IN THE CASE OF:  	  

		BOARD DATE:  19 March 2015	  

		DOCKET NUMBER:  AR20140006035 


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, in effect, his effective date of promotion to the rank/grade of major (MAJ)/O-4 be adjusted from 13 December 2011 to 29 June 2010, with calculated back pay and allowances disbursed.

2.  The applicant states he was assigned to a higher grade (MAJ/O-4) position on 14 September 2009 and he was Department of the Army (DA) selected for promotion to the rank/grade of MAJ/O-4 on 29 June 2010.  Amended Federal recognition (FEDREC) orders adjusted his promotion eligibility date from 22 March 2011 to 29 June 2010.  However, the established effective date of his promotion was not adjusted to 29 June 2010, which resulted in no pay and entitlements for roughly 76 weeks while the qualified duties were performed by the applicant within the higher graded position.

3.  The applicant provides:

* a self-authored statement
* timeline
* 2 memoranda
* Orders 309-1006
* Special Orders Number 72 AR
* DA Form 1059 (Service School Academic Evaluation Report)
* Orders 273-1009
* Modified Table of Organizational Equipment (MTOE)
* Fiscal Year (FY) 2010 MAJ Reserve Component/Army Promotion List (RC/APL), Selection Board Results
* Orders 073-066
* Orders 145-0033
* Orders MC-145-0033 (A1)
* 3 DA Forms 67-9 (Officer Evaluation Report)
* Orders 353-1024
* Special Orders Number 344 AR
* Special Orders Number 351 AR
* Orders 093-1009
* Page 28, Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers)

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.  Having served in various positions and completed several military training courses, Orders 063-1072, dated 3 March 2004, show the applicant was promoted to the rank/grade of captain (CPT)/O-3 effective 2 March 2004.  Special Orders Number 72 AR, dated 23 March 2004, extended FEDREC of his promotion to CPT effective 23 March 2004.

3.  Orders 273-1009, issued by the Texas Military Forces Army National Guard, dated 30 September 2009, reassigned the applicant from an O-3, Assistant Operations Officer position to an O-4, S3 position effective 14 September 2009.

4.  Evidence shows the applicant was selected for promotion to the rank/grade of MAJ/O-4 by the FY10 MAJ, RC/APL, Selection Board with a release date of 29 June 2010.

5.  An advisory opinion from the National Guard Bureau recommends granting the applicant's request to adjust the effective date of his promotion from CPT to MAJ from 31 December 2011 to 29 June 2010.  The Chief, Personnel Policy Division, opines, in effect:
   a.  The applicant states he was assigned to an O-4 position on 14 September 2009.  This is supported by Texas Army National Guard (TXARNG) Order Number 273-1009, dated 30 September 2009.  A copy of the FY10 MAJ, RC/APL, Selection Board Results show the applicant was DA selected for promotion to MAJ with a release date of 29 June 2010.

   b.  Army Regulation 135-155, dated 13 July 2004, paragraph 4-21b (2), states, "Unit officers selected by a mandatory board will have a promotion date effective no earlier than the date the board is approved or the date of Senate confirmation (if required), provided they are assigned to a position in the higher grade."  The selection of the applicant for promotion is confirmation the applicant met all requirements for promotion to MAJ.  Therefore, based on this guidance, due to serving in an O-4 position and being selected for promotion, the applicant could have been promoted as early as 29 June 2010.  A response to a request to determine the reason for the delay in promotion (over a year) has not been provided by the TXARNG and the applicant's Official Military Personnel File does not contain a State promotion order showing an effective date of promotion of            29 June 2010.

   c.  FEDREC order 344 AR, dated 21 December 2011, originally promoted the applicant with an effective date of promotion of 13 December 2011 and a promotion eligibility date of 22 March 2011.  FEDREC order 351 AR, dated          29 December 2011, amended the applicant's promotion eligibility date from           22 March 2011 to 29 June 2010.  FEDREC order 344 AR should be further amended to change the effective date of his promotion to 29 June 2010.  In addition, it is noted the TXARNG concurs with this recommendation.

6.  On 7 November 2014, the advisory opinion was provided to the applicant.  He did not respond.

7.  Title 10, USC, section 14308(f) (Effective date of promotion after FEDREC), states the effective date of a promotion of a Reserve commissioned officer of the Army or the Air Force who is extended FEDREC in the next higher grade in the ARNG or the Air National Guard under section 307 or 310 of Title 32 shall be the date on which such FEDREC in that grade is so extended.  Pursuant to Title 10, USC, section 741(d) (2) provides that unless otherwise provided by law, the date of rank of an officer who holds a grade as a result of a promotion is the date of his appointment to that grade.

8.  Title 10, USC, section 12203, provides that appointments of Reserve officers in the grades of lieutenant colonel and below shall be made by the President.  This authority has been delegated to the Secretary of Defense via Section 1, Executive Order 13384, dated 27 July 2005.  
DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to have his effective date of promotion to the rank/grade of MAJ/O-4 adjusted from 13 December 2011 to 29 June 2010, with back pay and allowances has been carefully examined.

2.  Evidence shows the applicant, while serving in the rank/grade of CPT/O-3, was assigned to an O-4 position and he was subsequently selected by the FY10 MAJ, RC/APL, Selection Board for promotion to the rank/grade of MAJ/O-4.  The board was released on 29 June 2010.

3.  FEDREC order 344 AR, dated 21 December 2011, originally promoted the applicant with a promotion effective date of 13 December 2011 and a promotion eligibility date of 22 March 2011.  FEDREC order 351 AR, dated 29 December 2011 amended the applicant's promotion eligibility date from 22 March 2011 to 29 June 2010.  

4.  Title 10, U.S. Code, section 1552, the statutory authority for the ABCMR, gives the Board broad authority to correct Army records to remove errors or to remedy an injustice; however, the authority granted by this statute is not unlimited.  The ABCMR may only correct Army records.  The Board has no authority to correct records created by the other Services or the Department of Defense.

5.  Any correction by the ABCMR must comport with other laws.  The Board may not ignore a requirement contained in, or outcome dictated by, another statute.  Typically, the ABCMR achieves this by changing an operative fact in the record, thereby making a correction in compliance with that statute.  Where officer personnel issues are involved that require approval by the Secretary of Defense, the Board's hands are often tied.  Consequently, any correction to his effective date of promotion would effectively amend the Secretary of Defense's action and goes beyond the authority of this Board.

6.  Notwithstanding the advisory opinion, the applicant's effective date of promotion can only be changed by amending the date FEDREC was granted by the Secretary of Defense.  The ABCMR has no jurisdiction over Department of Defense records and therefore cannot make this type of correction.

7.  In view of the foregoing, there is no basis for 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)                                         AR20140006035



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140006035



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1