BOARD DATE:	  25 March 2014

		DOCKET NUMBER:  AR20130015719 


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) for captain (CPT)/O-3 and any pay and allowances he is entitled to receive as a result of the adjusted DOR.

2.  He states:

	a.  In March 2010, while a member of the New York Army National Guard (NYARNG), he was wrongly passed over for promotion to CPT because the NYARNG failed to include his education records in his promotion packet.  At the time he was passed over, he had reached his maximum time in grade (TIG) for promotion.  He appealed the decision and, in 2011, a special selection board (SSB) selected him for promotion to CPT effective 25 March 2010.  

	b.  Although he had been assured by the NYARNG that his promotion would be backdated to March 2010, his chain of command refused to adjust his DOR in direct opposition to the directive of the SSB.  He believes the reason for refusing to make the adjustment had to do with his support for removal of his commanding officer during a deployment, which resulted in a significantly degraded relationship with the NYARNG.  When they were unable to prevent his promotion, they delayed processing of his promotion packet for nearly 3 months.  When his promotion was finally processed, they refused to support a backdated DOR.  He was denied an explanation for their refusal.  

	c.  He transferred from the ARNG to the U.S. Army Reserve (USAR) in October 2012.  
	d.  Upon reaching maximum TIG, officers must be promoted or separated.  He was at maximum TIG in March 2010.  The SSB selected him for promotion to CPT effective 25 March 2010 and he received a promotion letter stating his DOR would be 25 March 2010.  A National Guard Bureau (NGB) promotion letter supports his DOR being that directed by the SSB.  There are no legal justifications or derogatory information that would justify denial of backdating his promotion.  

3.  He provides:

* memorandum, subject:  Promotion as a Reserve Commissioned Officer of the Army
* memorandum, subject:  Eligibility for Promotion as a Reserve Commissioned Officer not on Active Duty
* memorandum, subject:  Promotion Consideration
* NGB Special Orders Number 221 AR, dated 20 June 2012

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior enlisted service in the U.S. Air Force (USAF), USAF Reserve, Air National Guard, and ARNG, and prior commissioned service in the ARNG.  Following a break in service, effective 19 April 2007 he was appointed as a first lieutenant (1LT)/O-2 in the NYARNG.  

2.  Orders 116-1002, issued by the Office of the Adjutant General, State of New York, dated 26 April 2007, effected his appointment in the NYARNG.  The orders show his DOR for 1LT was established as 17 December 2002.

3.  His transaction history in Integrated Web Services, a human resources management tool maintained by the U.S. Army Human Resources Command (HRC), includes documentation showing he was flagged for Army Physical Fitness Test (APFT) failure on 15 May 2011.

4.  On 1 June 2011, the Chief, Office of Promotions (Reserve Components (RC)), HRC, notified the ARNG Personnel Center, Arlington, VA, that the applicant had been selected for promotion to CPT by an SSB that adjourned on 2 November 2010.  The memorandum stated the earliest possible effective date of the promotion was 25 March 2010 (the Presidential approval date of the criteria year (2010) under which he was selected).  

5.  A DA Form 705 (APFT Scorecard), dated 12 March 2012, shows he passed the APFT on that date.  

6.  A DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 27 March 2012, shows the flag against him was removed effective 12 March 2012 due to the favorable outcome of his case.

7.  On 20 June 2012, NGB issued Special Orders Number 221 AR extending Federal recognition to the applicant as a CPT effective 18 June 2012.  

8.  On 28 August 2012, the Office of the Adjutant General, Joint Force Headquarters, Latham, NY, issued Orders 241-1027 honorably discharging him from the NYARNG effective 24 September 2012 and transferring him to the USAR Control Group (Individual Ready Reserve).  He is currently serving in a USAR Troop Program Unit.

9.  His record in the Total Army Personnel Database - Reserve shows his DOR for CPT is 18 June 2012.

10.  During the processing of this case, the Chief, Personnel Policy Division, NGB, provided an advisory opinion.  The advisory official recommends partial approval of the applicant's request.  She states, in effect, his promotion was delayed under the provisions of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraphs 4-11c(10) and 4-18c(2), because he had been flagged for APFT failure.  The flag was removed on 12 March 2012, which should be recorded as his DOR.  The State concurs with this recommendation.  

