IN THE CASE OF:	  

		BOARD DATE:	  11March 2014

		DOCKET NUMBER:  AR20130017566 


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 an adjustment of his date of rank (DOR) to captain (CPT) in the Florida Army National Guard (FLARNG) from 3 November 1995 to 1 August 1993.

2.  The applicant states his current DOR for CPT is recorded on his Officer Record Brief (ORB) as 3 November 1995.  However, his official file contains Orders 105-031, dated 9 July 1993, promoting him to CPT on 1 August 1993. 

3.  The applicant provides his ORB and Orders 105-031. 

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.  Having had prior enlisted service in the FLARNG, the applicant was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 2 May 1988.  

3.  He was appointed in the FLARNG in the rank of second lieutenant (2LT) and executed an oath office on 29 November 1988. 

4.  On 17 October 1989, the U.S. Army Reserve (USAR) Personnel Center published orders ordering him to active duty as an obligated volunteer officer for 3 years, effective 27 May 1990 with assignment to Schofield Barracks, HI.  

5.  He was discharged from the ARNG on 24 November 1989.

6.  He entered active duty from the USAR on 27 November 1989.

7.  He was promoted to first lieutenant (1LT) on 1 May 1991. 

8.  He was honorably released from active duty on 1 June 1993.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 3 years, 6 months, and 1 day of active service.  His rank is listed as 1LT and he was transferred to the USAR Control Group (Reinforcement).  

9.  On 9 July 1993, the U.S. Total Army Personnel Command, Alexandria, VA published Orders 105-031 promoting him to CPT with an effective date and DOR as 1 August 1993.  However, it is unclear if his promotion orders were revoked on the count that he was no longer on active duty.

10.  The applicant was considered for promotion to CPT by the Reserve Component Selection Board (RCSB) that adjourned on 17 December 1993.  He was selected for promotion to CPT.  

11.  On 22 February 1994, the USAR Center, St. Louis, MO, published Orders 
C-02-407002, assigning him to the 7th Field Artillery Battalion, effective 22 February 1994.  

12.  On 1 March 1994, he executed an oath of office in the FLARNG.  Accordingly, on that date, he was reappointed in the FLARNG as a commissioned officer in the rank of 1LT.  

13.  On 18 July 1994, the USAR Command, St. Louis, MO, issued him an "Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty" memorandum advising him he had been selected for promotion to CPT in the USAR and his promotion eligibility date would be the later of 30 April 1995, date Federal recognition is granted in the higher grade, or the date following Federal recognition being terminated in the current Reserve grade.

14.  On 15 August 1994, Headquarters, 81st USAR Command, East Point, GA, published Orders 078-013 reassigning him to the USAR Control Group (Reinforcement) effective 3 August 1994 as an "Individual Ready Reserve (IRR) No Show."  

15.  On 7 February 1995, he declined his promotion and his declination was approved through 2 April 1996. 

16.  On 3 November 1995, the NGB published Orders 136 AR extending him Federal recognition for promotion to CPT with an effective date and DOR of 3 November 1995.

17.  On 7 November 1995, the FLARNG published Orders P311-006 promoting him from 1LT to CPT effective 3 November 1995.  The orders stated the applicant had been selected for promotion to CPT by the Department of the Army Reserve Selection Board that adjourned on 17 December 1993 and he is currently serving under a declination.  

18.  He was separated from the FLARNG on 21 September 1999.  Accordingly, the NGB published orders withdrawing Federal recognition from the applicant and transferring him to the USAR effective 21 September 1999.

19.  It appears he entered active duty on 22 September 1999.  Accordingly, on 6 January 2000, the U.S. Total Army Personnel Command, Alexandria, VA, published Orders 006-003 announcing his active duty DOR as 3 November 1995. 

20.  He served in a variety of stateside or overseas assignments and he was promoted to major on 1 October 2003 and lieutenant colonel on 1 September 2011 (adjusted to 1 October 2009). 

