BOARD DATE:	  1 December 2011

		DOCKET NUMBER:  AR20110006276 


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 his records be corrected to show the highest rank/grade he held was captain (CPT)/O-3.

2.  The applicant states:

	a.  He served 4 years as a CPT before being informed he had been erroneously promoted to CPT.  Records dating to 16 May 2000 showed he was not promotable; however, the memorandum of "Authorization of De Facto Status" pertaining to himself was not forwarded to him until 5 April 2004.

	b.  He was told of his promotion to CPT at a battalion training meeting and he was told his rank was post-dated to 1996 although he would not be paid back pay for the promotion.  His unit deployed several platoons to Iraq in support of Operation Iraqi Freedom (OIF) and he was told he would not be able to deploy.  He was crushed so he resigned his commission and returned to the enlisted ranks so he could return to his home unit and deploy with them.

	c.  After the deployment, he received his twenty-year letter and he found that his rank of CPT did not follow him into retirement.  He believes the unit that promoted him to CPT had full knowledge that he was passed over twice, but they "pulled some tricks" to have him promoted to and paid as a CPT.  They withheld the documentation from him that showed the second pass over so he would fill the role they needed him in.  Then they demoted him back to the rank of first lieutenant (1LT).


3.  The applicant provides a self-authored letter and four memoranda.

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.  Having had prior enlisted service, the applicant was appointed as an Field Artillery (FA) second lieutenant in the South Dakota Army National Guard (SDARNG).  He executed an oath of office on 6 November 1989.  He was promoted to the rank of 1LT on 5 November 1992.

3.  On 4 December 2000, he was notified by the U.S. Army Human Resources Command, St. Louis, MO (HRC-STL) that he was promoted to the rank of CPT with an effective date of 6 November 2000 and a date of rank (DOR) of 4 November 1996.

4.  On 5 April 2004, he was notified by HRC-STL that the 4 December 2000 memorandum promoting him to CPT was revoked and the memorandum promoting him to the rank of 1LT effective 5 November 1992 remained in force as a valid memorandum.

5.  On 5 April 2004, he was also notified by HRC-STL that he was considered and selected for promotion to CPT by the 1996 Department of the Army Reserve Components Selection Board (RCSB) which convened on 14 November 1996.  His eligibility date had been established as 4 November 1996, but during a review of his record for promotion to major an error was found.  He had been transferred to the Inactive National Guard on 31 May 1995 prior to the convening date of the board; therefore, his promotion to CPT was erroneous and had to be withdrawn.  He had apparently been discharged from the ARNG and transferred to the U.S. Army Reserve (USAR) on an unknown date.  It was determined that he had served as a CPT in a de facto status from 4 December 2000 to 5 April 2004 and he was being allowed to keep the overpayments made to him since his erroneous promotion was based on an administrative error on the part of the Department of the Army.

6.  On 1 November 2004, he was honorably discharged from the USAR as a 1LT.

7.  On 30 November 2004, he enlisted in the SDARNG in the rank/grade of sergeant (SGT)/E-5.  He was ordered to active duty on 13 July 2005 in support of OIF and he served in Iraq from 8 October 2005 to 23 September 2006.  He was honorably released from active duty on 8 January 2007.

8.  On 1 December 2007, by memorandum, SDARNG, Rapid City, SD, issued him a memorandum, subject:  Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter).  This memorandum notified the applicant that he had completed the required years of service and he would be eligible for retired pay upon application at age 60.

9.  On 12 December 2008, he was honorably retired from the SDARNG in the rank of SGT and transferred to the Retired Reserve.  Item 18 (Remarks) of the National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) he was issued shows, in pertinent part, the entry "Highest grade held was O-2/1LT."

