IN THE CASE OF:	  

		BOARD DATE:	  12 August 2014

		DOCKET NUMBER:  AR20130018236 


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) as a major (MAJ) from 19 October to 1 September 2012 to reflect the maximum time in grade (TIG) as a captain (CPT) of 7 years.

2.  The applicant states that he received email correspondence from a representative of the U.S. Army Reserve (USAR) which alerted him that his DOR may be adjusted when promotion selection board results are delayed and push a Soldier's DOR beyond the maximum TIG.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 215 (Correction of DD Form 214)
* Promotion orders for MAJ
* Printout of questions and answers extracted from a U.S. Army Human Resources Command (USAHRC) internet web page

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show upon graduation from the U.S. Military Academy he was appointed as a second lieutenant in the USAR.  He executed a DA Form 71 (Oath of Office - Military Personnel), and he entered active duty on 1 June 2002.

2.  He attained the rank of CPT with an effective date of promotion and DOR of 1 September 2005.

3.  On 31 May 2007, he was honorably released from active duty in the rank of CPT and he was transferred to the Pennsylvania Army National Guard (PAARNG).

4.  On 1 June 2007, the applicant was appointed in the ARNG in the rank of CPT and subsequently extended Federal recognition immediately.

5.  On 3 August 2009, he was transferred to the New York ARNG in the rank of CPT.

6.  On 1 May 2011, the applicant was honorably discharged from the ARNG and transferred to the USAR Control Group (Individual Ready Reserve) in the rank of CPT.

7.  USAHRC Orders B-11-207771, dated 24 November 2012, show the applicant was promoted in the USAR from CPT to MAJ with an effective date and DOR of 19 October 2012.

8.  In the processing of this case, on 27 November 2013, an advisory opinion was obtained from the Chief, Officer Promotion Management, USAHRC.  The advisory official stated the applicant's current DOR is correct without additional Secretarial relief.

	a.  The Fiscal Year 2012, Major Army Promotion List, Promotion Selection Board was originally convened from 30 January - 15 February 2012 and was not officially approved until 19 October 2012 based upon an administrative delay/re-convene.

	b.  By Title 10, U.S. Code (USC), Section 1430, officers on a promotion list shall be promoted to the next higher grade in accordance with regulations prescribed by the Secretary concerned once the selection board is approved by the president (or his designee).  Likewise, Army Regulation 135-155 (ARNG and USAR - Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 4-15a prohibits the production of promotion orders before the date the respective promotion board results were approved and subsequently Senate confirmed (if required, Colonel promotions and above).



	c.  However, Title 10, USC, Section 741(d)(4)(A) does afford the Secretary concerned to adjust the DOR of an Active Duty List officer appointed under section 624(a) of this title to a higher grade that is not a general officer or flag officer grade if the appointment of that officer to that grade is delayed from the date on which (as determined by the Secretary) it would otherwise have been made by reason of unusual circumstances (as determined by the Secretary) that cause an unintended delay in either the processing or approval of the report of the selection board recommending the appointment of that officer to that grade; or the processing or approval of the promotion list established on the basis of that report.

	d.  Reserve Active Status List Officers are afforded the same Secretary concerned DOR adjustment opportunity as detailed in paragraph c above by Title 10, USC, Section 14308(c)(2).

	e.  Note, any DOR relief granted prior to the date of advice and consent of the Senate must be promptly transmitted to the Committee on Armed Services of the Senate by the Secretary concerned as established by Title 10, USC, Section 741(d)(4)(D).

9.  On 3 December 2013, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  In his response he noted that USAHRC admitted that the promotion list was not officially approved until 19 October 2012 based upon an administrative delay/re-convene.  He also cited the USAHRC website information on this topic and reiterated the fact that there is a provision for adjusting an officer's DOR when such a delay resulted in the officer's DOR being established as a date beyond the date on which the officer had attained the maximum TIG for promotion.

10.  Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve Component officers.  Table 2-1 of this regulation provides for the time in grade requirements for promotion of commissioned officers.  It states that for promotion from CPT to MAJ, the minimum number of years in the lower grade is 4 years and the maximum number of years in the lower grade is 7 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DOR as a MAJ should be adjusted from 19 October 2012 to the date on which he attained the maximum TIG as a CPT, 1 September 2012, was carefully considered and determined to have merit.

2.  The evidence of record shows that:

	a.  he was promoted to CPT with an effective date and DOR of 1 September 2005;

	b.  he continued to serve in an active status until he was selected for promotion to MAJ by the Fiscal Year 2012, Major Army Promotion List, Promotion Selection Board was originally convened 30 January - 15 February 2012 but was not officially approved until 19 October 2012 based upon an administrative delay/re-convene;

	c.  he completed 7 years TIG as a CPT on 31 August 2012; and

	d.  he was promoted to MAJ with an effective date and DOR of 19 October 2012 resulting in him having 7 years, 1 month, and 18 days TIG as a CPT.

3.  In view of the foregoing and in the interest of equity, it would be appropriate to adjust the applicant's effective date of promotion and DOR for MAJ to 1 September 2012, the date after which he completed the maximum 7 years TIG in the rank of CPT.

4.  Additionally, he should be retroactively provided any 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 a recommendation for relief.  As a result, the Board recommends that all 




Department of the Army records of the individual concerned be corrected by showing he was promoted to MAJ with a promotion effective date and DOR of 1 September 2012 with entitlement to all back pay and allowances.



      _____________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)                                         AR20130018236



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ABCMR Record of Proceedings (cont)                                         AR20130018236



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