IN THE CASE OF:  	  

		BOARD DATE:  9 September 2014	  

		DOCKET NUMBER:  AR20140002411 


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 reconsideration of his earlier request for correction of his Army National Guard (ARNG) date of rank (DOR) to captain (CPT) from 
28 May 2005 to 29 July 2004. 

2.  As a new issue, he requests, in effect, promotion to major (MAJ) with an adjustment of his ARNG DOR to MAJ from April 2011 to 30 July 2007.  

3.  The applicant states, in effect, he previously applied to the Army Board for Correction of Military Records (ABCMR) for correction of the date of his initial appointment as a second lieutenant (2LT) to 29 May 1998 and promotion to CPT effective 29 July 2004.  The Board granted him partial relief in that it recommended an adjustment to his 2LT DOR to 29 May 1998 and adjusted his first lieutenant (1LT) DOR to 29 May 2000.  The Board did not recommend that he be promoted to CPT but recommended his records be forwarded to a special selection board (SSB) for promotion consideration to CPT under the 2004 criteria.  The SSB selected him for promotion to CPT with a DOR of 28 May 2005.  The administrative errors in his delayed promotions were not due to his own fault, the delays resulted due to the ARNG losing his records.  The Board acknowledged that.  He continued to serve faithfully even though the errors had severely hurt his career.  He would have been eligible for promotion to MAJ much earlier.  However, his DOR to CPT was not adjusted until 2010 with a DOR as 28 May 2005, thus preventing his earlier promotion to MAJ. 



4.  The applicant provides a binder consisting of 6 sections: 

* Section 1: initial packet and ruling of rank correction
* Section 2: promotion records with multiple conflicting dates
* Section 3: active duty and order statements
* Section 4: orders
* Section 5: officer evaluation reports
* Section 6: course certificates
* Section 7: academic evaluation reports
* Section 8: physical training scores and awards

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080005015, on 12 June 2008. 

2.  The applicant does not meet the two-tiered criteria for a request for reconsideration for correction of his ARNG DOR to CPT from 28 May 2005 to 
29 July 2004, in that his request was neither received within 1 year of the original Board's decision nor does it contain new evidence.  

	a.  His original case was adjudicated on 12 June 2008.  His current application is dated 30 January 2014.  Thus it was not received within 1 year of the original Board's decision.  

	b.  However, the CPT DOR reconsideration issue is directly related to his new issue regarding his promotion and/or DOR to MAJ.  Therefore, as an exception to policy, his request will be reconsidered by the Board.

3.  The applicant's records show he was born in May 1970. 

4.  Having had prior enlisted service, he was appointed as a 2LT in the Arkansas ARNG (ARARNG) and executed an oath office on 29 May 1998, at age 28.  There is no indication he was granted Federal recognition for this appointment.

5.  On 2 June 1998, he submitted a DA Form 4187 (Personnel Action) requesting an interstate transfer to the Florida ARNG (FLARNG).  His request was approved.  Accordingly, on 30 September 1998, he executed an oath of office in the FLARNG, in the rank of 2LT.  He was assigned as a Physician Assistant to a medical detachment. 

6.  On 4 February 1999, the National Guard Bureau (NGB) published Special Orders (SO) Number 26 AR transferring him from the ARARNG to FLARNG. 

7.  On 26 July 2002, despite not having been extended Federal recognition for the initial appointment in either State, the FLARNG published orders promoting him to 1LT, effective 26 July 2002.  

8.  Also despite not having been extended Federal recognition for the initial appointment in either State, the NGB published SO Number 224-AR extending him Federal recognition for promotion to 1LT, effective 26 July 2002. 

9.  On 11 May 2006, the FLARNG published Orders 131-040 promoting him to CPT, effective 12 May 2006.  

10.  On 1 March 2007, he executed an oath of office in the rank of 1LT in the FLARNG.  Accordingly, on 1 August 2007, the NGB published SO Number 184 AR extending him Federal recognition as a 1LT in the FLARNG, effective 
1 March 2007. 

11.  On 3 April 2008, he petitioned the ABCMR for correction of his initial appointment date as a 2LT to 29 May 1998 and promotion to CPT, effective 29 July 2004.  

12.  On 12 June 2008, the Board adjudicated his case and granted him partial relief in that it recommended: 

* adjusting his DOR and effective date to 2LT to 29 May 1998
* adjusting his DOR and effective date to 1LT to 29 May 2000
* forwarding his records before an SSB for promotion consideration to CPT under the 2004 criteria

13.  On 17 September 2008, the NGB published SO Number 237 AR adjusting his DOR and effective date to:

* 2LT, from 1 March 2007 (paragraph 10 above) to 29 May 1998
* 1LT, from 26 July 2002 (paragraph 8 above) to 29 May 2000

14.  On 5 December 2008, the U.S. Army Human Resources Command (HRC) notified him that his record had been identified to the earliest available SSB for promotion consideration to CPT under the 2004 criteria.  If not selected, he would also be considered under the 2005 criteria. 

