IN THE CASE OF:	  

		BOARD DATE:  31 January 2013

		DOCKET NUMBER:  AR20120005898 


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 adjustment of his date of rank (DOR) to major (MAJ) from 1 September 2006 to 23 January 2001 and receipt of any back pay and allowances to which he is entitled as a result of this adjustment.

2.  The applicant states he was discharged from the South Carolina Army National Guard (SCARNG) on 23 January 2001 because he was improperly non-selected for promotion to MAJ and appointed as a chief warrant officer two (CW2).  His records went before a Special Selection Board (SSB).  The SSB determined he had been discharged in error due to non-selection for promotion to MAJ.  The SSB specified a suitable range of dates to correct the discharge and resultant time in grade error.  Although he was eventually promoted to MAJ, the ARNG did not correct the unjust lapse in time in grade (TIG) for potential promotion to lieutenant colonel (LTC) or colonel and, therefore, failed to meet the full intent of the SSB's directives.

3.  The applicant provides:

* memorandum, dated 14 January 2000
* Orders 18-81, dated 26 January 2001
* memorandum, dated 18 April 2006
* Orders 248-824, dated 5 September 2006
* 9 pages of email traffic
* letter, dated 28 December 2012


CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code (USC), 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 appointed as a Reserve commissioned officer in the SCARNG on 8 January 1988.  He served in a variety of positions and specialties throughout the course of his military career.

3.  Special Orders (SO) Number 29 AR issued by the National Guard Bureau (NGB) on 17 March 1993 show he was Federally recognized as a captain (CPT) effective 18 February 1993.

4.  His record contains a memorandum of notification of promotion status issued by U.S. Total Army Personnel Command, St. Louis, MO (currently known as the U.S. Army Human Resources Command (HRC)), on 14 January 2000.  This memorandum stated:

	a.  The Department of the Army (DA) Reserve Components Selection Board (RCSB) convened to consider officers in the rank of CPT for promotion to MAJ.  The board examined the performance portion of his records according to the memorandum of instruction (MOI) provided by the Secretary of the Army.

	b.  He was considered but was not among those selected for promotion.  His records indicated he had not completed the required civilian and/or military education by the date the board convened on 2 March 1999.  His attention was invited to the mandatory requirements for promotion as specified in Army Regulation 135-155 (ARNG and U.S. Army Reserve (USAR) – Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraphs 2-8 and 2-9, and table 2-2 or table 2-3.

5.  His record contains a memorandum of notification of promotion status issued by HRC on 10 August 2000.  This memorandum stated:

	a.  The DA RCSB convened on 7 March 2000 to consider officers in the rank of CPT for promotion to MAJ.  The board examined the performance portion of his records according to the MOI provided by the Secretary of the Army.

	b.  He was considered but was not among those selected for promotion.  As a result of this second non-selection, he must be discharged in accordance with Title 10, USC, section 14513, or Army Regulation 140-10 (Army Reserve – Assignments, Attachments, Details, and Transfers).  His established removal date was 1 February 2001 unless he was eligible for and requested transfer to the Retired Reserve.

6.  Orders 18-81 issued by the SCARNG on 26 January 2001 honorably discharged him from the SCARNG as a CPT effective 23 January 2001 and appointed him as a CW2 in the ARNG effective 24 January 2001.

7.  SO Number 48 AR issued by NGB on 26 February 2001 shows his Federal recognition was withdrawn and he was honorably discharged on 23 January 2001.

8.  SO Number 103 AR issued by NGB on 16 April 2001 shows he was Federally recognized as a CW2 effective 24 January 2001.

9.  His record contains a memorandum for promotion consideration issued by HRC on 14 April 2006.  This memorandum states:

	a.  The DA SSB convened on 4 November 2005 to consider him for promotion to MAJ using the criteria established for the mandatory board which met in 1999 and the promotion eligibility date of 3 January 2000 (earliest possible date).

	b.  The DA SSB convened to reconsider officers for promotion who may have been improperly non-selected for promotion.  The original MOI for the subject board included civilian education requirements prescribed by Army Regulation 135-155, paragraph 1-9b(2), which required CPT's being considered for promotion to MAJ to possess a baccalaureate degree if the officer's initial appointment was after 1 October 1987.  Because this regulatory degree requirement did not provide an exception for officers who were appointed to the rank of CPT before 1 October 1995, it failed to implement the baccalaureate degree exception that is required by Title 10, USC, section 12205(b)4.

	c.  The SSB recommended him for promotion to MAJ and informed him that he had one of the following options depending on his current status:

* if he had been discharged or retired, he could request voidance of the discharge or retirement and return to an active duty status
* if he became a warrant officer or enlisted, as a result of the non-selection he could have that status voided and return as a Reserve officer
* if he had since been promoted to the rank of MAJ, he could have his current DOR adjusted

	d.  Under the Reserve Officer Personnel Management Act (ROPMA) the earliest DOR he could have was the approval date of the criteria year he was selected under.  He was advised to contact his State headquarters for issuance of his promotion orders and to have his warrant officer appointment revoked.

