IN THE CASE OF:	  

		BOARD DATE:  4 June 2013

		DOCKET NUMBER:  AR20130001960 


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 date of rank (DOR) to captain (CPT) in the Florida Army National Guard (FLARNG) from 29 October 2009 to 1 September 2004.  (In his response to an advisory opinion he stated he would accept a DOR of 5 September 2004).

2.  The applicant states he was first promoted to CPT on 1 June 1996.  He served 23 months on active duty as a CPT and then 38 months in the Individual Ready Reserve (IRR).  He had a total of 61 months time in grade.  He then had a break in service.  On 29 October 2009, he came back into the U.S. Army Reserve (USAR) and his DOR was calculated improperly.  He tried to fix this problem within his unit S-1 and USAR channels with no luck. 

3.  The applicant provides:

* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* a self-authored memorandum
* a DA Form 4651 (Request for Reserve Component (RC) Assignment or Attachment)
* Two DA Forms 71 (Oath of Office - Military Personnel)
* a Letter of Acceptance
* a Unit Manning Report
* a DD Form 368 (Request for Conditional Clearance)
* a Memorandum titled "Signature Authority"
* a Memorandum titled "Assumption of Command Authority"
* All Army Activities (ALARACT) Message 365/2010, dated 20 November 2010, Subject:  Army Nurse Corps Incentive Special Pay Policy, Plan, and Rates
* NGB Special Orders Number 69 AR
* NGB Special Orders Number 79 AR
* Orders 135-094, promotion to CPT
* an NGB Form 337 (Oath of Office)
* USAR discharge orders
* a DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Resignation approval message

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was appointed as a Reserve commissioned officer and executed an oath of office on 14 May 1992.  He entered active duty on 12 June 1992.  He accepted appointment in the Regular Army (RA) on an unknown date.  He was promoted to CPT on 1 June 1996.  

2.  He submitted a request for unqualified resignation that was ultimately approved.  Accordingly, on 30 April 1998, he was honorably discharged in the rank of CPT.  

3.  On 30 April 1998, he executed an oath of office in the USAR and as such, he was issued an appointment memorandum as a CPT in the USAR on that date. He remained in the IRR until 24 July 2001, when he was honorably discharged from the USAR in the rank of CPT.

4.  After a break in service, on 1 May 2009, he submitted an application for appointment as a Reserve commissioned officer of the Army in the ARNG.  

5.  He was appointed as a Reserve commissioned officer of the Army in the FLARNG in the rank of CPT and executed an oath of office on 29 October 2009. 

6.  On 26 April 2010, the NGB published Special Orders Number 79 AR extending him Federal recognition for his initial appointment in the FLARNG effective 29 October 2009.  

7.  On 27 October 2011, he was separated from the FLARNG and transferred to the USAR to a troop program unit.  His NGB Form 22 cited the reason for separation as "Resignation - Assignment Loss Reason - Enlisted or Appointed in Any Reserve Component."  

8.  On 27 February 2012, the NGB published Special Orders Number 69 AR withdrawing Federal recognition effective 27 October 2011. 

9.  He completed the Military Intelligence CPTs Career Course at Fort Huachuca, AZ, from 4 to 16 January 2013.  

10.  An advisory opinion was obtained from the NGB on 2 May 2013 in the processing of this case.  An NGB official recommended partial approval of the applicant's request.  The official stated the FLARNG admits to an administrative error while processing the applicant's accession packet resulting in an incorrect DOR on Federal Recognition Orders Number 79 AR.  His DOR should have been determined by his length of service in the active component and the IRR, which is 5 years, 1 month, and 24 days.  The NGB and the State recommend an adjusted DOR to 5 September 2004.  

11.  On 6 May 2013, the applicant responded with an email and stated the above recommendation sounds reasonable.  He accepted the recommendation. 

12.  Title 10, U.S. Code (USC), section 12207 (Commissioned Officers: Service Credit Upon Appointment) states in:

	a.  Paragraph a(1) For the purpose of determining the grade and the rank within grade of a person receiving an original appointment as a reserve commissioned officer (other than a commissioned warrant officer) in the Army, Navy, Air Force, or Marine Corps, the person shall be credited at the time of the appointment with any commissioned service (other than service as a commissioned warrant officer) performed before such appointment as a regular officer, or as a reserve officer in an active status, in any armed force, the National Oceanic and Atmospheric Administration, or the Public Health Service.

	b.  Paragraph a(2), the Secretary of Defense shall prescribe regulations, which shall apply uniformly among the Army, Navy, Air Force, and Marine Corps, to authorize the Secretary of the military department concerned to limit the amount of prior commissioned service with which a person receiving an original appointment may be credited under paragraph (1), or to deny any such credit, in the case of a person who at the time of such appointment is credited with constructive service under subsection (b). 

