IN THE CASE OF:
BOARD DATE: 22 August 2013
DOCKET NUMBER: AR20130008984
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 reconsideration of his previous request for correction of his effective date for promotion to captain (CPT)/O-3 to be the same as his date of rank (DOR), 22 September 2009.
2. He states he was selected for promotion by a Special Selection Board (SSB) under the 2009 selection board criteria. He believes the effective date of his promotion, which determines his pay and allowances, should be the same as his DOR indicated by the SSB results in accordance with Title 10, U.S. Code (10 USC), section 14502(e)(2) which states: "an officer promoted to the next higher grade as the result of the recommendation of an SSB convened under this section shall, upon such promotion, have the same DOR, the same effective date for pay and allowances of that grade, and the same position on the Reserve active status list (RASL) as the officer would have had if the officer had been recommended for promotion to that grade by the selection board which should have considered, or which did consider, the officer."
3. He acknowledges the partial relief he received from the Army Board for Correction of Military Records (ABCMR) by changing his effective date of promotion from 22 April 2011 to 8 December 2010. He also notes the ABCMR did not grant him full relief because of the belief that "There is no evidence and he has not provided any to show he held an O-3 position and/or was extended Federal recognition to the higher grade prior to 8 December 2010." He contends he can provide evidence showing he has served in CPT/O-3 positions since 2005.
4. He provides four assignment orders and a DA Form 4037 (Officer Record Brief (ORB)).
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20110020561 on 3 July 2012.
2. The applicant provides new evidence in the form of assignment orders which were not previously reviewed by the ABCMR. Therefore, it is considered new evidence and as such warrants consideration by the Board.
3. Following a period of enlisted service in the Air Force, on 23 April 1999 the applicant enlisted in the Maryland Army National Guard (MDARNG). On
9 August 2002, he was honorably discharged to accept an appointment as a second lieutenant/O-1 in the ARNG which was accomplished the following day.
4. He was promoted to first lieutenant/O-2 with an effective date and a DOR of 10 August 2004.
5. The applicant's record contains and he also provides assignment orders which show he was assigned to CPT/O-3 and major (MAJ)/O-4 positions with duty as a Company Commander, Officer Strength Manager, Officer Strength Manager-Specialty Branch Recruiter, and Human Resources Officer (S1) from 8 February 2005 through June 2011.
6. The applicant's record contains DA Forms 67-9 (Officer Evaluation Report) rendered for the period 11 February 2005 through 1 June 2011 which confirm he served in the aforementioned CPT/O-3 and MAJ/O-4 positions. His ORB further corroborates this fact.
7. A U.S. Army Human Resources Command (HRC) memorandum, Subject: Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty, dated 18 February 2010, shows he was selected for promotion to CPT under the provisions of Title 10, section 14502 by a 2009 SSB. The board convened on 22 September 2009. The memorandum stated the date of rank would be either
9 August 2009 or the date Federal recognition was extended in the higher grade.
8. Headquarters, MDARNG, Orders 112-135, dated 22 April 2011, promoted him to CPT/O-3, with an effective date and a DOR of 22 April 2011.
9. A National Guard Bureau (NGB) memorandum, Subject: Promotion as a Reserve Commissioned Officer of the Army, dated 23 May 2011, stated that his Reserve of the Army promotion and authorization for pay and allowances in the higher grade were effective on 22 April 2011. Time in grade for promotion to the next grade would be computed from his promotion eligibility date of 9 August 2009. The memorandum further stated that if the promotion was a result of a recommendation by an SSB, the DOR, effective date for pay and allowances and position on the RASL was the same as if he had been recommended by the selection board which did not recommend or consider him.
10. NGB Special Orders Number 116 AR, dated 23 May 2011, extended the applicant Federal recognition in the rank/grade of CPT/O-3, effective 22 April 2011. Special Orders Number 274 AR, dated 28 October 2011, amended his promotion eligibility date to 9 August 2009.
11. The Record of Proceedings for the previous ABCMR consideration of the applicant's request stated the available evidence indicated the applicant had occupied a CPT/O-3 position since 8 December 2010. As a result, the Board recommended partial relief by showing he was promoted to CPT and granted Federal recognition for this promotion with an effective date of 8 December 2010 with entitlement to any due back pay and allowances.
12. In accordance with the previous ABCMR decision, NGB Special Orders Number 268 AR, dated 23 July 2012, amended the applicant's Federal recognition orders for the rank/grade of CPT/O-3 (NGB Special Orders Number 116 AR, dated 23 May 2011), by changing the effective date of his promotion from 22 April 2011 to 8 December 2010. Headquarters, MDARNG Orders 208-137, dated 26 July 2012, amended Headquarters, MDARNG, Orders 112-135, dated 22 April 2011, which promoted him to CPT/O-3, by changing the effective date of his promotion from 22 April 2011 to 8 December 2010.
13. The Integrated Total Army Personnel Database lists his grade as CPT with a DOR of 22 September 2009 and an effective date of 8 December 2010.
14. On 21 June 2013, a representative of the U.S. Army Force Management Support Agency (USAFMSA) confirmed the applicant's duty positions from 2005 to 2007 were coded for CPT/O-3 and his positions from 2007 to present were coded for MAJ/O-4.
15. 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 and ARNG officers. This regulation states that officers selected by an SSB are eligible for the same DOR that they would have received by the original board in which the error occurred.
16. Title 10, U.S. Code, section 14502(e)(2) provides that an officer who is promoted to the next higher grade as the result of the recommendation of an SSB convened under this section shall, upon such promotion, have the same date of rank, the same effective date for the pay and allowances of that grade, and the same position on the RASL as the officer would have had if the officer had been recommended for promotion to that grade by the selection board which should have considered, or which did consider, the officer.
17. National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions) states that the effective date of promotion of an ARNG officer who is promoted in the States is the date Federal Recognition is extended by the National Guard Bureau. The officer's date of rank as a Reserve of the Army for an ARNG commissioned officer, who is promoted as a result of Federal recognition board selection, is the date Federal Recognition is extended in the higher grade.
DISCUSSION AND CONCLUSIONS:
1. In view of the new evidence, the applicant is entitled to correction of both his effective date of promotion and DOR to CPT. The available evidence shows he served continuously in positions coded for a minimum of CPT/O-3 since 8 February 2005. As such, he was serving in a CPT/O-3 position on his promotion eligibility date, 9 August 2009.
2. Further, the evidence of record shows he was selected for promotion to CPT by the 2009 SSB. The memorandum stated the effective date of the promotion would be either 9 August 2009 or the date Federal recognition was extended in the higher grade. In view of the fact that he was serving in an authorized position for the higher grade on his promotion eligibility date, he should have been extended Federal recognition effective 9 August 2009.
3. As cited in Title 10, U.S. Code, section 14502(e)(2) if selected for promotion by an SSB, he is entitled to have the same DOR and the same effective date for the pay and allowances of that grade as other officers would have received by the original board which should have considered him for promotion.
4. In view of the foregoing, the applicant is entitled to full relief. Therefore, his records should be corrected to show his effective date for promotion and DOR to CPT as 9 August 2009. Further, as a result of this correction, the Defense Finance and Accounting Service (DFAS) should pay him any back pay and allowances to which he is entitled as a result of this correction.
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 amendment of the ABCMRs decision in Docket Number AR20110020561, dated 3 July 2012. 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 he was promoted to CPT and granted Federal recognition for this promotion with an effective date and DOR of 9 August 2009 and that DFAS pay him any back pay and allowances to which he is entitled as a result of this correction.
_______ _ _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) AR20130008984
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20130008984
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