IN THE CASE OF:	  

		BOARD DATE:  25 February 2014

		DOCKET NUMBER:  AR20140000019 


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 his date of rank (DOR) to captain (CPT)/O-3 be adjusted to 24 September 2009 vice 29 September 2010.

2.  The applicant states:

	a.  His DOR to CPT should be adjusted to 24 September 2009 as that was the date he was hired to be an Active Guard Reserve (AGR) [in the Alabama Army National Guard (ALARNG)] in the position as battalion training officer, a CPT position.  He was a senior first lieutenant (1LT) at the time with nearly 26 months time in grade (TIG) and he assumed he would be promoted to CPT because he was in the position.

	b.  When he asked the battalion commander, Lieutenant Colonel (LTC) JW, if he would be promoted, he was told no.  LTC JW stated the reasons were that he (LTC JW) had been a 1LT for 7 years, he (the applicant) had just been hired as an AGR and was going to be making plenty of money, and his plan was to keep him as a 1LT until he was boarded (presumably referring to the Department of the Army (DA) board).  He further stated that after he was selected for promotion by the DA board, he was going to wait until the last minute to promote him.  He was going to do the same thing once he was eligible for promotion to major (MAJ).  This would allow the battalion to keep him for up to 15 years to maintain continuity in the AGR program and it was his discretion as commander to do so. 

	c.  The most frustrating and insulting part was that LTC JW wrote and signed his Officer Evaluation Report (OER) that stated "he was ready for increased responsibility and duties," that he possessed unlimited potential for promotion, and he "must be promoted."  After he wrote the OER, LTC JW stated he was not going to promote him.  He was perplexed with the logic as he was given an outstanding OER, was hired for a CPT position, and was never negatively counseled.  He only recently found out that it was an option to file an application with the ABCMR.

3.  The applicant provides two orders, five DA Forms 67-9 (OER), a memorandum, and three pages of email.

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.  The applicant was serving as a Reserve officer in the ALARNG and he held the primary specialty 11A (Infantry).  He attended and successfully completed the Infantry Officer Basic Course from 21 August to 14 December 2005.  On 15 August 2007, he was promoted to the rank/grade of 1LT/O-2.

3.  On 24 September 2009, he entered active duty in an AGR status.  He was assigned to the ALARNG, 1st Battalion, 167th Infantry Regiment, Talladega, AL. 

4.  Orders 169-518, dated 18 June 2010, issued by the ALARNG, promoted him to CPT effective 17 June 2010.  These orders stated he would not be paid at the promoted rank until Federal Recognition was confirmed.

5.  Special Orders Number 220 AR, dated 4 October 2010, issued by the National Guard Bureau (NGB), extended him Federal recognition for the purpose of promotion to CPT with a DOR and effective date of 29 September 2010.

6.  On 31 December 2013, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB.  The advisory official recommended disapproval of the applicant's request for an adjusted DOR to CPT of 24 September 2009.  The advisory official stated:

	a.  The applicant entered active duty as an AGR on 24 September 2009, in duty position S-3 Air, which was an O-3 position.  The ALARNG promoted him to CPT on 17 June 2010 and he was extended Federal Recognition on 29 September 2010.  The applicant was not DA board selected for promotion to CPT.  He would have been in the zone of consideration for the Fiscal Year 2011 (FY 11) DA board because his DOR to 1LT was 15 August 2007.  He was promoted by unit vacancy prior to the FY 11 DA board. 

	b.  The ALARNG did not violate any regulations in administering the applicant's promotion.  Although eligible for promotion earlier, his chain of command was within its discretion to process the promotion in the manner it did.  He was promoted within the requirements of Army Regulation 135-155 (Promotion of Commissioned Officers an Warrant Officers Other Than General Officers) and National Guard Regulation 600-100 (Commissioned Officers-Federal Recognition and Related Actions).

	c.  The applicant was a 1LT for 3 years and 1 month.  This TIG did not approach the maximum TIG of 5 years as a 1LT as determined by Army Regulation 135-155, Table 2-1.

	d.  The ALARNG concurs with this recommendation.

7.  On 2 January 2014, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

8.  Title 10, U.S. Code, section 14308(f) states the effective date of a promotion of a Reserve officer of the Army who is extended Federal recognition in the next higher grade in the ARNG shall be the date on which such Federal recognition in that grade is so extended.

9.  Army Regulation 135-155, table 2-1, states the minimum time in grade for promotion to CPT is 2 years (unit vacancy promotion) and the maximum is 5 years (mandatory promotion).

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was promoted to 1LT in the ARNG on 15 August 2007.  As he met the education requirements, he met the minimum TIG and was eligible for a unit vacancy promotion to CPT on 15 August 2009.  He entered active duty as an AGR on 24 September 2009, his unit promoted him on 17 June 2010, and he was extended Federal Recognition in the rank of CPT on 29 September 2010.  He met the maximum TIG requirements for promotion to CPT on 15 August 2012.  

2.  The eligibility for promotion does not mean automatic promotion to the next highest grade.  National Guard promotions are a function of the State and the fact that he was promoted by his ARNG unit to CPT and granted Federal Recognition on 29 September 2009 does not constitute an error on the part of his unit.  

3.  In view of the foregoing, he is not entitled to the requested relief.

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)                                         AR20140000019





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ABCMR Record of Proceedings (cont)                                         AR20140000019



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