21.  An advisory opinion was obtained from the U.S. Army Human Resources Command, Fort Knox, KY, on 14 November 2013 in the processing of this case.  The advisory official recommended disapproval of the applicant's request.  He stated: 

	a.  The applicant's DOR to CPT of 3 November 1995 is based on the NGB SO Number 136 AR, dated 20 November 1995 and their appropriate governing rules and regulations.  This same DOR was honored when the applicant transitioned from the ARNG to the Active Component on 22 September 1999.  The applicant should have been issued a temporary DOR on the first day on active duty and then backdated for each date of active service in the respective same grade.  

	b.  Promotion Orders 105-031, dated 9 July 1993, were produced by the Active Component proponent which was unaware the officer had previously separated from that component on 1 June 1993 based upon the respective DD Form 214 and, as such, is not the basis for adjusting his DOR to CPT.

	c.  His records indicate he was selected by the Fiscal Year 1993, CPT Army Competitive Category (ACC) Promotion Selection List (PSB).  His associated sequence number was scheduled for promotion on 1 August 1993 based upon the aforementioned active duty promotion order.  

	d.  He should have been reintegrated into the Army Reserve Promotion List upon his subsequent transition to the IRR; however, he would not have been promoted by the Army Reserve until reaching his maximum promotion eligibility date (PED) of 30 April 1995.

	e.  He chose to voluntarily transfer from the USAR (IRR) to the FLARNG on 
1 March 1994 prior to his PED, and apparently the ARNG did not recognize or reintegrate his promotable status due to the differing zones of consideration between active component and the ARNG which was a common occurrence prior to the Reserve Officer Personnel Management Act which was not effective until 1 October 1996.  The applicant was boarded by the 1994 CPT, Army Promotion List, PSB while in the ARNG and again recommended for promotion to CPT.  This is apparently the basis for his promotion standing for the NGB SO mentioned above. 

22.  The applicant was provided with the advisory opinion but he did not respond. 

23.  Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system.  To be considered for promotion by a selection board, an officer must be on the active duty list on the day the board convenes.  Officers under suspension of favorable personnel actions or in a nonpromotable status remain eligible for consideration.  Officers whose established separation or retirement date falls within 90 days after the date on which the board is convened (Title 10, U.S. Code, sections 577 and 619) are not eligible for consideration by a promotion selection board.  Headquarters, Department of the Army will continuously review promotion lists to ensure that no officer is promoted where there is cause to believe that he or she is mentally, physically, morally, or professionally unqualified to perform the duties of the higher grade.  
24.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the ARNG and of commissioned and warrant officers of the USAR.  For promotion from 1LT to CPT, the minimum time in grade requirement in the lower grade is 2 years and the maximum time in grade requirements in the lower grade is 5 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was considered by the Fiscal Year 1993, CPT ACC PSB and he was selected for promotion to CPT.  His associated sequence number was scheduled for promotion on 1 August 1993.  However, he had decided to separate from the Active Army and transfer to the USAR prior to this date.  His separation order was published on 9 February 1993 and his release from active duty date was 1 June 1993.  He was not eligible for promotion on 1 August 1993 because he was no longer on active duty.  He would or should have been removed from the promotion list.

2.  When the applicant was released from active duty, he was transferred to the USAR Control Group (IRR). When he transferred to the USAR, he did not perform and he was declared an IRR No Show. 

3.  He was later reappointed in the FLARNG.  While in the Selected Reserve, and with a DOR to 1LT of 1 May 1991, he was considered for promotion to CPT by the RCSB that adjourned on 17 December 1993 and he was selected for promotion to CPT.  Although he initially declined promotion, he was ultimately promoted on 3 November 1995 when the NGB published Orders 136 AR extending him Federal recognition for promotion to CPT with an effective date and DOR as 3 November 1995. 

4.  His DOR to CPT is correct.  He has not shown an error or an injustice with respect to his DOR to CPT.  As such, there is no reason to change his DOR.

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 that 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)                                         AR20130017566



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ABCMR Record of Proceedings (cont)                                         AR20130017566



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