IN THE CASE OF:	  

		BOARD DATE:	  2 September 2014

		DOCKET NUMBER:  AR20130020824 


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) from 28 May 2013 to July 2012.

2.  The applicant states the criteria for promotion to CPT required 2-years time in grade (TIG) and completion of the Chaplain Basic Officer Leader Course (CHBOLC) in the U.S. Army Reserve (USAR).  He had all of this completed prior to July 2012.  His 1-year TIG was erroneously overlooked when he was initially given his DOR to first lieutenant (1LT).  He was erroneously given a DOR to 1LT of 4 March 2011 and it should have been 4 March 2010.  This would have been correct with the 1-year TIG he was granted at the time of his commission.

3.  The applicant provides copies of the following:

* Appointment memorandum
* Orders C-05-107694
* Orders C-05-107694A01
* Email correspondence from Reserve Chaplain Personnel Management office and Office of the Chief of Chaplains

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed in the USAR, Chaplain Branch, as a 1LT, effective 4 March 2011, with 3 years of creditable service credit.


2.  He provided copies of the following:
   
   a.  Orders C-05-107694, issued by the U.S. Army Human Resources Command (HRC) on 24 May 2011, which appointed him in the USAR as a 1LT with an effective date of 4 March 2011.  His DOR is listed as 4 March 2011.

   b.  An email from the Reserve Chaplain Personnel Management office, dated 8 June 2012, wherein he was advised that he should have been given 1-year TIG when he became a chaplain and his DOR should be 4 March 2010.  HRC had been contacted to make that correction, but that meant it would be August before they could submit his name for promotion.  It would be December 2012/January 2013 before he could receive promotion orders.

   c.  Orders C-05-107694A01, issued by HRC on 21 June 2012, amended Orders C-05-107694 by correcting his DOR to 1LT from 4 March 2011 to 4 March 2010.

   d.  An email from the Office of the Chief of Chaplains, dated 23 October 2013, wherein he was advised that he was given the 1-year TIG when he was appointed and his DOR should have been 4 March 2010.  Having a DOR of 4 March 2010 would have made him eligible to be reviewed for promotion on the April 2012 Chaplain Captain Certification Review (CCCR) board.  The list for the April 2014 CCCR was approved on 24 July 2012 which should have been his DOR to CPT.

3.  In an advisory opinion, dated 19 March 2014, the Personnel Management Officer, Office of the Chief of Chaplains, stated:

   a.  The applicant was appointed as a 1LT with 1-year TIG on 11 February 2011.  His effective DOR at that point was 11 February 2010.  He completed the CHBOLC on 16 August 2011 making him eligible for promotion to CPT.

   b.  The applicant should have been considered for promotion after 11 February 2012 during the next CCCR board.  On 21 June 2012, the applicant's DOR to 1LT was changed to 4 March 2010.  He was promoted to CPT on 28 May 2013.

   c.  The applicant should have been reviewed by the April 2012 CCCR board held at the Chief of Chaplains Office.  That is an administrative board and as long as chaplains have completed CHBOLC and have a valid security clearance they can be promoted.  The applicant's Secret clearance was granted on 31 October 2011, making him eligible to be promoted.

   d.  It was recommended the applicant's DOR to CPT be corrected to 28 May 2012 with entitlement to back pay and allowances.

4.  On 1 April 2014, the advisory opinion was forwarded to the applicant for acknowledgment and/or rebuttal.  He did not respond.

5.  Authority granted to the Secretaries of the Military Departments in Secretary of Defense Memorandum, subject:  Redelegation of Authority under Executive Order 12396, dated 9 December 1982, to appoint officers under section 624 of Title 10, U. S. Code, in the grades of O-2 and O-3 was rescinded effective 1 July 2005 based on advice from the Department of Justice that prohibits redelegation below the Secretary of Defense of the President’s authority to appoint military officers.  All military officer appointments under section 12203 of Title 10, U.S. Code, including original appointments, in the Reserve of the Army, Reserve of the Air Force, Naval Reserve, and Marine Corps Reserve, not previously approved by 30 June 2005, shall also be submitted to the Secretary of Defense.

6.  Army Regulation 135-100 (Army National Guard and Army Reserve Appointment of Commissioned and Warrant Officers of the Army) prescribes policy and procedures for the appointment of commissioned and warrant officers in the Army National Guard of the United States and the USAR.  The regulation states in paragraph 1-9 that applicants who qualify for appointment in the Chaplain Branch will be appointed in the highest grade to which entitled.  Creditable service credit of 3 years or more allowed for appointment in the grade of 1LT.

7.  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 in the USAR.  The regulation states promotion from 1LT to CPT requires completion of 2-years TIG and a resident OBC.  

8.  Title 10, U.S. Code, section 741(d)(2) states that unless otherwise provided by law, the DOR of an officer who holds a grade as a result of a promotion is the date of his appointment in that grade.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was appointed in the USAR as a 1LT with 3 years of creditable service credit.  At the time of his appointment, his DOR to 1LT was established 

either as 11 February 2011 (per the Office of the Chief of Chaplains) or 4 March 2011 (per the Reserve Chaplain Personnel Management office).  He completed the CHBOLC on 16 August 2011 and was granted a Secret clearance on 31 October 2011.  

2.  On 8 June 2012, he was advised his DOR to 1LT should have been 4 March 2010, it would be corrected, and thereafter his name would be submitted for promotion.  On 21 June 2012, his DOR to 1LT was corrected to 4 March 2010.  

3.  Based on this DOR he would have been eligible for review by the April 2012 CCCR.  It appears he was reviewed by a 2013 CCCR and he was promoted to CPT on 28 May 2013.  

4.  By regulation, promotion from 1LT to CPT in the USAR requires 2 years TIG and completion of a resident OBC.  Based on his award of 3 years of creditable 
service credit and 2-years TIG requirement for promotion to CPT, and meeting all other requirements, he would have been eligible for promotion to CPT in 2012 had his erroneous DOR to 1LT been corrected prior to the April 2012 CCCR.  

5.  His promotion to CPT was delayed through no fault of his own; therefore, as a matter of equity in this case and notwithstanding the advisory opinion, he is entitled to an adjustment to his DOR to CPT to 24 July 2012, the approval date of the 2012 CCCR board.

6.  Notwithstanding the Office of the Chief of Chaplains advisory opinion recommending full relief, the Army Board for Correction of Military Records (ABCMR) may only correct Army records.  The Board has no authority to correct records created by the other Services or the Department of Defense.  Any correction by the ABCMR must comport with other laws.  The Board may not ignore a requirement contained in, or outcome dictated by, another statute.  Where officer personnel issues are involved that require approval by the Secretary of Defense, the Board's hands are often tied.

7.  Consequently, based on the authorities cited above, any correction to the applicant's effective date to CPT would effectively amend the Secretary of Defense's action and goes beyond the authority of this Board.  Unfortunately, in view of the foregoing, he is not entitled to adjustment of his effective date with entitlement to all back pay and allowances.


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 adjusting the applicant's DOR to CPT from 28 May 2013 to 24 July 2012.

2.  The Board further determined 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 effective date for promotion to CPT to 24 July 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)                                         AR20130020824





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ABCMR Record of Proceedings (cont)                                         AR20130020824



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