BOARD DATE:	 20 May 2014 

		DOCKET NUMBER:  AR20130014909 


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 adjustment of his date of rank (DOR) to captain (CPT) in the Montana Army National Guard (MTARNG) from 17 May 2013 to 14 May 2011.

2.  The applicant states his DOR should be corrected to 14 May 2011, one year after his eligibility date and prior to his deployment.  Despite his own efforts and the efforts of his chain of command, he was unable to be promoted due to the inability of the State recruiting office to process and complete his branch transfer in a timely manner.  It took the State recruiting office over 3 years to complete his packet for branch transfer.  His current DOR exceeded his eligibility date by over three years, despite holding a CPT slot in his unit and the efforts of his chain of command to promote him prior to the unit's deployment in 2011.

3.  The applicant provides:

* Email transmissions ranging in dates from 12-22 April 2011
* Email transmission/Inspector General (IG) complaint, dated 17 May 2011
* Letter to his Governor, dated 12 June 2011
* Orders Number 137-003, dated 17 May 2013
* Orders Number 137-007, dated 17 May 2013
* Memorandum, dated 21 May 2013




* Special Orders (SO) Number 129 AR, dated 21 May 2013
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending on 8 November 2013

CONSIDERATION OF EVIDENCE:

1.  After having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer in the MTARNG on 13 May 2006.

2.  His record contains an NGB Form 62-E (Application for Federal Recognition as an Army National Guard Officer or Warrant Officer and Appointment as a Reserve Commissioned Officer or Warrant Officer of the ARNG of the United States (ARNGUS)), dated 15 May 2006, showing he requested appointment and Federal Recognition as a second lieutenant (2LT) in the Aviation (AV) Branch.

3.  SO Number 162 AR, issued by the NGB on 29 June 2006 extended him Federal recognition as a 2LT/AV with an effective date and DOR of 14 May 2006.

4.  His record contains two DA Forms 1059 (Service School Academic Evaluation Report) which show he completed the Medical Evacuation Doctrine Course, at the U.S. Army School of Aviation Medicine on 22 June 2007 and the Aviation Basic Officer Leader Course at the Aviation School on 8 August 2007.

5.  SO Number 144 AR, issued by the NGB, on 9 June 2008, extended him Federal Recognition as a 1LT/AV with an effective date of 14 May 2008.

6.  His record contains an NGB Form 62-E, dated 25 June 2011, showing he requested appointment and Federal Recognition as a 1LT in the Medical Service (MS) Corps.

7.  His record contains an NGB Form 89 (Proceedings of a Federal Recognition Examining Board) dated 6 July 2011 showing the board recommended he be granted Federal Recognition.

8.  His record contains a DA Form 71 and an NGB Form 337 dated 7 July 2011 which show he was appointed as a Reserve commissioned officer of the MTARNG as a 1LT.

9.  Orders Number 219-003, issued by the MTARNG, on 7 August 2011 appointed him in the ARNG as a 1LT/MS with an effective date of 7 July 2011.

10.  SO Number 53 AR, issued by the NGB, on 16 February 2012, as amended, extended him Federal Recognition as a 1LT/MS (initial appointment) with an effective date of 7 July 2011 and a DOR of 14 May 2008.

11.  Orders Number 137-003, issued by the MTARNG, on 17 May 2013 promoted him to CPT with an effective date and DOR of 17 May 2013.

12.  He provided SO Number 129 AR, and his records contain SO Number 130 AR, both issued by the NGB, on 21 May 2013, and both extended him Federal Recognition as a CPT/MS with an effective date of 17 May 2013.  

13.  SO Number 132 AR, issued by the NGB on 23 May 2013, revoked the portion of SO 129 AR, issued by the NGB on 21 May 2013, pertaining to extension of Federal recognition as a CPT/MS.  

14.  SO Number 308 AR, issued by the NGB on 13 November 2013, withdrew his Federal Recognition as a CPT/MS effective 8 November 2013 because he transferred to the USAR.

15.  His NGB Form 22 shows he was honorably discharged from the MTARNG on 8 November 2013 due to resignation and transferred him to the U.S. Army Reserve (Individual Ready Reserve).

