IN THE CASE OF:	  

		BOARD DATE:	  14 August 2014

		DOCKET NUMBER:  AR20130020479 


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 her date of rank (DOR) to captain (CPT). 

2.  The applicant states:

   a.  On 11 December 2008, she received active duty orders into the sanctuary program.  She was informed she had the choice of retiring or entering the Regular Army (RA).  Her orders stated she was in the RA and counted toward the Army's end strength.  When her orders were received by the Army National Guard (ARNG), her commission was terminated and she was given an honorable discharge.

   b.  Before entering the sanctuary program she was on schedule for promotion to CPT.  A promotion packet was initiated and a slot was available.  She was assured by the U.S. Army Human Resources Command (HRC) that once she entered the sanctuary program she had the choice to enter the RA and her promotion to CPT would move forward.  However, once her commission was terminated and she was discharged from the ARNG, the promotion process was terminated and she was dropped from the promotion board list.

   c.  Three months later she was informed that she was not in the ARNG or the RA; however, she was being paid by the Army.  Here she was, an outstanding officer with excellent officer evaluation reports (OERs), a great work ethic, a Masters degree in her branch field, and she could not get promoted from first lieutenant (1LT) to CPT for four years.  It was very frustrating to witness her peers receive promotions while she was left behind despite her OERs stating, "promote ahead of peers."  She was unable to get promoted because she was in limbo for two years.  
   
   d.  HRC sent her an application request for her to request RA integration, but that was a problem because the application was for enlistment in the RA and not commissioning into the RA.  Ultimately, she was set on the right path of applying to the Call to Active Duty Program (CAD) and she requested a Special Selection Board (SSB).  It was 4 years, 6 months, and 13 days from the date of her promotion to 1LT (12 September 2006) that she was looked at for promotion to CPT.  The RA promoted at 18 months time in grade (TIG) at the time and the ARNG promoted at 24 months TIG with a command slot.
   
   e.  On 30 November 2010, she was retired from the sanctuary program because her orders for the CAD had not been received.  A few weeks later she received word that she had been accepted as a commissioned officer into the CAD program and her orders were on the way.  Her retirement orders were revoked and she received orders for the Advanced Course and official promotion orders to CPT effective  25 March 2010.  She was further informed by HRC promotions branch that once she was accessed, her DOR would be aligned with her peers.
   
   f.  In July 2012, she was assigned to U.S. Army Central Command where she requested her DOR be changed by HRC-Accessions.  To her surprise, her DOR was pushed forward to October 2012, which separated her further from her peers and her next promotion board review.  
   
3.  The applicant provides:

* a self-authored statement
* DA Form 4037 (Officer Record Brief)
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Orders A-12-826255
* Orders A-12-826255A01
* NGB Form 55a (Honorable Discharge)
* Orders 019-0603
* 2 memoranda
* Orders 014-0606
* Orders 014-0605
* 2 DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* Service Computation for Separation
* NGB Form 23A (Army National Guard Current Annual Statement)
* NGB Form 337 (Oaths of Office)
* Special Orders Number 7 AR
* 6 DA Forms 67-9 (Officer Evaluation Report)
* DA Form 1059 (Service School Academic Evaluation Report)

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the RA and ARNG, the applicant was appointed a Reserve Commissioned Officer of the Army in the rank of second lieutenant on 12 September 2004.

2.  On 12 September 2006, while a member of the Tennessee Army National Guard, she was promoted to the rank of 1LT.

3.  On 10 December 2008, she was honorably discharged from the ARNG and transferred to the U.S. Army Reserve (USAR) Control Group (Individual Ready Reserve).

4.  On 11 December 2008, she was ordered to active duty in the rank of 1LT for a period of 720 days to obtain 20 years of active federal service under the extended active duty sanctuary program.

5.  Evidence appears to indicate the applicant was scheduled to retire at the completion of her required active service on 30 November 2010; however, it seems her discharge was voided as she awaited approval of her CAD.

6.  On 26 January 2011, the applicant was notified she was selected for a Reserve promotion by an SSB that adjourned on 28 June 2010.  The applicant was subsequently promoted to the rank of CPT with an effective date and DOR of 25 March 2010.

7.  On 2 June 2011, the applicant was ordered to report to active duty on 17 June 2011, to fulfill her 36-month active duty requirement in a voluntary indefinite status.  Evidence indicates she reported on 15 June 2011.

8.  The applicant's record contains a DA Form 1506 (Statement of Service - for Computation of Length of Service for Pay Purposes), dated 20 July 2012, which shows her in an inactive status from 1 December 2010 to 14 June 2011.

9.  The applicant's record contains Orders Number 213-018, issued by HRC, dated 31 July 2012, which adjusts her DOR to CPT to 7 October 2010.

10.  During the processing of this case, on 6 January 2014, an advisory opinion was obtained from the Chief, Officer Promotions Management, HRC.  The advisory official stated his office conducted a review of the applicant's DOR and Promotion Board history and concluded that her current DOR adjustment to CPT is correct.  He further stated:

   a.  The applicant was selected for promotion to CPT by the Fiscal Year 2010, Reserve Component, CPT, Army Promotion List, Promotion Selection Board under Special Selection Board Reconsideration and then subsequently promoted to CPT with an effective date of 25 March 2010 by HRC on Promotion Orders 
B-01-100296, dated 26 January 2011.

   b.  On 15 June 2011, the officer transferred from the Reserve Component to the Active Component as part of the CAD.  As such, her original first day in the Active Component as part of her CAD entry, 15 June 2011, was backdated for each day of Active Federal Service (i.e., 251 days of Active Federal Service) in the respective same grade as established by Army Regulation 600-8-29 (Officer Promotions), paragraph 1-41a and effectively re-established her DOR to CPT as 7 October 2010.

   c.  The AHRC-PDV-PO Form 100a (Computation of DOR), dated 23 July 2012, clearly shows the application of the Army Regulation 600-8-29, paragraph     1-41a, backdating requirement that was effectively applied with Promotion Orders 213-018, dated 31 July 2012. 

