BOARD DATE:	  7 October 2014

		DOCKET NUMBER:  AR20140010152 


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 date of rank (DOR) to major (MAJ) in the Maine Army National Guard (MEARNG) from 5 May 2012 to 2 February 2009. 

2.  The applicant states that on 8 February 2012 he was promoted to the rank of MAJ as an Army Medical Specialist Corps (SP) officer.  On that date, he had been an officer for over 15 years.  The Maine State order for promotion took effect on 15 May 2012.  He is requesting his current DOR be backdated to 2 February 2009.  He adds: 

   a.  He was originally branched as a Military Intelligence (MI) officer in the California ARNG (CAARNG).  He reached the rank of captain (CPT), initially on 10 August 2001.  When he accepted a school seat in the Inter-service Physician Assistant Program (IPAP), he was demoted to first lieutenant (1LT) incorrectly. That incorrect entry on his constructive credit form showed that he was demoted to 1LT as an SP officer with no time in grade as a 1LT.  The eventual correction which he was not completely aware of changed his adjusted DOR to 1LT from 
18 August 2004 to 7 February 2002.  So at that point (his entry into IPAP) he was demoted to 1LT with a corrected time in grade of 2 years, 6 months, and 11 days for a new time in grade.  This correction was not completed until 11 January 2006 by the National Guard Bureau (NGB) Army Medical Department (AMEDD) officials.  This means that in February 2005 he was fully eligible for promotion to CPT.  This did not occur as his promotion to CPT did not take place until 2 years later on 6 February 2007, presumably because of the delay of correction to his time in grade (January 2006).  
	b.  To establish the character of his commissioned service and promotion pace, the Board should note that as an MI officer, on his first promotion to CPT, he was promoted after approximately 2 and 1/2 years as a 1LT (1 April 1999 to 
10 August 2001).  The key area on the DA Form 5074-1-R (Record of Award of Entry Grade Credit (Health Services Officer)) is box 35, which reflects the DOR. 

	c.  The position that he now fills, since May 2007, is a MAJ/O-4 slot.  He asks for an adjustment of his DOR for two main reasons.  First, establishing reason for a back date of his MAJ/O-4 rank to 6 February 2007, he was promoted to the rank of MAJ through the State of Maine ARNG via a vacancy promotion, as his position is an O-4 slot.  While not promoted to MAJ until 15 May 2012, he was eligible for promotion on 6 February 2007.  Second, building on the above condition and to establish greater consideration for his rank to be back dated to 2 February 2009, since his DOR correction was not entirely understood by him, he believes he should be given some latitude in presenting an additional circumstance that goes beyond the 3-year mark of consideration, as this situation had consequences on his selection to MAJ and he was not completely aware of the complexities of constructive credit administrative requirements.  That circumstance he refers to is that he should have most reasonably been promoted to CPT on 2 February 2005. 

	d.  Therefore, after joining the 11th Weapons of Mass Destruction, Maine and occupying an O-4 slot, he could have been promoted via vacancy promotion to O-4 on 2 February 2009.  He will send multiple documents that cover both State promotion orders and federal recognition orders.  In addition, he will send the initial and corrected DA Form 5074-1-R completed on 30 August 2005 and 
11 January 2006, respectively.  

3.  The applicant provides: 

* DA Form 5074-1-R, dated 30 August 2005 and 11 January 2006
* California State Orders 32-011, dated 1 February 1999
* NGB Federal Recognition Special Orders (SO) Number 61 AR, dated 1 April 1999
* Promotion as a Reserve Commissioned Officer Memorandum (1LT), dated 1 April 1999
* California State Orders 201-60, dated 20 July 2001
* Promotion as a Reserve Commissioned Officer Memorandum (CPT), dated 8 November 2001
* Maine State Orders 176-002, dated 25 June 2007
* Promotion as a Reserve Commissioned Officer Memorandum (CPT), dated 12 September 2007
* Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty Memorandum, dated 26 April 2007
* Maine State Orders 040-004, dated 9 February 2012
* Promotion as a Reserve Commissioned Officer Memorandum (MAJ), dated 7 May 2012

CONSIDERATION OF EVIDENCE:

1.  After having had prior U.S. Air Force and CAARNG enlisted service he was appointed as an infantry Reserve commissioned officer of the CAARNG and executed an oath of office on 28 March 1997.  He attended the MI officer basic course from May to October 1998. 

2.  On 1 April 1999, the NGB published SO Number 61 AR extending him Federal recognition for promotion to 1LT with an effective date and DOR of 
1 April 1999.  

3.  On 10 August 2001, NGB published SO Number 218 AR extending him Federal recognition for promotion to CPT with an effective date and DOR of 10 August 2001.  

4.  On 3 March 2003, he entered active duty and served in Kosovo from 7 July 2003 to 18 February 2004.  He was honorably released from active duty in the rank of CPT on 29 March 2003. 

5.  On 27 July 2004, a Federal Recognition Board (FRB) convened to determine if the applicant was qualified for Federal recognition as a 1LT, SP. The FRB found his physical qualification, moral character, and general qualification satisfactory. 

