IN THE CASE OF:	  

		BOARD DATE:	 20 February 2014 

		DOCKET NUMBER:  AR20130010367 


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 records to show he was promoted to captain (CPT)/pay grade O-3E (i.e., commissioned officer with more than 4 years of enlisted service) on 25 August 2004.

2.  The applicant states his date of rank (DOR) for promotion to first lieutenant (1LT)/pay grade O-2E is 25 August 2002.  He retired on 20 December 2004.

	a.  He states that normally he would have been promoted to CPT on 25 August 2004, even though he was on medical hold pending separation/
retirement.  In researching the matter, he has not been able to discover anything to preclude his promotion nearly 9 years ago.

	b.  He states his officer evaluation reports (OER's) were good and there appears to be no reason that his promotion was overlooked.  He asks if he is being punished for being honest and forthright about having multiple sclerosis.  He adds that being forced to leave military service was the worst day of his life.

	c.  He concludes that he had a total of 20 years, 9 months, and 16 days of honorable service, both as an enlisted Soldier and as a commissioned officer.  He requests promotion to CPT although it will have little effect on his retirement.

3.  The applicant provides a copy of his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service).



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 had prior honorable enlisted service in the U.S. Navy Reserve and Army National Guard (ARNG).

3.  The applicant was appointed as a Reserve commissioned officer in the rank of second lieutenant (2LT)/pay grade O-1E on 26 August 2000 and extended Federal recognition in the Indiana ARNG (INARNG).  He was awarded area of concentration (AOC) 11A (Infantry).  He completed the Infantry Officer Basic Course (OBC) on 24 May 2001.

4.  A review of the applicant's Army Military Human Resource Record (AMHRR) revealed the following:

	a.  INARNG orders show the following assignment history:

* Orders 065-010, dated 6 March 2002, transferred him to Headquarters and Headquarters Company (HHC), 2d Battalion, 151st Infantry Regiment, South Bend, IN, with assignment to the Executive Officer (XO) position (paragraph 106, line 02), AOC 11A, effective 1 May 2002
* Orders 192-025, dated 11 July 2002, promoted him to 1LT/O-2 effective 25 August 2002
* Orders 305-104, dated 1 November 2002, transferred him to Company A, 1st Battalion, 152d Infantry Regiment, Linton, IN, with assignment to the XO position (paragraph 201, line 02), AOC 11A, effective 1 November 2002
* Orders 041-026, dated 10 February 2003, transferred him to HHC, 2d Battalion, 151st Infantry Regiment, South Bend, IN, with assignment to the XO position (paragraph 106, line 02), AOC 11A, effective 1 March 2003
* Orders 007-019, dated 7 January 2005, separated him from the ARNG on 20 December 2004 and transferred him to the U.S. Army Reserve (USAR) (Retired Reserve), St. Louis, MO – these orders also show he was relieved from the duty position of Commander (paragraph 101, line 01), AOC 11A, Company F, 151st Infantry Regiment (Light Anti-Tank (LAT)) Carrier, South Bend, IN

	b.  Three DA Forms 67-9 (OER's) filed in the performance folder of his AMHRR show the following performance history:

		(1)  for the period 26 August 2000 through 25 August 2001:

* Part IIIa (Principal Duty Title) – Platoon Leader
* Part IIIb (Position) – 11A00
* Part Va (Performance and Potential Evaluation (Rater) – Evaluate Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion) – Outstanding Performance, Must Promote
* Part VIIa (Senior Rater – Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) – Best Qualified
* Part VIIb (NGB's Comparison of the Senior Rater's Profile and Box Check at the Time This Report Processed) – Center of Mass (12 March 2002)

		(2)  for the period 26 August 2001 through 30 April 2002:

* Part IIIa – Platoon Leader
* Part IIIb – 11A00
* Part Va – Outstanding Performance, Must Promote
* Part VIIa – Best Qualified
* Part VIIb – Center of Mass (14 May 2002)

		(3)  for the period 1 May 2002 through 31 October 2002:

* Part IIIa – Company Executive Officer
* Part IIIb – 11A00
* Part Va – Outstanding Performance, Must Promote
* Part VIIa – Best Qualified
* Part VIIb – Above Center of Mass (17 December 2002)

		(4)  The OER for the period 1 May 2002 through 31 October 2002 also shows the applicant was responsible for assuming command of the company in 


the absence of the commander, he met his civilian and military educational requirements, and he was enrolled in the Infantry Captain's Career Course.

