 2006.

2.  However, subsequent to his transfer to the Retired Reserve, he was considered and selected for promotion to CPT by a special board which convened on 26 January 2006 under the 2005 year criteria, with a promotion date of rank of 24 March 2005.  His OER for the period 23 October 2004 through 22 October 2005 confirms he performed duties in a CPT position as the Medical Operations Officer, 118th Medical Battalion.  

3.  Based on this selection for promotion, he should be entitled to the issuance of a promotion order and transfer to the Retired Reserve in the higher grade.  

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 by:

* voiding Orders 095-082, issued by the CTARNG on 15 May 2006 
* showing he was promoted to CPT with an effective date and date of rank of 24 March 2005, and issued Federal Recognition orders with an effective date and date of rank of 24 March 2005, with entitlement to any due back pay and allowances
* issuing new orders transferring the applicant to the Retired Reserve, effective 1 May 2006, in the rank of 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)                                         AR20110000294





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ABCMR Record of Proceedings (cont)                                         AR20110000294



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