IN THE CASE OF: 

		BOARD DATE: 16 October 2014

		DOCKET NUMBER:  AR20140001938 


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 the effective date of his promotion to major (MAJ) be changed to 17 December 2000.  

2.  The applicant states:

	a.  he was considered educationally unqualified for promotion by the 2000 Reserve Component Promotion Selection Board.  As a result of being non-selected for promotion, he resigned his commissioned and reverted to enlisted status from 17 January 2001 to 23 October 2007.

	b.  in 2005 the H----- v. W----- class action lawsuit was settled.  The lawsuit charged that the 2002-2003 Reserve Component (RC) Department of the Army (DA) Major Army Promotion List (APL) board was given incorrect guidance concerning the military education requirement for promotion.  

	c.  as part of the settlement, all officers affected by the incorrect guidance were reconsidered for promotion by a standby board.  For those officers still in the Army National Guard in either an enlisted or warrant officer capacity states were directed to take action to reappoint the Soldier in his previous commissioned status with an effective date before they were reverted to enlisted or warrant officer status.  After they were reappointed, they were to be promoted, via Federal Recognition Board.  

	d.  he was not part of the original lawsuit as his board dates were 2000 and 2001, but the National Guard Bureau (NGB) reviewed board records for other
Soldiers who met the same criteria as those who were part of the lawsuit.  He met the criteria and, therefore, received a special board.

	e.  He was not notified of the results of that board, but discovered the document upon review of his records in August 2007.

	f.  He was reinstated as a captain (CPT) in October 2007 with an original DOR of 18 December 1993.  In December 2008, he inquired about back pay for the period January 2001 to October 2007.

	g.  The settlement directed after reappointment he was to be "promoted via Federal Recognition Board."  However, he was not promoted to MAJ until 
11 August 2008, and only after following the normal boarding process and being selected for promotion.

	h.   After not receiving any back pay for over three years, he petitioned the Board to adjust his mandatory removal date and date of rank to exclude his enlisted time.

	i.  The Board denied his request, stating that the Board assumed "he received back pay and therefore was made whole."

	j.  He appealed that decision and again the Board denied his request finding that NGB identified the problem with the board and used procedures in the class action lawsuit as the model for making the corrections.

	k.  Once he was extended the same treatment as others in the lawsuit the Army became bound by the stipulations of the settlement to include back pay.

	l.  Though this adjustment will not undo the injustice of being erroneously forced to resign his commission, it will in part satisfy his claim by giving him the same financial benefit as others affected by DA giving incorrect guidance.

3.   The applicant provides:

	a.  U.S Army Human Resources Command (HRC) memorandum, subject:  Eligibility for Promotion as a Reserve Commissioned Officer as a Result of a Special Selection Board, dated 12 May 2006.

	b.  NGB memorandum, subject:  Promotion as a Reserve Commissioned Officer of the Army.

	c.  Special Orders 209 AR, NGB, dated 12 August 2008.
	d.  Joint Force Headquarters Wisconsin, Wisconsin National Guard, memorandum, Subject:  Application for Correction of Military Record, dated 
10 September 2013.

	e.  Special Orders 245 AR, NGB, dated 21 December 1988.

	f.  Special Orders 5 AR, NGB, dated 27 January 1994.

	g.  Special Orders 85 AR, NGB, dated 27 March 2001.

	h.  Special Orders 286 AR, NGB, dated 20 November 2007.

	i.  Special Orders 298 AR, NGB, dated 29 November 2007.

	j.  Special Orders 79 AR, NGB, dated 26 April 2010.

	k.  Defense Finance and Accounting (DFAS) Case Management System Case ID 765165.

	l.  DFAS Case Management System Case ID 2269417.

	m.  Email note, dated 25 June 2013.

	n.  Army Board for Correction of Military Records (ABCMR) letter, dated 
17 January 2014.

	o.  DD Form 149 (Application for Correction of Military Records), dated 
23 August 2013.

	p.  Settlement Agreement, Case No. CIV-04-945-C.

	q.  calculations showing back pay owed to the applicant from 17 January 2001 through 17 December 2007.

	r.  ABCMR letter, dated 22 June 2011, with Record of Proceedings (ROP) for AR20110006343.

	s.  ABCMR letter, dated 26 June 2012 with ROP for AR20110024619.