6.  As such, CAARNG published Orders 253-1100 honorably separating him from the ARNG effective 17 August 2004 in the rank of CPT.  He was issued an NGB Form 22 (Report of Separation and Record of Service) that captured his ARNG service. 

7.  The applicant entered active duty on 22 August 2004.  He attended and successfully completed the Inter-service Physician Assistant training program at Fort Sam Houston, TX from 30 August 2004 to 19 August 2005. 

8.  On 20 August 2004, the CAARNG published State Orders 233-1101 appointing him in the ARNG in the rank of CPT as an SP officer, effective 18 August 2004.  However, on 23 June 2005, the CAARNG published State Orders 174-1000 amending his appointment rank to 1LT. 
9.  On 30 August 2005, the CAARNG AMEDD Officer Accessions Branch submitted a DA Form 5074-1-R awarding the applicant 4 years, 6 months, and 11 days of total constructive service credit.  As 2 years was needed for appointment as a 1LT, the remaining 2 years, 6 months, and 11 days were applied to his DOR to 1LT, establishing it as 18 August 2004. 

10.  On 21 September 2005, the NGB published SO Number 270 AR extending him Federal recognition for initial appointment as a 1LT in the SP in the CAARNG, with a DOR and effective date of 18 August 2004. 

11.  On 11 January 2006, a second DA Form 5074-1-R was submitted by the CAARNG AMEDD Officer Accessions Branch submitted a DA Form 5074-1-R awarding the applicant 4 years, 6 months, and 11 days of total constructive service credit.  As 2 years was needed for appointment as a 1LT, the remaining 2 years, 6 months, and 11 days were applied to his DOR to 1LT, establishing it as 7 February 2002. 

12.  He was honorably released from active duty to the control of his State ARNG on 22 September 2006.   

13.  On 26 March 2007, he was approved for an inter-state transfer and he was given 90 days to locate and join an ARNG unit in another State.  On 
26 March 2007, he executed an oath of office as a 1LT in the MEARNG, in the rank of 1LT. 

14.  On 26 April 2007, he was notified that he was selected for promotion to CPT by a board that adjourned on 19 January 2007.  The effective date of his promotion would be either 6 February 2007, or the date Federal recognition is extended in the higher grade, or the date Federal recognition is terminated in the current grade. 

15.  On 25 June 2007, the MEARNG published State Orders 176-002 promoting him to CPT, effective 25 June 2007.   

16.  On 12 September 2007, the NGB published SO Number 220 AR extending him Federal recognition for promotion to CPT with an effective date and DOR of 12 September 2007.  

17.  On 5 January 2010, the MEARNG issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter). 

18.  On 9 February 2012, the MEARNG published State Orders 040-004 promoting him to MAJ, effective 8 February 2012. 
19.  On 17 May 2012, the NGB published SO Number 187 AR extending him Federal recognition for promotion to MAJ with an effective date and DOR of 15 May 2012.  

20.  An advisory opinion was received on 5 September 2014 from the NGB in the processing of this case.  An NGB advisory official recommended partial relief as follows: 

	a.  Discussion:  [Applicant] believes he should have received a promotion date effective 2 February 2009 because of the 4-year delay in correcting and processing his DA Form 5074-1-R for creditable service in a required grade.  The timeline of events in this case are as follows:

		(1)  On 01 April 1999, he was promoted to 1LT on Federal Recognition (Fed Rec) SO Number 61 AR in the Infantry Branch, dated 1 April 1999.

		(2)  On 10 August 2001, he was promoted to CPT in the MI Branch.

		(3)  On 7 February 2002, he received creditable service of 2 years, 
6 months, and 11 days.

		(4)  On 18 April 2004, he went from an MI to an AMEDD Specialty Branch (SP) and was appointed as a 1LT.  

		(5)  On 30 August 2005, he received a DA Form 5074-1-R signed with an effective date of 30 August 2005 giving him creditable service for 2 years,
6 months, and 11 days and a DOR of 18 August 2004.  This is the same period of time served by the officer in 2002; however, this was the first time it was recorded in writing. 

		(6)  He received a corrected DA Form 5074-1-R that had all the necessary signatures as of 11 January 2006 giving him creditable service for a DOR of 
7 February 2002.  This form is date stamped 12 January 2006.

		(7)  On 15 May 2012, he received a unit vacancy promotion to MAJ.  

	b.  Due to the delay in the years of inaccurately processing his DA Form 5074-1-R for creditable service and DOR, it is recommended that consideration be given for partial relief to adjust his DOR to the date of eligibility.  The initial eligible dates that were not corrected in a timely manner for his promotion track were:

* 18 August 2004 - 1LT (2 years minimum - 5 years maximum)
* 18 August 2006 - CPT (4 years minimum - 7 years maximum)
* 18 August 2013 - MAJ

   c.  The recommended DOR to MAJ with all back pay and allowance is 7 February 2011.  This date is derived from the adjustment to 1LT on the DA Form 5074-1-R, signed on 11 January 2006 and date stamped 12 January 2006.  