5.  The applicant's NGB Form 22 shows he was honorably separated from the INARNG on 20 December 2004 under the provisions of National Guard Regulation 600-101 (Medically Unfit for Retention) and transferred to the USAR Control Group (Retired Reserve).  He had completed 4 years, 3 months, and 25 days of net service during this period; 11 years, 3 months, and 21 days of prior Reserve Component service; 5 years and 2 months of prior active Federal service; and 20 years, 9 months, and 16 days of total service for pay.

6.  On 11 January 2005, the INARNG Deputy Chief of Staff for Personnel notified the applicant of his eligibility for retired pay at age 60.

7.  A review of the applicant's AMHRR failed to reveal any evidence of college transcripts or a college diploma.  This review also failed to reveal any evidence of OER's documenting the applicant's duty performance during the period 1 November 2002 through 20 December 2004 (i.e., his separation date from the INARNG).

8.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB.

	a.  NGB recommends disapproval of the applicant's request.

	b.  NGB notes the applicant assumes he should have been promoted because he may have met the minimum requirements.

	c.  The NGB review found the applicant does not have a valid argument in his case.  The governing regulation shows the minimum time in grade (TIG) for promotion to CPT/O-3 is 2 years, the military educational requirement is completion of OBC, and the civilian educational requirement is a bachelor's degree.

	d.  The INARNG indicated the applicant was assigned to a 1LT/O-2 position.  The governing regulation and NGB policy states officers must be assigned in a vacant authorized position for the next higher grade in order to be considered for promotion.

	e.  Although the applicant may have completed his bachelor's degree, it is not available in his AMHRR.

	f.  Eligibility for promotion does not mean automatic promotion.  The Soldier must be in a vacant authorized position and the promotion packet, if submitted to the unit by the Soldier, must be endorsed by the lowest level of command prior to being boarded at State level.

	g.  The INARNG concurs with the NGB advisory opinion.

9.  The applicant was provided a copy of the advisory opinion and given the opportunity to comment.  On 22 August 2013, the applicant provided his response, along with additional supporting documents.

	a.  He stated the NGB advisory opinion indicated he was not in a vacant position for the next higher grade; however, what is shown on paper is not always the way things really are.  He provided copies of documents that show some of these indicators to substantiate his contention that he should have been promoted to CPT on 25 August 2004.

	b.  On 1 May 2002, he assumed the position of XO, HHC, 2d Battalion, 151st Infantry Regiment, because the commander of the unit had completed his university studies and was leaving for a new job in another state.  Although the applicant was assigned to the XO position, he was actually the commander of the unit.  This can be confirmed by his signature on the inventory of the unit's hand receipt completed during the change of command between him and the out-going commander.

	c.  On 1 November 2002, he received orders to deploy to Iraq in support of Operation Iraqi Freedom in January 2003.  During mobilization processing and pre-deployment training, it was discovered that he had multiple sclerosis.  On 1 March 2003, he returned to his home station with HHC, 2d Battalion, 151st Infantry Regiment.

	d.  While at home station, he helped realign the infantry battalion into an LAT battalion.  The INARNG re-designated the battalion as the 151st Infantry Regiment (LAT).  HHC, 2d Battalion, 151st Infantry Regiment, was inactivated and became a detachment of staff officers co-located with Company B, 2d Battalion, 151st Infantry Regiment.  Together they became Company F, 151st Infantry Regiment (LAT).  As his separation orders show, he was the Commander of Company F, 151st Infantry Regiment (LAT).

	e.  He states he was in a command position from 1 May 2002 until 20 December 2004 except for the 4 months that he was preparing to deploy for Operation Iraqi Freedom, a period of more than 2 years and 3 months of command time.  Although only some of the papers indicate that he was a company commander, individuals who were involved in the process will verify his time as a company commander.

	f.  The applicant provides the following additional documents that were not previously considered (above):

		(1)  An Academic Record, Tri-State University, Angola, IN, shows he was awarded a bachelor's degree on 18 November 2000.

