IN THE CASE OF:
BOARD DATE: 18 January 2012
DOCKET NUMBER: AR20110008431
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, commissioned service credit for his commissioned service in the United States Navy Reserve (USNR) and adjustment to his dates of rank (DOR) for first lieutenant (1LT) and captain (CPT).
2. He states that he previously served as a commissioned officer in the USNR and attained the rank of LT, pay grade 03. He left active reserve status in 1990 and was released from the Individual Ready Reserve (IRR) in 2000. In 2005, he joined the Army National Guard (ARNG) and was told his commission was no longer active, so he was enlisted as a sergeant. He worked with an ARNG recruiter and was told they could commission him which resulted in him being federally recognized as a 1LT with a DOR of 20 April 2006. He was promoted to CPT with a DOR of 12 February 2009. In addition, he was recently told he should have been brought back as a CPT.
3. He provides his DA Form 2-1 (Personnel Qualification Record); USNR documents showing DOR; and ARNG Current Annual Statement, dated 30 March 2011
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants military record shows he enlisted in the USNR on 29 July 1985 and entered active duty on 21 September 1985. He was released from active duty on 16 January 1986 to accept a commission as an officer in the USNR. He was commissioned in the USNR as an ensign on 17 January 1986.
3. He was promoted to LT junior grade on 17 January 1988 and to LT on 1 February 1990. He was transferred to the IRR on 29 September 1995. He was honorably discharged from the USNR in the rank of LT on 31 August 2000.
4. His record shows he served in the USNR as commissioned officer from 17 January 1986 through 31 August 2000, a period of 14 years, 7 months, and 15 days. He served in the grade of LT from 1 February 1990 to 31 August 2000, a period of 10 years and 7 months.
5. He enlisted in the Pennsylvania ARNG (PAARNG) as a sergeant on 1 October 2005. He was honorably discharged from the PAARNG on 19 April 2006. He was appointed in the PAARNG as a 1LT, Chemical Corps, on 20 April 2006.
6. At the time of his appointment he was not awarded commissioned service credit for his prior commissioned USNR service in the grade of LT. Based on this service (10 years and 7 months) he was eligible for appointment in the PAARNG as a CPT based on 7 years of commissioned service credit. His DOR was also not adjusted based on the excess credit of 3 years and 7 months to 20 July 2002.
7. He changed states from the PAARNG to the Maryland ARNG (MDARNG) and was appointed in the MDARNG as a1LT on 16 January 2008. He was promoted to CPT on 12 February 2009.
8. Army Regulation 135-100 (ARNG and USAR Appointment of Commissioned and Warrant Officers of the Army) prescribes the appointment of commissioned officers in the ARNG and USAR. Paragraph 1-9 states that applicants with prior commissioned service may be appointed in the grade of 1LT with 3 years or more, but less than 7 years of commissioned service credit. Applicants may be appointed in the grade of CPT with 7 years or more, but less than 14 years of commissioned service credit. Authorized credit in excess of the minimum required for appointment to the appropriate grade will be used to adjust the DOR within that grade.
9. Army Regulation 135-155 states individuals will receive mandatory promotion consideration prior to their promotion eligibility dates so that, if selected, they may be promoted on their future promotion eligibility dates. The regulation also specifies that promotion to major requires 7 years completion of time in the lower grade.
10. Army Regulation 135-155 also states that promotion consideration/
reconsideration by a Special Selection Board (SSB) may only be based on erroneous non-consideration or material error that existed in the record at the time of consideration.
11. Department of Defense Instruction 1312.03, dated 6 October 2006, paragraph 6.2.2. states a person who is a former commissioner officer may, if otherwise qualified, be appointed as a Reserve officer. A person so appointed may be placed on the Reserve Active Status List of that Armed Force in the grade equivalent to the permanent Regular or Reserve grade in which the person previously served satisfactorily on active duty on in an active status.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant was eligible for commissioned service credit for his prior commissioned service as a LT in the USNR for a period of 10 years and 7 months at the time of his appointment in the PAARNG.
2. An applicant may be appointed in the grade of CPT with 7 years or more of commissioned service credit. Any authorized credit in excess of the minimum required for appointment will be used to adjust the DOR within that grade.
3. In view of the foregoing, he is entitled to correction to his records to show he was appointed in the PAARNG as a CPT on 20 April 2006, with 10 years and 7 months of commissioned service credit. Based on the excess credit, he is also entitled to adjustment to his DOR for CPT to 20 July 2002.
4. With an adjusted DOR for CPT of 20 July 2002 and completion of 7 years time in the lower grade his promotion eligibility date for major was 20 July 2009, he is also eligible for promotion consideration to major under the 2009 and 2010 year criteria. It would now be appropriate to submit his records for appropriate SSB consideration for this purpose.
5. In view of the foregoing, his records should be corrected as recommended below.
BOARD VOTE:
___X____ ___X____ ____X __ GRANT FULL RELIEF
________ ________ ________ 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 relief. As a result, the Board recommends that all State Army National Guard and Department of the Army records of the individual concerned be corrected by showing the applicant was appointed in the Pennsylvania Army National Guard, as a captain, effective 20 April 2006, with 10 years and 7 months of commissioned service credit, and an adjusted date of rank of 20 July 2002.
2. That following administrative implementation of the foregoing, his records be submitted to a duly constituted SSB for promotion consideration for major under the 2009 and 2010 year criteria.
3. That if selected, his records be further corrected by showing he was promoted to major on his date of eligibility therefore, as determined by appropriate Departmental officials using the criteria cited, with entitlement to all back pay and allowances, provided he was otherwise qualified and met all other prerequisites for promotion.
4. That if not selected, he be so notified.
_______ _ 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.
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