16.  He provided a series of email transmissions ranging in date from 12 April 2011 to 22 April 2011.  These emails show:

   a.  His chain of command had been working to get him promoted from 1LT to CPT in the MS specialty 67J (Aeromedical Evacuation).  However, there was a delay waiting for the 67J accessions branch due to a pending waiver for a misdemeanor ticket.  His chain of command questioned whether or not they could move him to another position within the battalion to ensure he was promoted prior to the deployment.  

   b.  His chain of command informed him that the delay transferring him from AV to MS had also caused a delay in submitting his promotion packet.  The chain of command had been informed that they should have moved him into an AV position months ago to ensure he would get boarded and promoted.  Unfortunately, at that time they did not have the ability to accomplish such a move and would have to wait for him to be awarded specialty 67J.  The chain of command expressed frustration and stated they believed the issue of his promotion was being appropriately handled and that there had been a plan in place to ensure he was promoted before the unit deployed to Iraq.  His chain of command further informed him that they would do everything possible to try to get him promoted before the deployment.

   c.  The applicant thanked his chain of command and stated he would take their advice and contact the IG.

17.  He provided an email transmission to the IG, dated 17 May 2011, wherein he stated his three main concerns were the process of changing from an AV/15A to MS/67J, the way the recruiting office handled his packet, and the ultimate delay in his promotion from 1LT to CPT.  He further stated:

   a.  He went to flight school in May 2006 and returned in September 2007.  During flight school he became aware of MS officers who were in similar ARNG units at their home states.  When he returned to his MTARNG unit he began inquiring about the process to change from AV/15A to MS/76J; however, nobody in the MTARNG was aware of this process since it had "never been done."  Additionally, he was concerned he would have to change back to an AV officer if he moved to another company.  He contacted several States to inquire about how the process worked and how he could change back to AV without losing time in grade.  He acquired several responses he provided to his chain of command and finally, the process began.

      (1)  His first complaint is that the recruiting office gave him an MS packet that had to be completed as if he were joining the Army for the first time and it was formatted for doctors, nurses, and dentists entering the Army.

      (2)  His second complaint is that he completed the necessary paperwork and supplied it to the recruiting office.  He was told the system would not accept his completed paperwork unless the entire packet was typed at once.  Therefore, he physically went to the recruiting office and went through the process.  Over the next 3.5 years he supplied the recruiting office with all the requested information; however, his packet was "somehow" never "fully" completed or submitted.  His chain of command inquired about the status of his packet in December 2010 and was told his birth certificate and social security card were missing; however, he had previously provided these documents on numerous occasions.  He feels that if he had been a new recruit his packet would have been completed in a matter of months versus years.

		(3)  His third complaint is that his promotion to CPT was delayed.  He had been in a CPT slot since 2007 and had been a promotable 1LT since 14 May 2010.  His 2009 Officer Evaluation Report (OER) contained the comments "promote immediately and promote ahead of peers."  However, he was currently unable to be promoted because he is not a 67J; therefore, he is not military occupational specialty qualified (MOSQ).

	b.  He indicated that he was being placed on Title 10 orders to deploy on 
29 May 2011.  His also stated that his 67J packet was going to be boarded on 
7 June 2011 and then forwarded for Federal recognition which could take another 3 to 4 months.  His unit stated the intent was that he be promoted prior to the deployment; however, now that that was no longer possible, they were trying to make sure he was promoted before he returned.

18.  He provided a letter to the Governor of Montana, dated 12 June 2011, wherein he stated he was hoping the Governor could clear up the issues he had been having for the past 3.5 years trying to get branch transferred from AV to MS.  He also stated that he had held an MS slot in his company for the last 5 years.  His primary concern was that he had been promotable for at least a year and that his chain of command had intended on promoting him in May 2011 before his unit deployed; however, since he was not an MS officer, he could not be promoted against his position.  He indicated the frustration he and his chain of command were feeling with the process.  

19.  During the processing of this case, an advisory opinion was obtained from the NGB, on 24 December 2013.  The NGB recommended and the MTARNG concurred with a recommendation for partial approval of the applicant's request to adjust his DOR from 17 May 2013 to 14 May 2011 for the following reasons:

	a.  The advisory official stated that the Army Board for Correction of Military Records (ABCMR) should recommend the applicant be reevaluated for promotion to CPT by a Special Selection Board (SSB) under the fiscal year (FY) 2012 Army Medical Department (AMEDD) criteria.  

		(1)  In 2012, the applicant's Federally-recognized DOR to 1LT as an MS officer was retroactively granted as 14 May 2008.  Based on this DOR, he would 
have been in the zone of consideration for the FY 2012 AMEDD promotion board in accordance with Military Personnel (MILPER) Message Number 11-288.  He was granted this DOR in January 2012; therefore, he could not have been considered by the FY 2012 AMEDD promotion board at that time.

		(2)  The ABCMR can request the applicant's records be referred to an SSB for reconsideration by authority of Army Regulation 135-155 (Promotion of 

Commissioned Officers and Warrant Officers other than General Officers), dated 13 July 2004, paragraph 3-19d(3).