11.  On 13 January 2014, a copy of the advisory opinion was forwarded to the applicant for information and to allow her the opportunity to submit comments or a rebuttal.

12.  On 11 February 2014, the applicant rebutted the advisory opinion stating:

   a.  She was promoted by an SSB because she was erroneously discharged from the ARNG and had been in a limbo status for two years because her orders from HRC were wrong.

   b.  She did not transfer from the Reserve Component to the Active Component on 15 June 2011.  Her retirement was rescinded because her CAD was approved.  She had to retire because of a misunderstanding of her orders to active duty at Fort Campbell, KY, from 11 December 2008 to 30 November 2010.  Prior to being at Fort Campbell, KY, she was on Active Guard Reserve orders as of January 2005.
   
   c.  The mistake by HRC has affected her career.  She was commissioned in September 2004 and was on track for a great career until this debacle.  Her peers are way ahead of her and she is now in year group 2007.  She further requests an appearance before the Board if necessary.  

13.  On 1 August 2014, the applicant informed an ABCMR analyst that she had no military status and did not work for the Army during the period 30 November 2010 to 14 June 2011.

14.  Army Regulation 600-8-29 prescribes the officer promotion function of the military personnel system.  Chapter 7 provides that SSB's are governed by the same instructions provided to the boards that considered or should have considered an officer for promotion.  SSB's may be convened under 10 USC 628 to consider or reconsider commissioned or warrant officers for promotion when Headquarters, Department of the Army, discovers one or more of the following:

   a.  An officer was not considered from in or above the promotion zone by a regularly-scheduled board because of administrative error.  

	b.  The board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary).

	c.  The board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary).

15.  10 USC 628 (SSB's), paragraph (d)(2), provides that a person who is appointed to the next higher grade as the result of the recommendation of an SSB convened under this section shall, upon that appointment, have the same date of rank, the same effective date for the pay and allowances of that grade, and the same position on the ADL as he or she would have had if he or she had been recommended for promotion to that grade by the board which should have considered or which did consider him or her.  In the case of a person who is not on the ADL when appointed to the next higher grade, placement of that person on the ADL pursuant to the preceding sentence shall be only for purposes of determination of eligibility of that person for consideration for promotion by any subsequent SSB under this section.

16.  10 USC 628, paragraph (j), states the Secretary of each military department shall prescribe regulations to carry out this section.



17.  Army Regulation 600-8-10 (Leaves and Passes) prescribes the policies, operating tasks, and steps governing military personnel absences.  Paragraph 
5-15 states excess leave is a nonchargeable absence granted for emergencies or unusual circumstances.  The regulation states that during periods of excess leave:

* no leave accrues
* no pay and allowances are earned
* no entitlement to physical disability retired pay is earned 

18.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.  

2.  Evidence shows that on 11 December 2008 the applicant was ordered to active duty in the rank of 1LT for a period of 720 days in order to obtain 20 years of active federal service under the extended active duty sanctuary program.

3.  It appears the applicant was scheduled to retire at the completion of her required active service on 30 November 2010; however, her discharge was voided as she awaited approval of her CAD.  She was subsequently notified she was selected for promotion by an SSB for a reserve promotion and she was promoted to the rank of CPT with an effective date and DOR of 25 March 2010.

4.  Evidence shows the applicant was in an inactive status from 1 December 2010 to 14 June 2011.  Upon receiving orders, the applicant reported on active duty on 15 June 2011 to fulfill her 36-month active duty obligation in a voluntary indefinite status.

5.  The advisory official opined that her first day in the Active Component as part of her CAD entry was 15 June 2011; therefore, her DOR was to be backdated for each day of Active Federal Service (i.e., 251 days of Active Federal Service) in the respective same grade as established by Army Regulation 600-8-29, paragraph 1-41a and effectively re-established her DOR to CPT as 7 October 2010.

6.  However, contrary to the advisory opinion, it is evident that had the applicant's promotion been properly managed she would not have been placed in an inactive status from December 2010 to June 2011 which was the impetus for    re-establishing her DOR to CPT as 7 October 2010.  Therefore, as a matter of equity and fairness, the applicant's records should be corrected to show she was retained on active duty in the USAR in an excess leave status until she was ordered to active duty on 15 June 2011.

7.  Accordingly, Orders Number 213-018, issued by HRC, dated 31 July 2012, which adjusted her DOR to CPT to 7 October 2010 should be rescinded and the applicant's effective date and DOR should revert back to 25 March 2010. 

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.  rescinding Orders Number 213-018, issued by HRC, dated 31 July 2012; and

   b.  showing she was retained on active duty in the USAR in an excess leave status until she was ordered to active duty on 15 June 2011.



	c.  paying her any back due pay and allowances that might be due as a result of the above corrections.




      __________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)                                         AR20130020479





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ABCMR Record of Proceedings (cont)                                         AR20130020479



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