13.  Department of Defense Instruction Number 1312.03, dated 6 October 2006 and certified current as of 15 September 2011, Subject: Service Credit for Commissioned Officers, continues to implement section 12207 of Reference (d) to establish policies and procedures governing the granting of service credit to persons upon original appointment, designation, or assignment as a Reserve commissioned officer, except those in the health professions.  Section 6 (Procedures) states in:

	a.  6.1 (Entry Grade Credit), the entry grade and DOR or promotion service credit in grade of a commissioned officer (other than an officer in the health professions) shall be determined by the entry grade credit awarded upon appointment.  The entry grade credit that is awarded shall be the sum of the prior commissioned service allowed and the amount of constructive service credit allowed.  A period of time shall be counted only once when computing credit.  Section 6.1.1.  (Prior Active Commissioned Service Credit) states credit for prior service as a commissioned officer may not exceed 1 year for each year of the following: 

* 6.1.1.1. Active duty commissioned service or commissioned service in an active status (except as a commissioned warrant officer) including periods of active duty for training
* 6.1.1.3. Commissioned service (except as a commissioned warrant officer) in an active status, but not on active duty, for persons appointed as Reserve commissioned officers

	b.  6.2 (Entry Grade), sub-section 6.2.1. states a person granted service credit under this Instruction and placed on the Active Duty List (ADL) or Reserve Active Status List (RASL) of a Military Service may have an entry grade determined by comparing entry grade credit with the appropriate promotion phase points of the Military Service and officer category concerned.  Except as limited by paragraph 6.1.3., credit granted that exceeds that amount used to establish the entry grade shall be used to adjust the DOR.  RC officers shall be ordered to active duty in their Reserve grades.  Sub-section 6.2.2. states a person who is a former commissioned officer may, if otherwise qualified, be appointed as a Reserve officer.  A person so appointed:  

* 6.2.2.1. May be placed on the RASL of that Armed Force in the grade equivalent to the permanent Regular or Reserve grade, and in the same competitive category, in which the person previously served satisfactorily on active duty or in an active status; and, 
* 6.2.2.2. May be credited for determining DOR under section 741(d) of Reference (d) with service in grade equal to that held by that person when discharged or separated

14.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for the promotion of Reserve officers.  Promotion consideration from CPT to major (MAJ) by a mandatory RC Selection Board requires completion of 7 years in the lower grade.  It also states a Special Selection Board (SSB) may be convened to consider commissioned officers for promotion when Headquarters, Department of the Army discovers one or more of the following: an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error, (SSB required); the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary); or the board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary).

15.  The Fiscal Year 2011 MAJ Army Promotion List (APL) that convened in or about October 2010 considered CPTs for promotion to MAJ in the following zones:

* Above the Zone: 31 August 2004 and earlier
* Promotion Zone: 1 September 2004 through 31 August 2005
* Below the Zone: 1 September 2005 through 31 August 2006

16.  The Fiscal Year 2012 MAJ APL that convened in or about January 212 considered CPTs for promotion to MAJ in the following zones:

* Above the Zone: 31 August 2005 and earlier
* Promotion Zone: 1 September 2005 through 31 August 2006
* Below the Zone: 1 September 2006 through 31 August 2007

17.  The Fiscal Year 2013 MAJ APL that convened in or about March 2013 considered CPTs for promotion o MAJ in the following zones:

* Above the Zone: 31 August 2006 and earlier
* Promotion Zone: 1 September 2006 through 31 August 2007
* Below the Zone: 1 September 2007 through 31 August 2008

DISCUSSION AND CONCLUSIONS:

1.  The applicant was promoted to CPT in the RA on 1 June 1996.  He held this rank through his discharge date, 30 April 1998, a period of 1 year and 11 months. He accepted appointment in the USAR on 1 May 1998 and he held the grade of CPT through his discharge date, 24 July 2001, a period of 3 years, 2 months, and 24 days.  In other words, he held the rank of CPT for a total of 5 years, 1 month, and 24 days.  

2.  After a break in service, he was appointed in the FLARNG on 29 October 2009.  At that time, the State should have adjusted his DOR by 5 years, 1 month, and 24 days – i.e., 5 September 2004.  For unknown reasons, this action did not happen.  The applicant was discharged from the ARNG on 27 October 2011 and he was transferred to the USAR on that date.  His records should be corrected by adjusting his DOR to CPT to 5 September 2004. 

3.  Had his DOR been established correctly in 2009, he would have been eligible for promotion consideration to MAJ upon meeting the promotion eligibility date of 7 years in the lower grade, i.e. the earliest board after 5 September 2011.  Therefore, he is also entitled to have his records considered by an SSB under the FY11, FY12, and FY13 criteria.

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 all Department of the Army records of the individual concerned be corrected by:

	a.  Amending the applicant's DOR to CPT from 29 October 2009 to 
5 September 2004.  

	b.  Submitting the applicant’s records to a duly-constituted SSB for consideration for promotion to MAJ under the 2011, 2012, and 2013 MAJ APL promotion selection board criteria:

		(1)  If the applicant is selected for promotion his records should be further corrected by promoting him to MAJ based on his assigned promotion sequence
number with the appropriate DOR, and with all due back pay and allowances, or by assigning him the appropriate promotion sequence number for future promotion purposes. 

	


	(2)  If not selected, the applicant should 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.

ABCMR Record of Proceedings (cont)                                         AR20130001960



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ABCMR Record of Proceedings (cont)                                         AR20130001960



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