IN THE CASE OF:  

		BOARD DATE:  11 December 2014	  

		DOCKET NUMBER:  AR20140001783 


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 correction of his military records to show his date of rank (DOR) for captain (CPT) as 19 August 2008.

2.  The applicant states, in effect, his promotion to CPT was controlled only by his status at the time.  He was a member of the National Guard deployed in support of Operation Iraqi Freedom (OIF).  Initially, human error caused a delay in his packet going before a promotion board.  Then he was deployed to a combat zone and worthy of promotion, but the regulation prevented him from being promoted because he was in a Title 10 status.  Except for approximately 10 days following his Direct Commissioned Officer Course, he was on active duty from the beginning of the Officer Basic Course (OBC) in February 2008 through his return from deployment in August 2009.  His OBC classmates, who were in an active duty status, were promoted in or about August 2008.  He has served the same amount of active duty, including deployment to a combat zone, as his classmates, yet he is punished with a DOR more than a year later because he was in the National Guard.

3.  When he was promoted late, he had considered applying to correct the injustice.  He entered the Regular Army (RA) in October 2010.  He has been a Soldier just about all of his adult life and knows that sometimes things just do not go your way.  You suck it up and drive on.  That is how he has felt about his DOR.  When he came into the RA, he informally inquired if his DOR could be changed as part of that process.  He was told no.  He now realizes this 1 year delay in DOR will require him to wait approximately 2 years longer than his OBC classmates for promotion consideration to major.  He believes that not being promoted with his classmates is unjust.  In fiscal year (FY) 2012, he understood he would have been considered for promotion in 2016, a year after his classmates.  In FY 2013, that promotion consideration was pushed back to FY2017.  Having to wait an additional 2 years for consideration for promotion is an injustice he should not have to endure, simply because he was in the National Guard serving on active duty.  He already has over 22 years of service; this is mostly likely his last chance for promotion.

4.  The applicant provides copies of:

* DD Forms 214 (Certificate of Release or Discharge from Active Duty) ending on 1 March 1998, 28 August 2009, and 14 October 2010
* National Guard Bureau (NGB) Form 22 (National Guard Report of Separation and Record of Service), effective 1 March 2002 and 
16 October 2010
* Orders 135-1027, Texas Army National Guard (TXARNG), dated 15 May 2009
* ARNG Retirement Points History Statement, dated 8 August 2002
* Special Orders Number 207 AR, NGB, dated 25 August 2009
* Memorandum for Promotion to CPT, NGB, dated 25 August 2009
* Orders 037-226, TXARNG, dated 6 February 2008
* Orders 042-424, TXARNG, dated 11 February 2008
* Orders 077-354, TXARNG, dated 17 March 2008
* Orders 170-086, TXARNG, dated 18 June 2008
* Orders 189-172, TXARNG, dated 7 July 2008
* Orders 191-483, TXARNG, dated 9 July 2008
* Orders 192-003, TXARNG, dated 10 July 2008
* Orders 199-716, TXARNG, dated 17 July 2008
* Orders 207-173, TXARNG, dated 25 July 2008
* Orders 210-348, TXARNG, dated 28 July 2008
* Orders 224-214, TXARNG, dated 11 August 2008
* Orders 228-589, TXARNG, dated 15 August 2008
* Orders 240-156, TXARNG, dated 27 August 2008
* Orders 240-157, TXARNG, dated 27 August 2008
* Permanent Orders 308-2, Fort Stewart, GA, dated 3 November 2008 with Soldier manifest
* Permanent Orders 1A-09-127-015, Headquarters, 1st Army, dated 7 May 2009
* Orders 240-383, TXARNG, dated 28 August 2009
* Email communications, dated between 7 May 2008 and 5 June 2009 (56 pages)
* A DA Form 638 (Recommendation for Award), dated 13 May 2009 with Certificate and Permanent Order Number 134-014 announcing the applicant's Bronze Star Medal
* A DA Form 67-9 (Officer Evaluation Report) for the period 14 June 2007 to 1 April 2008 showing 9 rated months
* A DA Form 67-9 for the period 14 June 2007 to 31 October 2008 showing 6 rated months
* A DA Form 67-9 for the period 1 November 2008 to 31 October 2009 showing 12 rated months
* Major Promotion Plan, dated 4 April 2012 (5 pages)

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.  At the time of his application, the applicant was serving in the Regular Army, Judge Advocate General’s (JAG) Corps, in the rank of CPT.