* 7 February 2002 -1LT (2 years minimum - 5 years maximum)
* 7 February 2004 - CPT (4 years minimum - 7 years maximum)
* 7 February 2011 - MAJ

   d.  This case recommendation was coordinated and reviewed with NGB Federal Recognition Section, on 14 July 2014 and NGB Officer's Policy Section, on 12 August 2014.  The MEARNG concurs with this recommendation.

21.  The applicant was provided a copy of this advisory opinion.  He concurred via email on 12 September 2014.  

22.  Army Regulation 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 USAR.  This regulation specifies that promotion reconsideration by a Special Selection Board (SSB) may only be based on erroneous non-consideration or material error that existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's non-selection by a promotion board and, had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  For promotion from 1LT to CPT, the minimum time-in-grade requirements is 
2 years in the lower grade and the maximum time in grade requirements is 
5 years and for promotion from CPT to MAJ, the minimum time-in-grade requirements is 4 years in the lower grade and the maximum time in grade requirements is 7 years.

DISCUSSION AND CONCLUSIONS:

1.  When the applicant was appointed as a 1LT in the SP in the CAARNG on 
18 August 2004, he was awarded 4 years, 6 months, and 11 days of constructive service credit.  Two years were needed for appointment as a 1LT and the additional 2 years, 6 months, and 11 days should have been applied to adjust his DOR.  This did not happen until 2006.  His DOR to 1LT was adjusted to 7 February 2002.

2.  Without question, the failure to process the applicant's DOR to 1LT upon his appointment in 2004 was in error and occurred through no fault of his own.  Title 10, USC, 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.

3.  Appointments and promotion of commissioned officers in the Reserve Components must be on a scroll approved and signed by the Secretary of Defense before a commissioned officer may take the oath of office.  Scroll confirmation is rank specific for commissioned officers.  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.

4.  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.

5.  Consequently, based on the authorities cited above, any correction to the applicant's effective DOR would effectively amend the Secretary of Defense's action and goes beyond the authority of this Board.  Therefore, notwithstanding the NGB's advisory opinion, amendment of the applicant's effective date of promotion to CPT and MAJ with entitlement to back pay and allowances cannot be accomplished by this Board. 

6.  With respect to the promotion to CPT: 

	a.  He was promoted to CPT in the SP in the ARNG and extended Federal recognition with an effective date and DOR of 6 February 2007.  Promotion consideration to CPT requires a minimum of 2 years and a maximum of 5 years in the lower grade.  Had his DOR been correct, he would have been eligible for promotion consideration as early as 2004.  Instead, he was considered and selected for promotion to CPT by a board that convened on 19 January 2007.  His current promotion effective date is 12 September 2007.

	b.  It is clear that there was an error in this regard.  However, the appropriate remedy is not to promote him on 7 February 2004 as the NGB indicates in the advisory opinion.  Rather, an appropriate remedy is to submit the applicant's records to a duly-constituted SSB for promotion consideration to CPT under the 2004, 2005, and 2006 criteria, and if selected, to promote him based on the assigned sequence number.  

7.  With respect to his promotion to MAJ: 

	a.  He was promoted to MAJ in the SP in the ARNG and extended Federal recognition with an effective date and DOR of 15 May 2012.  Promotion consideration to MAJ requires a minimum of 5 years and a maximum of 7 years in the lower grade.  Although this was a vacancy promotion, nonetheless had his 1LT DOR been correct he could have been eligible for promotion consideration to CPT earlier and, if he had been selected for promotion to CPT earlier, he could have been eligible for promotion consideration to MAJ earlier.  Instead, he was promoted to MAJ by a unit vacancy on 15 May 2012 and he was extended Federal recognition to MAJ effective that date. 

	b.  Again, the appropriate remedy is not to promote him on 7 February 2011 as the NGB indicates in the advisory opinion.  Rather, an appropriate remedy is to submit the applicant's records to a duly-constituted SSB for promotion consideration to MAJ under the appropriate year criteria contingent upon selection for promotion to CPT earlier, as recommended in paragraph 6 above. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

_X_______  __X______  _X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Army National Guard and Department of the Army records of the individual concerned be corrected by: 

	a.  submitting the applicant’s records to a duly-constituted SSB for consideration for promotion to CPT under the appropriate CPT Army promotion List, Promotion Selection Board year criteria; 

	b.  that if the applicant is selected for promotion his records be further corrected by promoting him to CPT based on his assigned promotion sequence number with the appropriate DOR, and with all due back pay and allowances, or by assigning him the appropriate promotion sequence number for future promotion purposes; and if not selected, the applicant be so notified; 

	c.  that if the applicant is selected for promotion to CPT by an SSB, his records be further corrected by submitting records to a duly-constituted SSB for consideration for promotion to MAJ under the appropriate MAJ Army promotion List, Promotion Selection Board year criteria; and 

	d.  if applicable, promoting him to MAJ based on his assigned promotion sequence number with the appropriate DOR, and with all due back pay and allowances, or by assigning him the appropriate promotion sequence number for future promotion purposes; and if not selected, the applicant be so notified.

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to amending his DOR to MAJ to 2 February 2009.  



      _______ _  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)                                         AR20140010152



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ABCMR Record of Proceedings (cont)                                         AR20140010152



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