15.  On 23 September 2009, HRC issued him a promotion memorandum.  This memorandum informed him that an SSB convened on 15 May 2009 and selected him for promotion under the 2004 year criteria.  His DOR to CPT was listed as  28 May 2005. 

16.  On 21 January 2010, the FLARNG published orders 021-002 promoting him to CPT, effective 28 May 2005.  Accordingly, on 27 January 2010, the NGB published SO Number 15 AR extending him Federal recognition for promotion to CPT, effective 28 May 2005. 

17.  On 4 May 2010, the FLARNG issued him a Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter). 

18.  On 25 March 2011, the FLARNG published Orders 084-055 discharging him from the ARNG and transferring him to the Retired Reserve in the rank of CPT, effective 31 January 2011, at age 40.  

19.  On 30 May 2014, an advisory opinion was received from the NGB in the processing of this case.  An advisory official recommended the applicant's case be returned without action.  He stated: 

	a.  Federal recognition Order 15 AR, dated 27 January 2010, shows the applicant's DOR was amended to read 28 May 2005.  This is the result of SSB proceedings, dated 23 September 2009.  His DOR is correct according to the SSB recommendation.

	b.  On 31 January 2011, he retired from the FLARNG.  Upon amendment of his DOR to CPT, he would have met the minimum time in grade (TIG) requirements to be considered for promotion to MAJ.  However, meeting the minimum TIG does not guarantee selection for promotion.  In accordance with Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), "An officer who has an established date for removal from the Reserve Active Status List (RASL), or a warrant officer (to include a commissioned warrant officer) with an established date for removal from active status, that is 90 days or less from the convening date of the selection board for which the officer would otherwise be eligible, is not eligible for consideration (Title 10, U.S. Code, section 14301(f) and 12242).  An established date for removal is a date that is prescribed by statute, regulation, or published on orders and not in conflict with law or regulation." 


	c.  The CPT to MAJ board results were published on 4 October 2011.  The applicant retired about 9 months prior to this date.  There is no evidence to support his contention that he would have been promoted to MAJ.

20.  The applicant was provided a copy of this advisory opinion to give him an opportunity to comment and/or submit a rebuttal.  He did not respond.

21.  Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve officers.  Promotion consideration from CPT to MAJ by a mandatory Reserve Component Selection Board (RCSB) requires completion of 7 years in the lower grade.  It also states SSBs may be convened to consider or reconsider commissioned officers for promotion when Headquarters, Department of the Army discovers one or more of the following: an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error, (SSB required); the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary); or the board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary).

22.  Army Regulation 135-155, Table 2-1 states the maximum time in service for promotion from 1LT to CPT is 5 years

23.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers), paragraph 7-2f(1)(b) states a CPT will be removed from an active status 30 days after their 53d birthday if age 25 or older on initial appointment.

DISCUSSION AND CONCLUSIONS:

1.  It is unclear why the applicant's initial appointment to 2LT in the ARARNG or the FLARNG was not timely processed effective 29 May 1998, the date he took the oath of office.  This led to a series of administrative errors that affected his promotion to 1LT and CPT.  

2.  Nevertheless, the Board corrected his records and adjusted his DOR and effective date of appointment to 2LT as well as promotion to 1LT.  The Board also recommended his records be considered by an SSB under the 2004 criteria. The SSB convened in May 2009 and selected him for promotion.  He was promoted with a DOR of 28 May 2005 which is reflected on his promotion memorandum and Federal recognition orders.  That was also at his maximum 

time in service point.  The applicant may be presuming he would have been selected for promotion to a unit vacancy prior to that date.  However, 10 years have now passed and such a presumption would be purely speculative.

3.  Based on his adjusted DOR to CPT, he could have been eligible for consideration for promotion to MAJ had he not transferred to the Retired Reserve on 31 January 2011.  However, by law (Title 10, U.S. Code, section 14301(f) and 12242) and regulation (Army Regulation 135-155), an officer who has an established date for removal from the RASL with an established date for removal from active status, that is 90 days or less from the convening date of the selection board for which the officer would otherwise be eligible, is not eligible for consideration. 

4.  His contention that his DOR to MAJ should be changed from April 2011 to 30 July 2007 is rejected.  He was not required to be removed from an active status for about another 12 years.  It appears he voluntarily chose to request transfer to the Retired Reserve before any action could have been taken regarding his promotion to MAJ.  He was neither eligible for, nor considered or selected for promotion to MAJ or assigned a DOR in that grade.  As such, 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:

1.  As for the issue of his DOR to CPT, 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 to amend the decision of the ABCMR set forth in Docket Number AR20080005015, on 12 June 2008. 

2.  As for the new issue, in effect promotion to and an adjusted DOR to MAJ, 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)                                         AR20140002411



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