BOARD DATE:	  28 August 2014

		DOCKET NUMBER:  AR20140004875 


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 retroactive unit vacancy promotion to captain (CPT) in the U.S. Army Reserve (USAR) with back pay and allowances as well as retirement point credit. 

2.  The applicant states he was placed in the USAR Control Group (Individual Ready Reserve (IRR)) from August 2011 when the 339th Combat Support Hospital (CSH) was disbanded until May 2012 when he was commissioned in the Pennsylvania Army National Guard (PAARNG).  Based on his review of the requirements and various correspondence he believes he is entitled to restoration of pay, retirement point credit, and a potential vacancy promotion with a backdated date of rank.  During 2011, he did drill with the PAARNG unit in which he was eventually attached so an opening existed when the 339th CSH was disbanded.  Furthermore, the PAARNG was willing to take over his BSN- STRAP (Specialized Training Assistance Program) contract and obligation. 

3.  The applicant provides:

* 2009 USAR Appointment memorandum
* ARNG Retirement Points History Statement
* Email exchange
* BSN-STRAP Contract
* National Guard Bureau (NGB) Form 62E (Application for Federal Recognition as an ARNG Officer or Warrant Officer and Appointment as a Reserve Commissioned Officer or Warrant Officer of the Army) 
* U.S. Army Human Resources Command (HRC) Form 249-E (Chronological Statement of Retirement Points)
* Orders C-11-116280 (release from the IRR to the Standby Reserve)
* Orders C-11-116280R (revocation of release) 

CONSIDERATION OF EVIDENCE:

1.  Having had previous service in the U.S. Coast Guard, the applicant was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 27 August 2009. 

2.  A DA Form 5074-1-R (Record of Award of Entry Grade Credit Health Services Officer)) was completed and submitted on 7 December 2009 awarding him 11 months and 16 days of service credit (Registered Nurse License), thus establishing his entry grade as second lieutenant and his date of rank as 11 September 2008. 

3.  He was promoted to first lieutenant (1LT) on 10 March 2010 and he was assigned to the 339th CSH, Harrisburg, PA, a troop program unit of the USAR.  He also completed the Army Medical Department (AMEDD) Basic Officer Leader Course from 5 November to 3 December 2010.  His statement of Retirement Points shows he was in the IRR from 16 November 2011 through 11 May 2012.

4.  On 30 April 2012, he submitted an application for appointment as a commissioned officer of the ARNG. 

5.  On 12 May 2012, he executed an oath of office as a commissioned officer in the PAARNG.  The NGB followed that with the publication of Special Orders Number 357 AR extending him Federal recognition. 

6.  On 8 September 2012, he was flagged due to Army Physical Fitness Test failure. 

7.  An advisory opinion was received on 13 June 2013 from the NGB in the processing of this case.  An NGB official recommended disapproval of the applicant's request.  He stated: 

	a.  According to the applicant's Retirement Points Annual Statement, he was a member of the IRR from 16 November 2011 to 11 May 2012.  His oath of office and Federal recognition order dated 10 October 2012 show he joined the PAARNG on 12 May 2012.

	b.  In accordance with National Guard Regulation (NGR) 600-100 (Commissioned Officers-Federal Recognition and Related Personnel Actions), paragraph 8-7(b), "A Reserve commissioned officer in the USAR who has been in an inactive status will not be considered for Federal recognition to the next higher grade until at least one year after the date of return to an active status. [Applicant] did not belong to the PAARNG during his time in the IRR.  There is no evidence in his Official Military Personnel File (OMPF) to prove he was on any promotion lists prior to joining the IRR or the PAARNG.

	c.  Guidance from Military Personnel (MILPER) Message 13-370 (Fiscal Year 2014 Captain, AMEDD Promotions Selection Boards) designates the promotion zone dates for 1LT to CPT as September 2009 through 31 August 2010.  The applicant's DOR is 10 March 2010.  According to NGR 600-100, paragraph 8-8 and Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 2-15, the minimum time in grade for promotion eligibility from 1LT to CPT is 2 years.  The applicant attained the minimum time in grade to be eligible for promotion on 10 March 2012.  He will be evaluated for his potential for promotion on the current Fiscal Year 2014 AMEDD Selection Board.  Therefore, the recommendation is disapproval of his request to be unit vacancy promoted and receive any back pay or retirement points associated with such a promotion.

	d.  The PAARNG and NGB Office of the Department of the Army boards concurs with this recommendation. 

8.  The applicant submitted a rebuttal on 4 July 2014.  He stated: 

	a.  His claim is that the USAR disbanded the 339th CSH in August 2011 and placed him erroneously into the IRR.  This affected his desire and ability to work, earn pay and points and potential promotions and incentives.  He attempted to correct this situation by working closely with CPT Br----, the PAARNG AMEDD Recruiting and his USAR Branch Manager, a CPT at the time, from 2011 until May 2012 without success.  His understanding was/is that HRC was in the process in 2011 and 2012 of becoming a centralized office.  Records were being transferred and difficult to locate.  He has no doubt that then-CPT Br---- and the USAR CPT at HRC did try to locate the proper records to resolve his situation.  In fact, at one point during late 2011 he was transferred from the IRR to the Standby Reserve, so he notified the Branch Manager who knew of his pending transfer into the PAARNG and he quickly corrected this.

	b.  It was the assertions of the Branch Manager as well as several parties who work in the Incentives Branch since then that the events affecting his Army Reserve/National Guard career were unfortunate and would not have occurred had the proper records been available when requested.  His responsibility and failure in this cascade of events was that he did not have a copy of his initial BSN STRAP incentive which would have shown that he was contracted to serve as a member of the Reserve forces (USAR or ARNG) during the time period in which he was placed into the IRR.

	c.  Had he not been placed in the IRR, he would have been attending training, earning pay and retirement points, preparing for promotion, and potentially collecting the STRAP incentive.  Thus, his initial request for restoration of "pay, retirement points, and potentially that a unit vacancy promotion be considered and backdated."  However, after reading the correspondence from the parties at NGB and PAARNG, it appears that there is no realistic way for this to occur.  He admits that he failed to have the proper documentation in hand when needed and, even with the efforts of the Branch Manager and Recruiter, they were not able to procure those records.  He recognizes that he is not the only person to be affected by the events of late 2011 and early 2012 in regard to career opportunities, and he recognizes the current difficult fiscal environment.  

9.  Army Regulation 135-155 states to be eligible for consideration for promotion to the next higher grade, an ARNG officer must have continuously performed service on either the Reserve Active Status List (RASL) or the Active Duty List (ADL) (or a combination of both lists) during the 1-year period ending on the convening date of the promotion board and must meet the time in grade requirements in table 2-1 or 2-3, as appropriate.  For promotion from 1LT to CPT, the minimum time in grade requirements are 2 years in the lower grade.  It also states promotion consideration or reconsideration by a special selection board (SSB) may only be based on erroneous non-consideration or material error which existed in the record at the time of consideration.  SSBs are not authorized for vacancy promotions. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant was appointed in the USAR on 27 August 2009.  He was promoted to 1LT on 10 March 2010.  By regulation, in order to be eligible for promotion to the next higher grade (CPT), he would have needed a minimum of 2 years time in grade in the lower grade (1LT) which would have been 10 March 2012.  He was not eligible for an earlier consideration. 

2.  But even if his contention is correct, when there is an error or an injustice with a promotion issue, the Board's remedy to such an issue is to recommend an SSB.  Unfortunately for the applicant, even if his unit vacancy (now called position vacancy) is corroborated, there are no SSB's authorized for a position vacancy. 
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)                                         AR20140004875





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140004875



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1