IN THE CASE OF:
BOARD DATE: 5 December 2013
DOCKET NUMBER: AR20130007352
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 effective date of promotion to captain (CPT) in the New York Army National Guard (NYARNG) from 22 October 2012 to 12 January 2011 with back pay and allowances.
2. The applicant states he has the documents that were submitted on two occasions for his promotion to CPT on 16 December 2011 and 18 January 2013 and were not processed until 22 October 2013 (22 October 2012).
3. The applicant provides:
* Information Paper, dated 12 April 2011
* DA Board Results
* Officer DA Select Promotion Checklist, dated 16 December 2011
* Recommendation for Promotion of Officer, dated 16 December 2011
* Recommendation for Promotion of Officer, dated 18 January 2013
* DA Form 705 (Army Physical Fitness Test Scoreboard)
* DA Form 5500 (Body Fat Content Worksheet)
* Personnel Qualification Record - Officers/Warrant Officers
* Orders 296-1032 (state promotion)
CONSIDERATION OF EVIDENCE:
1. Having had prior enlisted service, the applicant submitted an application for appointment as a Medical Services Corps (MS) commissioned officer of the OHARNG.
2. On 21 August 2008, the Director of Health Services released the results of the August 2008 Army Medical Department (AMEDD) Accession Board for the ARNG. The applicant was selected.
3. He was appointed as a first lieutenant (1LT), MS, commissioned officer of the Army and the OHARNG and he executed an oath of office on 21 August 2008. The National Guard Board (NGB) published Special Orders (SO) 9 AR extending him Federal recognition for his initial appointment.
4. He successfully attended and completed the AMEDD Officer Basic Leader Course - Reserve Component from 24 June to 19 July 2009.
5. On 15 July 2010, NGB published SO Number 152 AR extending him Federal recognition for a transfer from the OHARNG to the PAARNG, effective 26 May 2010.
6. On 24 January 2011, NGB published SO Number 13 AR extending him Federal recognition for a transfer from the PAARNG to the NYARNG, effective
15 December 2010.
7. On 22 October 2012, the NYARNG published Orders 296-1032 promoting him to CPT effective 22 October 2012.
8. On 24 October 2012, NGB published SO Number 382 AR extending him Federal recognition for promotion to CPT effective 22 October 2012.
9. He submitted:
a. An unsigned or endorsed Recommendation for Promotion of Officer, dated 16 December 2011, wherein his company commander recommended him for promotion to CPT in the ARNG, position 102-01, Behavioral Science Officer, a CPT position, 466th Area Support Medical Company, NY. He met the height and weight standards and he passed the Army Physical Fitness Test (APFT).
b. A signed but unendorsed Recommendation for Promotion of Officer, dated 18 January 2013, wherein his company commander recommended him for promotion to CPT in the ARNG, position 102-01, Behavioral Science Officer, a CPT position, 466th Area Support Medical Company, NY. He met the height and weight standards and he passed the APFT.
10. An advisory opinion was obtained on 2 July 2013 from the NGB in the processing of this case. An advisory official recommended partial approval to adjust the applicant's date of rank to CPT to 12 April 2011 with entitlement to back pay and allowances. The official stated:
a. The applicant's promotion effective date (PED) to CPT is 22 October 2012. He was selected for promotion by the 2011 CPT AMEDD RC Promotion Board and the board results were published on 12 April 2011. He was in a CPT position as of 15 December 2010, as per Orders 006-999, dated 6 January 2011.
b. His PED should be 12 April 2011 because he was slotted in a CPT duty position when the DA board results were published. According to Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other Than general Officers), paragraph 4-21b(2), unit officers selected by a mandatory board will have a promotion date and effective date no earlier than the date the board was approved or the date of Senate confirmation (if required), provided they are assigned to a position in the higher grade. When the board approval or Senate confirmation (if required) is before assignment to the position in the higher grade, the effective date and date of promotion will be the date of assignment to the higher-graded position.
c. The applicant requests the date of 12 January 2011 as the effective date of his promotion because this is when the 2011 CPT AMEDD RC promotion board convened. However, the date the board results were released (12 April 2011) is the earliest date he can be promoted, as long as he is in a duty position of the higher grade, which he was, as of 15 December 2010. Therefore, the
12 April 2011 date is the correct date for his promotion. The NYARNG concurs with this recommendation.
11. The applicant was provided with a copy of this advisory opinion but he did not respond within the allotted time.
12. Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve and ARNG officers. The regulation states ARNG officers will be considered for promotion by mandatory promotion boards, and promotion to CPT required completion of 5 years of maximum time in grade as a 1LT.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends his effective date of promotion to CPT should be adjusted from 22 October 2012 to 12 January 2011. He contends that he was selected for promotion by a DA board and he was already serving in the
higher-graded position but he was not promoted until 18 or so months after the release of the board results. The delay is no fault of his.
2. The applicant was appointed in the rank of 1LT on 21 August 2011. He was selected for promotion by a DA mandatory AMEDD RC promotion board whose results were released on 12 April 2011. Normally, processing time for the extension of Federal recognition is 90 to 120 days.
3. He requests the date of 12 January 2011 as the effective date of his promotion because this is when the 2011 CPT AMEDD RC promotion board convened. However, the date the board results were released (12 April 2011) is the earliest date he can be promoted, as long as he is in a duty position of the higher grade, which he was, as of 15 December 2010. Therefore, the 12 April 2011 date is the correct date for his promotion.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
____X___ ___X____ ___X____ 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 partial relief. As a result, the Board recommends that all Department of the Army and State Army National Guard records of the individual concerned be corrected by:
* amending his effective date and date of rank to CPT to 12 April 2011
* paying him back pay and allowances as a result of this correction
2. The Board further determined that the evidence presented was 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 effective date of promotion to 12 January 2011.
_______ _ 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) AR20130007352
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