IN THE CASE OF:  	  

		BOARD DATE:  14 January 2015	  

		DOCKET NUMBER:  AR20140007180 


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 records to show he was promoted to major (MAJ)/O-4.

2.  He states:

   a.  he was Department of the Army (DA) selected for promotion to MAJ/O-4 in December 2007, but he was not promoted due to his entry into the Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB) process.
   
   b.  he was medically separated on 21 May 2008 as a captain (CPT)/O-3.
   
   c.  he believes he is eligible for promotion to MAJ/O-4 based on Title 10, U.S. Code, section 1372, under paragraph 3.  This information can be verified by a colonel, G1, Idaho Army National Guard (IDARNG).

3.  He provides:

* Memorandum, Subject:  Promotion from CPT to MAJ (applicant's name and social security number (SSN)), dated 18 April 2014
* Orders 464-006, dated 29 December 2006, transferring him to a position of Team Chief
* Amendment Orders 401-007, dated 5 January 2007
* IDARNG Element, Joint Force Headquarters - Table of Distribution and Allowances (TDA)
* Memorandum, Subject:  Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty, dated 3 July 2007
* DA Form 199 (PEB Proceedings), dated 28 February 2008
* Memorandum, Subject:  Transfer to the Retired Reserve (20-Year Letter) RE:  CPT (applicant's name and SSN)
* Orders 421-007, dated 23 May 2008, separating him from the ARNG
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Letter, dated 11 April 2014, from the Department of the Veteran Affairs (VA)
* VA Rating Decision, dated 28 January 2013

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.  After having prior enlisted service in the Regular Army and IDARNG, the applicant was appointed as second lieutenant (2LT)/O-1 in the IDARNG on 25 July 1992.  He was granted Federal recognition.

3.  He was promoted to CPT/O-3 on 28 December 2000.  

4.  He provided the following documents which show:  

   a.  Orders 463-006, dated 29 December 2006, he was transferred into a MAJ/O-4 position of Team Chief (specialty 91A0) and Modified Table of Organization and Equipment (MTOE) 250L-01, IDARNG, Joint Force Headquarters effective 15 January 2007.

   b.  Promotion memorandum, dated 3 July 2007, he was selected for promotion to the rank of MAJ/O-4 with a promotion eligibility date of 27 December 2007.  
   c.  Formal PEB Proceedings, dated 28 February 2008, the applicant was found unfit and awarded a 10 percent disability evaluation for chronic low back pain.  The PEB recommended that the applicant be separated with severance pay.  These proceedings show his rank as "CPT."
   
   d.  A memorandum, dated 11 April 2008, from the Chief of Operations Division, U.S. Army Physical Disability Agency showing the PEB determined that the applicant was physically unfit and would be transferred to the Retired Reserve under the provisions of Army Regulation 635-40, paragraph 8-9a(3).
   
   e.  Orders 421-007, dated 23 May 2008, he was separated from the ARNG, released from the position of Team Chief, and was transferred to the U.S. Army Reserve Control Group (Retired Reserve) effective 21 May 2008.  These orders show his rank as "CPT."
   
   f.  NGB Form 22, he was discharged from the ARNG on 21 May 2008 in the rank and pay grade of CPT/O-3.  On the following day, he was transferred to the Retired Reserve.
   
   g.  VA Letter, dated 11 April 2014, he was informed that he was honorably discharged from the Armed Forces of the United States and was rated at 70 percent service-connected disability.

   h.  A memorandum, dated 18 April 2014, from the G1, IDARNG, Joint Forces Headquarters stated the applicant attempted to resolve this issue back in 2012, but he didn't have all of the information necessary to prove the case.  Based on State orders, his TDA position assignment, and his DA Selection Board memorandum promoting him to MAJ/O-4, it is believed that he is eligible for promotion to MAJ/O-4 for retirement purposes.

	i.  IDARNG Element, Joint Force Headquarters - TDA prepared on 18 April 2014, the TDA position for Team Chief is listed for the rank of MAJ/O-4 and specialty of 91A.