10.  His record contains a memorandum for eligibility for promotion as a Reserve commissioned officer as a result of an SSB issued by HRC on 18 April 2006.  This memorandum states:

	a.  An SSB convened to reconsider officers for promotion who may have been improperly non-selected for promotion.  The original MOI for the subject board included civilian education requirements prescribed by Army Regulation 135-155, paragraph 1-9b(2), which required CPT's being considered for promotion to MAJ to possess a baccalaureate degree if the officer's initial appointment was after 1 October 1987.  Because this regulatory degree requirement did not provide an exception for officers who were appointed to the rank of CPT before 1 October 1995, it failed to implement the baccalaureate degree exception that is required by Title 10, USC, section 12205(b)4.

	b.  The SSB recommended the applicant for promotion in accordance with SSB 2005SS12R7 under the provisions of by Title 10, USC, section 12205(b)4, by a board adjourning on 4 November 2005.  The promotion eligibility date is indicated as 17 February 2000 and the promotion rank as MAJ.  The promotion eligibility date will be used in computing TIG for Reserve promotion to the next higher grade.

	c.  The effective date of promotion will be either of the following dates:

* 17 February 2000
* date Federal recognition is extended in the higher grade
* date following the date Federal recognition is terminated in the current Reserve grade

	d.  If the applicant accepts this promotion and Federal recognition is not extended in the next higher grade, the applicant will be transferred in his current grade to the USAR on the day following the termination of Federal recognition.  The earliest possible DOR the officer can have is the Secretary of the Army approval date of 3 February 2000 for the criteria year (1999) recommended under.

11.  Orders 248-824 issued by the SCARNG on 5 September 2006 honorably separated him from the SCARNG in the rank of CW2 and appointed him as a MAJ with an effective DOR of 1 September 2006.

12.  SO Number 304 AR issued by the NGB on 1 December 2006 shows he was Federally recognized for initial appointment as a MAJ in the ARNG effective 1 September 2006.

13.  He was honorably separated from the NGB on 27 July 2011.  His NGB Form 22 (Report of Separation and Record of Service) shows he completed 23 years, 6 months, and 20 days of net service.  This form also shows his rank as MAJ and his DOR as 24 January 2001.

14.  He was honorably retired on 31 July 2012 after completing over 20 years of active Federal service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he retired in the rank/grade of MAJ/O-4 with a DOR of 1 September 2006.

15.  An advisory opinion was obtained from NGB Personnel Policy Division in the processing of this case.  The advisory official recommended the applicant's request that his DOR be adjusted to 23 January 2001 and that he receive any back pay and allowances to which he is entitled be approved.  The advisory opinion further stated:

	a.  The applicant was erroneously non-selected for promotion to MAJ.  He was discharged and reappointed to CW2 based on Orders 18-81, dated 23 January 2001.

	b.  A memorandum from HRC, dated 18 April 2006, indicated the applicant was reconsidered for promotion to MAJ because he was improperly non-selected.  According to the memorandum, his effective date of promotion should have been either 17 February 2000, the date Federal recognition was extended in the higher grade, or the date following the date Federal recognition was terminated in the current Reserve grade.  Instead of following the instructions from HRC, he was not promoted until 1 September 2006.

	c.  Army Regulation 135-155, table 2-1 and table 2-2, state the minimum TIG requirement from CPT to MAJ is 4 years with the maximum being 7 years.  The military education requirement for MAJ is completion of any officer advanced course.  There was an error during the Mandatory Selection Board, dated 14 January 2000, stating the applicant was non-select due to civilian education requirements, which was false.  According to the NGB Federal Recognition Section, the applicant should have been promoted based on the findings of the SSB, dated 18 April 2006.

	d.  The advisory official recommended adjustment of the applicant's DOR to MAJ with an effective date of 23 January 2001 and payment of any back pay and allowances to which he may be entitled as a result of this error.  The advisory official further indicated the State of South Carolina concurred with this recommendation.