CONSIDERATION OF EVIDENCE:

1.  The applicant is a LTC in the Wisconsin Army National Guard (WIARNG).  

2.  Special Orders 5 AR, NGB, dated 27 January 1994 announced he was granted federal recognition (FEDREC) as a CPT effective 18 December 1993.

3.  A 12 May 2006 HRC memorandum notified the NGB that the applicant had been selected for promotion to MAJ by an SSB that adjourned on 4 November 2005.  The SSB was convened to reconsider for promotion officers who may have been improperly nonselected for promotion.  The effective date of the promotion is shown as 17 December 2000.  The memorandum further states that if the applicant had become a warrant officer or enlisted as a result of the nonselect he may have that status voided and retire as a reserve officer.    

4.  A 12 August 2008 NGB memorandum notified the applicant that he had been promoted to MAJ.  The effective date of the promotion is shown as 11 August 2008 and the DOR as 17 December 2000.  The memorandum further states "If this promotion is a result of a recommendation by a special selection board, the date of rank, effective date for pay and allowances and position on the reserve active-status list is the same as if you had been recommended by the selection board which did not recommend you or consider you (10 USC 14502(e)(2))."

5.  Special Orders 209 AR, NGB, dated 12 August 2008, announced FEDREC was granted to the applicant as a MAJ.  The effective date is shown as 
11 August 2008 and the promotion eligibility date as 17 December 2000. 

6.  The lawsuit Settlement Agreement, Case No. CIV-04-945-C states in item 5e (Back Pay) 2:  "Settlement Class Members who performed paid military service after their non-selection for promotion, and are retroactively promoted via the Special Selection Board process, will be entitled to pay at the higher grade for service performed during the retroactive period provided that such entitlement is not precluded by law or regulation as may be applicable to particular Settlement Class Members.

7.  Army Regulation (AR) 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the ARNG and of commissioned and warrant officers (WO) of the USAR.  Chapter 2 contains guidance on promotion eligibility and qualification requirements.  Chapter 4 contains guidance on processing selection board recommendations.
   a. Table 2-1 lists the time-in-grade (TIG) requirements for commissioned officers, other than warrant officers.  It states that the maximum number of years a CPT serves prior to mandatory promotion consideration to MAJ is normally       7 years.

   b. Paragraph 4-17 provides guidance on PEDs and DORs.  It states, in pertinent part, that the PED is the date an officer meets the eligibility criteria for promotion to the next higher grade, and the DOR is the date the officer actually or constructively was appointed or promoted to a specific grade.  It is the date used to determine the relative seniority for officers holding the same grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the effective date of his promotion to MAJ should be changed to 17 December 2000.  

2.  The applicant was recommended for promotion to MAJ by an SSB that was convened to reconsider those who might have been improperly nonselected for promotion.  The effective date is shown as 17 December 2000. 

3.  A 12 August 2008 NGB memorandum announced he was promoted to MAJ with an effective date of promotion of 11 August 2008 and DOR of 17 December 2000.  The memorandum further states “If this promotion is a result of a recommendation by a special selection board, the date of rank, effective date for pay and allowances and position on the reserve active-status list is the same as if you had been recommended by the selection board which did not recommend you or consider you (10 USC 14502(e)(2)).”

4.   AR 135-155 states the maximum TIG for promotion to MAJ is 7 years.  He was promoted to CPT effective 18 December 1993.  His effective date for promotion to MAJ would have been 17 December 2000.

5.  The 12 August 2008 NGB memorandum and NGB Special Orders 209 AR dated 12 August 2008 list his effective date for promotion to MAJ as 11 August 2008.  They should be corrected to show the effective date of his promotion to MAJ as 17 December 2000. 

6.  In view of the foregoing, the applicant's request should be granted.


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 and State Army National Guard records of the individual concerned be corrected by:

	a.  amending the 12 August 2008 NGB memorandum and NGB Special Orders 209 AR dated 12 August 2008 to show the effective date of the applicant's promotion to MAJ as 17 December 2000.
 
	b.  requesting DFAS audit his pay records and paying him all pay due as a result of this correction.



      ______________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)                                         AR20100000119



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ABCMR Record of Proceedings (cont)                                         AR20140001938



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