10.  In the processing of this case, on 27 October 2011, an advisory opinion was received from the Chief, DA Promotions, HRC, Fort Knox, KY.  The advisory official recommended disapproval of the applicant's request for his records to be corrected to show the highest rank he held was CPT.  The official stated the following:

	a.  The applicant was selected for CPT by the FY96 promotion board which convened in November 1995.  He was selected with a promotion eligibility date (PED) of 4 November 1996 based on 4 years time in grade as a 1LT.  He had been assigned to the inactive National Guard (ING) from 31 May 1995 through 17 August 1996.  According to Army Regulation 135-155 (ARNG and USAR - Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), to be eligible for promotion consideration an officer must have continuously performed service either on the Reserve active-status list (RASL) or active duty list (ADL), or a combination of both lists, during the 1 year period ending on the convening date of the promotion board.  Based on the applicant's ING status, he was not eligible for promotion consideration and promotion.  He was assigned to a control group in the Individual Ready Reserve (IRR) and placed on the RASL on 17 August 1996.  After serving the 1 year requirement on the RASL, he was considered for promotion by the FY98 and FY99 boards and was non-selected for promotion.
	b.  He was assigned to a troop program unit (TPU) on 30 September 1999.  Based on the FY96 selection, he was erroneously promoted to CPT on 4 December 2000 with a DOR of 4 November 1996 and an effective date of 6 November 2000; the date he was assigned to a CPT position in the 89th Regional Readiness Command (RRC).  This error was discovered in 2004, the promotion revoked, and his grade reverted to 1LT.  He was discharged as a 1LT in June 2004 and was sworn into the ARNG as an enlisted Soldier on 30 November 2004, where he remained until he retired on 12 December 2008.  He was not eligible to retire or receive retired pay as a CPT due to the fact the promotion was erroneous and revoked.

11.  On 31 October 2011, the applicant was furnished a copy of the advisory opinion for information and to allow him the opportunity to submit comments.  In a rebuttal to the advisory opinion, dated 18 November 2011, he stated it is obvious he was passed over for promotion to CPT due to his time in the IRR.  However, he was notified by letter, dated 16 May 2000, that he was twice non-selected for promotion and had to be discharged by 1 November 2000.  This was before the date he was promoted to CPT.  He questions why, once he was promoted on 4 December 2000, he was not paid back pay at the time of his erroneous promotion to CPT.  It seems this was because his unit already knew he was not promotable.  Although it was probably not done out of malice, they made him believe he was working toward career progression.  He believes he was called back up from the IRR because they were short of officers.  He performed all of his duties in a satisfactory manner.  To refuse him the retirement rank of CPT would be morally wrong given the evidence of the records that were forwarded to him after the fact.

12.  Army Regulation 135-155, paragraph 2-5, states to be eligible for consideration for promotion to the next higher grade, an Army National Guard of the United States (ARNGUS) or USAR officer must have continuously performed service on either the RASL or the ADL (or a combination of both lists) during the 1-year period ending on the convening date of the promotion board, and must meet the TIG requirements as appropriate.

13.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service), paragraph 1-4, states that retired pay is pay granted to Soldiers and former Reserve Component Soldiers under Title 10, U.S. Code, after completion of 20 or more years of qualifying service and upon attaining age 60.  This pay is based on the highest grade satisfactorily held at any time during an individual's entire period of service, other than in an inactive section of a Reserve Component.


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that due to an administrative error on the part of the Army the applicant was erroneously promoted to the rank of CPT on 4 December 2000.  At that time, his DOR was adjusted to 4 November 1996.  He should never have been considered for promotion by the November 1996 board because he had been transferred to the Inactive National Guard in May 1995 and did not return to an active status until August 1996.  He served in this rank from 4 December 2000 to 5 April 2004 when the error was discovered and the promotion orders were revoked.  As this error was not found to be his fault, he was allowed to keep the overpayment he received, but the promotion itself was still invalid.

2.  There is no evidence in his records and he has not provided any evidence that shows this error was anything except an unfortunate administrative error.

3.  By law, a person granted retired pay will receive such pay in the highest grade satisfactorily held by him or her during his or her entire period of service.  The satisfactory performance of his duties while serving as a CPT is not being questioned; however, as his promotion to CPT was erroneous and it was revoked, the highest grade he satisfactorily held was that of 1LT.

4.  In view of the foregoing, he is not entitled to the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x__  ____x____  ____x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.



      _________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)                                         AR20110006276



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ABCMR Record of Proceedings (cont)                                         AR20110006276



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