		(3)  The Federally-recognized effective date of promotion cannot be modified because such action would effectively amend the actions of the Secretary of Defense, which is beyond the authority of the ABCMR.

	b.  Originally an AV officer, the applicant sought to transfer to the MS branch in the MTARNG.  Although still an AV/15A officer, he was assigned to a MS/67J duty position on 13 March 2007 as a 2LT.  He was not MOSQ for this position because he was not an MS officer.

	c.  The applicant was in the zone of consideration for the FY 2012 Department of the Army Promotion Board to CPT because his DOR as an AV 1LT was 14 May 2008.  The MTARNG submitted a request to the NGB to remove the applicant from board consideration due to the pending branch transfer, for which Federal recognition was extended in February 2012, effective 7 July 2011.  However, he remained on the list and was selected for promotion. The board results were published on 1 March 2012.  However, at this time, the applicant was ineligible for promotion because, based on his 7 July 2011 Federal recognition as an MS officer; he was no longer an AV basic branch officer.

	d.  National Guard Regulation 600-100 (Commissioned Officers-Federal Recognition and Related Actions), dated 15 April 1994, paragraph 8-2b, states "promotion will be accomplished only when an appropriate [modified table of organization and equipment] MTOE or [table of distribution and allowances] TDA position vacancy in the grade exists in the unit."  He was not promoted because his basic branch differed from his duty position.  

20.  The applicant did not respond to the advisory opinion.

21.  MILPER Message Number 11-288, FY 2012, CPT AMEDD, ARNG, Army Reserve Active Guard Reserve (AR-AGR), and Army Reserve Non-Active Guard Reserve (AR NON-AGR), Competitive Categories, Promotion Selection Boards, dated 23 September 2011 stated mandatory Department of the Army promotion selection boards will convene on or about 9 January 2012 to consider Reserve of the Army AMEDD 1LTs for promotion to CPT.  Zones of consideration consist of all Reserve of the Army (USAR and ARNG) AMEDD 1LTs with a DOR: 
* 
Above the Zone: (USAR only) 31 December 2009 and earlier
* Promotion Zone: (USAR only) 1 January 2010 through 30 November 2010
* Above the Zone: (ARNG only) 31 August 2010 and earlier
* Promotion Zone: (ARNG only) 1 September 2007 through 31 August 2008

22.  Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve Component officers.  It states that for promotion from 1LT to CPT, the minimum number of years in the lower grade is 2 years and the maximum number of years in the lower grade is 5 years.  

	a.  Paragraph 3-19d(3) states that records of officers or former officers will be referred for special selection board action when the Office of Promotions (RC) determines an officer was eligible for promotion consideration; however, the officer’s records were, through error, not submitted to a mandatory promotion selection board; a review of a mandatory selection board finds that an officer’s records contained a material error; and/or the ABCMR requests such a referral.

	b.  Paragraph 4-21 states that in no case will the DOR or effective date of promotion be earlier than the date the board is approved.

23.  National Guard Regulation 600-100, paragraph 8-2b states, except as provided in this chapter, promotion will be accomplished only when an appropriate MTOE or TDA position vacancy in the grade exists in the unit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record shows that, on 16 February 2012, he was Federally recognized (retroactively) as an MS/1LT with of DOR of 14 May 2008.  Therefore, his DOR fell within the Promotion Zone for consideration under the FY 2012, CPT AMEDD, ARNG, AR-AGR, and AR NON-AGR, Competitive Categories, Promotion Selection Boards.  

2.  The evidence of record indicates that the applicant's branch transfer and therefore his promotion to CPT were delayed due to circumstances, miscommunications, and errors beyond his control.  However, the governing Army regulation does not permit the correction of a DOR or effective date to a date earlier than the date a board is convened.  

3.  Therefore, based on the foregoing, it would be equitable to grant him promotion reconsideration to CPT by an SSB under FY 2012 AMEDD CPT 

Promotion Selection in accordance with MILPER Message Number 11-288, dated 23 September 2011.

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 records of the individual concerned be corrected by:

	a.  Submitting his record to an SSB for promotion consideration to CPT under the FY 2012 AMEDD criteria;

	b.  If before the SSB process is completed he is removed from the RASL:

		(1)  Correct his records by continuing the SSB process; 

		(2).  If selected for promotion by the SSB, further correct his records by voiding his removal from the RASL, showing he met all the eligibility criteria for promotion selection effective the approved date of the promotion selection board, promoting him in due course in accordance with Army Regulation 135-155, to CPT with the appropriate DOR, and paying him any associated back pay and allowances.

		(3)  If not selected, the applicant should be so notified.

2.  The Board further determined that the evidence presented is 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 DOR to 14 May 2011 at this time.



      _______ _  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)                                         AR20130014909



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ABCMR Record of Proceedings (cont)                                         AR20130014909



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