3.  The available evidence shows the applicant, who was a prior enlisted Soldier, was appointed as a first lieutenant (1LT), JAG Corps, U.S. Army Reserve (USAR), on 14 June 2007.  At the time he was serving with the 949th Base Support Battalion at Fort Worth, TX.

4.  Orders 135-1027, TXARNG, dated 15 May 2009, announced the applicant's promotion to CPT effective 24 April 2009 with a DOR of 14 June 2007.  The additional instructions stated he would not receive pay for this rank until Federal Recognition was confirmed.

5.  Special Orders Number 207 AR, NGB, dated 25 August 2009, announced Federal recognition in the ARNG for the applicant's promotion to CPT with an effective date of 19 August 2009.  The subsequent promotion memorandum from the NGB with the same date, shows his DOR for CPT as 
19 August 2009.
6.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB.  It provided that:

	a.  The applicant was initially appointed as a 1LT, JAG Corps, of the TXARNG on 14 June 2007.  He did not have any prior commissioned service.  He received 1 year of constructive service credit giving him a DOR of 14 June 2006.

	b.  According to National Guard Regulation 600-100 and Army Regulation 135-155, the minimum time in grade for promotion eligibility from 1LT to CPT is 
2 years.  The applicant's Federal recognition for CPT was received 14 months after meeting this 2-year minimum, resulting in his DOR of 19 August 2009.  However, there is no other evidence proving he was eligible for promotion to CPT any sooner.

	c.  The advisory opinion recommended that the applicant's request be disapproved.

7.  On 5 November 2014, a copy of the advisory opinion was sent to the applicant for his information and opportunity to respond.

8.  In a letter dated 7 November 2014, the applicant provided the following comments concerning the advisory opinion discussed above.

	a.  He is not alleging that anything improper was done regarding him not being promoted to CPT sooner.  He contends that he was told his promotion packet was submitted or was intended to have been submitted in June or July 2008 and that human error caused this not to happen.

	b.  The advisory opinion verifies that he was eligible for promotion in the June 2008 timeframe.  He contends that had his packet been submitted on time, he would most likely have received Federal recognition between August and October 2008.

	c.  The applicant accepts that as a member of the National Guard, he was subject to the rules and regulations of the National Guard.  However, once he deployed, he was not promoted because of the procedures the National Guard uses to slot deployed Soldiers showed he was not in an authorized position.  To be promoted he had to be slotted in a position in the Rear.  He understands that these procedures changed in the April timeframe allowing him to be processed for promotion.

	d.  The applicant is not basing his request on any violation of regulation or law.  He is asking that the Board use its equitable powers to adjust his DOR to a date commensurate with his peers and the time he has served on active duty.  He argues that the only reason his DOR is not commensurate with his peers is because he was in the National Guard.  He served on active duty for nearly the entire relevant time period, just like his Regular Army peers.  Because his DOR is a year later than his peers, he may have to wait up to 2 additional years to be eligible for promotion to major, even though he served on active duty for the relevant time period.  The consequence of this difference in status is unfair to him.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected, as a matter of equity, to show his DOR for CPT as 19 August 2008.

2.  The available evidence shows the applicant was granted Federal recognition in the rank of CPT with an effective date and DOR of 19 August 2009.

3.  The applicant contends that had his promotion packet been submitted earlier, when he initially became eligible for promotion consideration, he would have received Federal Recognition between August and October 2008.  Unfortunately, there is no available evidence showing he was fully eligible for promotion consideration on any earlier date.  The advisory opinion states he met the minimum time in grade for promotion in June 2008; however, meeting the grade requirements is not the same as being eligible for promotion.  He provides no evidence from his state explaining the 14-month gap.

4.  In view of the above, the applicant's request should be denied.

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)                                         AR20140001783



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ABCMR Record of Proceedings (cont)                                         AR20140001783



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