5.  On 11 July 2014, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB.  The advisory official recommended approval and stated:

	a.  the applicant believes he is eligible for promotion to the rank of MAJ under Title 10, USC, section 1372, paragraph 3.  DA selected him as eligible for MAJ in December 2007; however, he was not promoted due to his entry into the MEB/PEB process.  He was medically separated on 21 May 2008 as a CPT.

	b.  the timeline of events in this case was as follows:
           (1)  On 15 January 2007, the applicant was transferred to an O-4/MAJ position on IDARNG State Order Number 464-006, dated 29 December 2006.

		(2)  On 12 March 2007, the DA Army Promotion List (APL) for MAJ convened and recessed on 28 March 2007.

		(3)  On 13 June 2007, the DA APL MAJ Board was signed and approved on Presidential List 93-579.  The applicant's name appears on this list.  

		(4)  On 3 July 2007, the applicant was issued eligibility notification advising him that he was eligible for promotion to MAJ with the effective date of the promotion being either one of three options: 

* Date shown after A - 27 December 2007 (the date of maximum time in grade)
* Date Federal recognition is extended in the higher grade (the date the list signed and approved)
* Date following the date Federal recognition is terminated in current Reserve grade (the date that the Soldier's rank is at the time of separation)

		(5)  On 26 November 2007, the applicant went before an MEB.

		(6)  On 28 February 2008, the applicant went before a PEB.

		(7)  On 11 April 2008, the applicant received a PEB determination advising that he was physically unfit and was recommended for transfer to the Retired Reserve.

		(8)  On 21 May 2008, the applicant was transferred to the Retired Reserve on DA Special Order Number 131 AR, dated 22 May 2008.

	c.  making the DA Select list and becoming eligible for promotion to any rank within the ARNG is not automatic.  It is required that Soldiers in a position of higher grade, a recommendation be provided, and a promotion packet requesting the promotion be submitted.  The applicant met all of these requirements; therefore, the earliest date of a promotion is the signed approved date of the Presidential List.

	d.  it is recommended that consideration be given for the applicant to be promoted to MAJ with a date of rank of 13 June 2007, the date the list was signed; receive the rank of MAJ; and receive back pay and allowances.

	e.  this case recommendation was coordinated and reviewed with NGB Federal Recognition Section, on 6 June 2014 and revisited on 17 June 2014.

	f.  the IDARNG concurs with this recommendation.  

6.  A copy of the advisory opinion was forwarded to the applicant to allow him to provide comments.  On 24 July 2014, he concurred with the advisory opinion.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's statements regarding his promotion to MAJ/O-4 are acknowledged and determined to have merit.  

2.  The evidence of record shows the applicant was promoted to CPT/O-3 on 28 December 2000.

3.  The applicant was transferred into a MAJ position on 15 January 2007.

4.  On 13 June 2007, the applicant was selected for promotion to MAJ/O-4. The NGB advisory opinion states the applicant was selected for promotion to MAJ in December 2007; however, he was not promoted due to his entry into the MEB/PEB process.  

5.  The applicant was medically discharged on 21 May 2008 and transferred to the Retired Reserve in the rank of CPT/O-3.  

6.  In conjunction with the NGB recommendation and the evidence of record, it would equitable to correct the applicant's records to show he was promoted to MAJ/O-4 with a date of rank and effective date of 13 June 2007 (the date the promotion list was signed) and to show he was separated from the ARNG and transferred to the Retired Reserve in the rank of MAJ/O-4 with a date of rank and effective date of 13 June 2007.

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

	a.  amending his records to show he was promoted to MAJ/O-4 effective 13 June 2007 and to show he was extended Federal recognition effective 13 June 2007, to include his NGB Form 22 and Orders 421-007, dated 28 May 2008, in the grade of MAJ/O-4; and
 
   b.  paying the applicant any due pay and allowances as a result of these corrections.



      ___________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)                                         AR20140007180





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ABCMR Record of Proceedings (cont)                                         AR20140007180



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