		(2)  A Personnel Information Report, dated 5 January 2004, his rank as 1LT, he had completed a baccalaureate degree and OBC, he was qualified in AOC 11A, and he was assigned to paragraph 101, line 01.  It also shows, "This report is for official informational purposes.  The official PQR [Personnel Qualification Record] is now only contained within the SIDPERS [Standard Installation/Division Personnel System] download."

10.  National Guard Regulation 600-100 (Commissioned Officers – Federal Recognition and Related Matters) provides procedures for processing all applications for Federal recognition and announces policy dealing with civilian and military education requirements for promotion.

	a.  Chapter 8 (Promotion for Other Than General Officers) shows the minimum requirements for promotion to CPT/O-3 are 2 years TIG and completion of OBC.

	b.  Chapter 9 (Civilian Education) provides that the minimum educational requirements for ARNG basic branch commissioned officers is a baccalaureate degree.  It also shows the officer is responsible for providing original/official ("raised seal") transcripts issued from the college/university directly to the Office of the Adjutant General.  Original/Official ("raised seal") transcripts need not be included in appointment/promotion packets.  However, the State Military Personnel Office will certify photocopies of transcripts for inclusion in appointment/promotion packets and records.

	c.  This regulation also shows that promotion criteria will be based on efficiency, TIG, time in commissioned service, demonstrated command and staff ability, military and civilian education, and potential for service in the next higher grade.  Promotion will not be used solely as a reward for past performance.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was promoted to CPT/O-3E on 25 August 2004 because he met the minimum requirements for promotion (i.e., TIG, military education, and civilian education) and he was assigned to an authorized position for the next higher grade.

2.  Records show the applicant completed OBC on 24 May 2001 and he was promoted to 1LT/O-2E on 24 August 2002.  The evidence of record shows he completed his baccalaureate degree 18 November 2000; however, a review of his AMHRR failed to reveal a copy of his college transcripts.  Thus, it appears the applicant failed in his responsibility to update his records in a timely manner.

3.  Records show the applicant was assigned as the XO (a 1LT/O-2 position), Company A, 1st Battalion, 152d Infantry Regiment, effective 1 November 2002, and as the XO (a 1LT/O-2 position), HHC, 2d Battalion, 151st Infantry Regiment, effective 1 March 2003.

4.  The applicant’s OER for the period 1 May through 31 October 2002 shows he was responsible for assuming command of the company in the absence of the commander.  In other words, he would serve as "acting commander" during the commander's absence.  However, this does not mean he was assigned to the CPT/O-3 position.  In fact, the INARNG confirmed the applicant was assigned to a 1LT/O-2 position.

5.  The evidence of record shows the applicant was assigned as the Commander, Company F, 151st Infantry Regiment (LAT).  However, his AMHRR does not contain any OER's evaluating his performance of duty as a commander.  In fact, his AMHRR does not contain any OER's documenting his duty performance during the period 1 November 2002 through 20 December 2004 (i.e., the period beginning 2 months after his promotion to 1LT through the date of his separation).

6.  Eligibility for promotion does not mean automatic promotion.  In this regard, there is no evidence of record and the applicant provides insufficient evidence to show he was recommended for or selected for promotion to CPT/O-3.

7.  In view of all of the foregoing, there is an insufficient evidentiary basis for granting the applicant's request.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _____________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)                                         AR20130010367



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ABCMR Record of Proceedings (cont)                                         AR20130010367



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