16.  Army Regulation 135-155 provides policy for selecting and promoting commissioned officers of both the ARNG of the United States and the USAR and warrant officers of the USAR.  This regulation also covers promotion eligibility and qualification requirements, board schedules and procedures, and procedures for processing selection board recommendations.

	a.  Paragraph 2-8 in effect at the time provided that to qualify for selection, commissioned officers must complete the military educational requirements in table 2-2 not later than the day before the selection board convening date.  Equivalent credit for completion of a lower level course of study will be awarded by the proper selection board for enrollment and satisfactory participation in a course that is higher than that required.  To qualify, completion of the lower course must have been a prerequisite for enrollment in the higher course.  The officer must also be enrolled and participating satisfactorily at the time of consideration.  Exceptions to educational requirements in table 2-2 will be as shown in paragraph 2-15a.

	b.  Paragraph 2-9 in effect at the time provided that baccalaureate degrees are required for Reserve promotion to MAJ or above, as specified below, which must be completed no later than the day before the selection board convene date.  All commissioned officers not previously appointed to or Federally recognized in the grade of CPT before 1 October 1995 must meet the baccalaureate degree requirement that is applied to CPT.  All commissioned officers (other than Army Nurse Corps officers) initially appointed on or after 1 October 1987 must possess a baccalaureate degree from an accredited institution recognized by the U.S. Secretary of Education or have earned a baccalaureate degree from an unaccredited educational institution that has been recognized by the Department of Defense for purposes of meeting officer educational requirements.

	c.  Table 2-1 provides that the minimum TIG requirement from CPT to MAJ is 4 years with the maximum being 7 years and the minimum TIG requirement from MAJ to LTC is 4 years with the maximum being 7 years.  Additionally, table 2-3 states the military educational requirements commissioned officer promotions from CPT to MAJ is any officer advanced course.

	d.  Paragraph 3-19 provides that officers who were erroneously not considered for promotion through administrative error may be reconsidered for promotion by an SSB.  SSBs are convened under ROPMA to reconsider commissioned officers who were wrongly not considered and reconsider commissioned officers who were considered but not selected by mandatory promotion boards that convened on or after 1 October 1996.

17.  Title 10, USC, section 12205(b)4, states no person may be appointed to a grade above the grade of first lieutenant in the Army Reserve or be Federally recognized in a grade above the grade of first lieutenant as a member of the ARNG unless that person has been awarded a baccalaureate degree by a qualifying educational institution.  However, an exception is granted to the appointment to or recognition in a higher grade of any person who was appointed to or Federally recognized in the grade of captain before 1 October 1995.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant's non-selection for promotion to MAJ by the 1999 RCSB because he did not meet the civilian education requirements was erroneous.

2.  An SSB determined the mandatory selection board's error occurred because Army Regulation 135-155, in effect at the time, failed to implement the baccalaureate degree exception that is required by law.

3.  The SSB directed his effective date of promotion to be either 17 February 2000, the date Federal recognition was extended in the higher grade, or the date following the date Federal recognition was terminated in the current Reserve grade.  Unfortunately, the SSB's instructions were not followed and he was not promoted to MAJ until 1 September 2006.

4.  The evidence of record shows his Federal recognition in the rank of CPT was terminated 23 February 2001.  Additionally, his NGB Form 22 correctly shows his DOR for MAJ as 24 February 2001, the day after his Federal recognition in the rank of CPT was terminated.

5.  Therefore, based on the foregoing evidence, he is entitled to correction of his DD Form 214 and all other necessary documents to show his effective date of promotion and DOR to MAJ as 24 February 2001 and any back pay and allowances to which he is entitled to as a result of this correction.

6.  The evidence also shows he would have been eligible for promotion consideration to LTC in 2008 and subsequent years based on the corrected DOR of 24 February 2001.  As such, he should be granted promotion reconsideration to LTC by an SSB under the RCSB 2008 (and subsequent years) criteria.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ___X__ _  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  voiding the following orders if they have not been previously voided:

* Orders 18-81 issued by the SCARNG on 26 January 2001 
* SO Number 48 AR issued by NGB on 26 February 2001 
* SO Number 103 AR issued by NGB on 16 April 2001 

	b.  adjusting his MAJ effective date of promotion and date of rank on his DD Form 214 and all other appropriate documents to 24 February 2001; and

	c.  paying him all back pay and allowances which he is entitled to as a result of this correction.

2.  Following the administrative implementation of the foregoing, his records should be submitted to a duly-constituted SSB for promotion consideration to LTC under the RCSB 2008, 2009, 2010, and 2011 criteria.  Additionally, 

	a.  if selected for promotion, his record should be corrected to show the applicant was promoted to LTC on his date of eligibility, as determined by appropriate departmental officials, using the year criteria under which he was selected, provided he was otherwise qualified and met all other prerequisites for promotion; and

	b.  if not selected, the applicant should be so notified.

3.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to adjusting his date of rank to 23 January 2001.



      _______ _  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)                                         AR20120005898



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ABCMR Record of Proceedings (cont)                                         AR20120005898



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