11.  On 13 January 2014, the applicant responded to the advisory opinion.  He disagrees with the advisory recommendation.  He states:

* he was unaware of the flagging action and believes the NYARNG will be unable to provide related supporting documentation such as a counseling statement signed by him
* it was discovered his former commander had regularly abused the flagging process by secretly and illegally flagging other Soldiers he wished to impact negatively
* he was not flagged in March 2010, the promotion date directed by the SSB 
* any subsequent temporary flags are a suspension of, but not a permanent block to, favorable action and should not bar the eventual backdating of a promotion

12.  Title 10, U.S. Code, section 14502 (10 USC 14502), provides the statutory authority for SSBs.  It states 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 DOR, the same effective date for the 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.

13.  Army Regulation 135-155 prescribes policy and procedures used for selecting and promoting commissioned officers of the Army National Guard of the United States and of commissioned and warrant officers of the USAR.

	a.  Table 2-1 (TIG Requirements Commissioned Officers, Other than Commissioned Warrant Officers) states the maximum TIG as a 1LT for promotion to CPT is 5 years.

	b.  Chapter 4 provides the procedures for processing selection board recommendations.  

		(1).  Paragraph 4-11c(10) states an officer’s promotion is automatically delayed when the officer has failed the APFT most recently administered. 

		(2)  Paragraph 4-18a states that, except as provided in paragraph 4-18c, only the Secretary of the Army is authorized to determine whether an officer was unqualified for promotion during any part of an involuntary delay of promotion.  Accordingly, except as provided herein, only the Secretary of the Army may determine whether an adjustment must be made to an officer’s DOR and effective date of promotion.

		(3)  Paragraph 4-18c states the Chief, Office of Promotions (RC), HRC, is authorized to adjust the DOR and effective date of promotion for an officer whose promotion has been delayed.  This is only if the basis for the officer’s delay of promotion is as found in paragraphs 4-18c(1) through (5), and a determination is made that the basis for delay no longer exists.  Adjustment to the officer’s date of rank and effective date must be per the guidance established below.  Under paragraph 4-18a, if the basis for an officer’s delay of promotion is not as established in paragraphs 4-18c(1) through (5), the determination regarding adjustment may only be made by the Secretary of the Army.

		(4)  Paragraph 4-18c(2) provides that the Chief, Officer of Promotions (RC) is authorized to adjust the DOR and effective date of promotion for an officer who has failed to pass the most recent APFT.  The DOR and effective date will be the day the officer passes the APFT.

		(5) Paragraph 4-21e(2) states that if an officer is selected by a promotion advisory board/SSB, the officer’s DOR and effective date for pay and allowances would be the same as if the officer had been recommended for promotion to the grade by the mandatory board that should have considered, or that did consider, the officer.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record supports the applicant's request for adjustment of his DOR for CPT and receipt of pay and allowances as a result of the adjusted DOR.  

2.  The record shows that, when the ARNG was notified of the applicant's selection by an SSB, he was flagged for APFT failure.  The flag was a basis for delaying his promotion; however, once the flag was removed, the provisions of 10 USC 14502 applied and he should have been promoted as he would have been if originally recommended for promotion by the applicable selection board.  

3.  His earliest possible effective date for promotion to CPT was determined to be 25 March 2010.  Instead, he was promoted with an effective date and DOR of 18 June 2012.  The later date penalizes him by treating him as if he had been selected by a routine selection board.  The SSB action effectively added his name to a 2010 promotion list, a list from which he would have been promoted well before he was flagged for APFT failure.  In this case, establishing a promotion effective date and DOR based on the removal of the flag was contrary to equity and justice.

4.  In view of the foregoing, it would be appropriate to correct the applicant's record to show his effective date and DOR for promotion to CPT is 25 March 2010.  He should also receive any pay and allowances he is due 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 a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing his effective date and DOR for promotion to CPT is 25 March 2010 and

	b.  paying him any pay and allowances he is due 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)                                         AR20130015719





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ABCMR Record of Proceedings (cont)                                         AR20130015719



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