IN THE CASE OF:
BOARD DATE: 31 December 2013
DOCKET NUMBER: AR20130007307
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 to have his date of rank (DOR) to captain (CPT) adjusted to include his prior service time in grade (TIG) as a CPT.
2. The applicant states he was promoted to CPT while on active duty effective 1 July 2006. He separated from active duty on 1 August 2007. He subsequently returned to active service on 4 January 2010. Once his prior service TIG for his previous active duty time as a CPT is accounted for, his new DOR as a CPT should be on or about 1 December 2008.
3. The applicant provides:
* a memorandum
* 5 pages of electronic mail (email)
* Special Orders Number 77 AR
* National Guard Bureau (NGB) 337 (Oaths of Office)
* Orders 355-832
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders 178-517
* individual promotion orders
* page 22 of Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army)
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 appointed as a Reserve commissioned officer of the United States Army under Title 10 as a second lieutenant and he executed an oath of office on 10 May 2003. On 21 May 2003, he entered active duty. On 30 November 2004, he was promoted to first lieutenant. On 1 July 2006, he was promoted to CPT.
3. On 1 August 2007, he was honorably discharged for miscellaneous/general reasons. He completed 4 years, 2 months, and 11 days of net active service during this period. He had served as a CPT for 1 year, 1 month, and 1 day.
4. On 22 April 2010, the NGB published Special Orders 77 AR extending him Federal recognition for an initial appointment in the rank of CPT effective 30 November 2009.
5. In the processing of this case, an advisory opinion was obtained from the Deputy Chief, Personnel Policy Division, NGB. The advisory official stated:
a. While in the active component, the applicant was promoted to CPT with a DOR and effective date of 1 July 2006 (order number 167-052). The applicant was discharged from the active component effective 1 August 2007 (order number 178-517). The applicant was appointed as an officer in the North Carolina Army National Guard (NCARNG) effective 30 November 2009. The applicant was ordered to full time National Guard duty effective 4 January 2010.
b. Army Regulation 135-100, chapter 1, section 1-9 (7), states, "A commissioned officer of a regular component who is discharged or who resigns may be appointed as a Reserve commissioned officer. The appointment will be in the grade, with TIG for promotion purposes equal to the amount of time in the permanent grade held as a regular officer at the time of discharge or resignation."
c. DOR adjustment to 1 November 2008 gives the applicant TIG for promotion purposes equal to the amount of time in the permanent grade he held as an officer in the active component at the time of his discharge.
d. The recommendation is supported by the State.
6. On 3 May 2013, the applicant was provided with a copy of this advisory opinion. On 8 May 2013, he responded with his concurrence with the recommendation to adjust his DOR from 30 November 2009 to 31 October 2008.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that his DOR to CPT should be adjusted to include his prior service TIG as a CPT has been carefully examined and found to have merit.
2. Evidence shows the applicant was promoted to CPT with a DOR and effective date of 1 July 2006. He was honorably discharged from the active component on 1 August 2007 and he was subsequently appointed as an officer in the NCARNG on 30 November 2009.
3. However, the governing regulation allows for adjustment of his DOR to 29 October 2008, (30 November 2009 minus 1 year, 1 month, and 1 day) which gives the applicant TIG for promotion purposes equal to the amount of time in the permanent grade he held as an officer in the active component at the time of his discharge.
4. In view of the foregoing, he is entitled to the requested relief.
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 amending the applicant's DOR to CPT to 29 October 2008.
_______ _ 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) AR20130007307
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ABCMR Record of Proceedings (cont) AR20130007307
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