IN THE CASE OF

		BOARD DATE:	    19 August 2014

		DOCKET NUMBER:  AR20140010295 


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 the following corrections:

* adjustment of his date of rank (DOR) to captain (CPT) to 1 September 2002
* adjustment to his DOR for major (MAJ) to 1 May 2007
* adjustment to his DOR for lieutenant colonel (LTC) to 1 September 2011
* back pay based on the adjusted DORs
* personal appearance before the Board

2.  The applicant states he was selected for promotion to CPT by the Headquarters, Department of the Army (DA) promotion board prior to leaving the active Army in January 2001.  As a DA select officer, once assigned to a valid CPT/O-3 position, he should have been promoted relatively quickly.  The Illinois Army National Guard (ILARNG) G-1 improperly processed the promotion as a unit vacancy fill, which takes much longer.  The G-1 initially did not process any of his paperwork.  The long-term effect essentially added 13-18 months to each promotion from that point on throughout his career.  Had the G-1 properly processed the paperwork when it was received, he would have been promoted an entire year earlier at each point.  He was unaware of the correction process beyond raising the issue through the chain of command until assignment to the National Capital Region in late 2012.  When he discovered the error years ago, he did not know there was any recourse once the ILARNG denied his request for a correction of his DOR.


3.  The applicant provides:

* Officer Record Brief
* DD Form 4/1 (Enlistment/Reenlistment Document – Armed Forces of the United States)
* Appointment memorandum and Oaths of Office
* Special Orders (SO) Number 274 AR
* Orders Number 226-370
* SO Number 228 AR
* Orders Number 032-054
* SO Number 113 AR
* 2012 Oaths of Office
* Orders Number 184-999
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* SO Number 359 AR
* Orders Number 299-021
* Orders Number 51-8

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed in the U.S. Army Reserve (USAR), as a second lieutenant, and entered extended active duty on 22 January 1998.  He was promoted to first lieutenant (1LT) on 22 July 1999.

2.  His record is void of any evidence he was considered and selected for promotion to CPT by the Fiscal Year (FY) 2001 promotion board. 

3.  He was honorably released from active duty on 21 January 2001 and was transferred to the ILARNG. 

4.  He was appointed in the ILARNG, as a 1LT, and executed an oath of office on 1 June 2002.  His record contains and he provided copies of the following:

* State Orders Number 226-370, dated 14 August 2003, promoting him to CPT with a DOR of 8 September 2003; the orders state he would not be paid as a CPT until Federal recognition was confirmed
* SO Number 228 AR, dated 8 September 2003, extending him Federal recognition for promotion to CPT effective 8 September 2003

5.  He was ordered to active duty in support of Operation Iraqi Freedom and entered active duty on 6 December 2004.  He served in Kuwait/Iraq from 9 May through 5 November 2005.  He was continued on active duty under the Reserve Component Medical Holdover Medical Retention Processing Program.
6.  His record also contains and he also provided copies of the following:

* State Orders Number 032-054, dated 1 February 2008, promoting him to MAJ with a DOR of 10 January 2008
* SO Number 113 AR, dated 5 May 2008, extending him Federal recognition for promotion to MAJ effective 30 April 2008

7.  He transferred to the Pennsylvania Army National Guard (PAARNG) on 29 March 2012.  His records contain and he provides: 

* Oaths of Office for appointment in the PAARNG, as a MAJ, on 29 March 2012
* State Orders Number 184-999, dated 2 July 2012, promoting him to LTC in the ARNG with a DOR of 28 June 2012

8.  He was honorably released from active duty in the rank of MAJ on 14 August 2012 and was transferred to the State Joint Forces Headquarters.

9.  His record further contains and he further provided copies of the following:

* SO Number 359 AR, dated 11 October 2012, extending him Federal recognition and promoting him to LTC effective 1 October 2012
* State Orders Number 299-021, dated 25 October 2012, ordering him to the full-time National Guard duty in an Active Guard Reserve status from 25 October 2012 through 14 August 2014; the orders list his rank as LTC
* State Orders Number 51-8, dated 20 February 2014, reassigning him in the ARNG

10.  An advisory opinion was received from the National Guard Bureau (NGB) on 9 June 2014 in the processing of this case.  An NGB official reiterated the applicant's requests and contentions and recommended disapproval of his requests.  He stated: 

   a.  Following timelines of events were:

* on 21 January 2001, the applicant was honorably separated from the Army on a DD Form 214
* From 22 January 2001 through 31 May 2002, the applicant's ARNG Current Annual Statement indicated he was in the Individual Ready Reserve (IRR)
* on 1 June 2002, he was appointed as a 1LT in the ILARNG on NGB Form 337 (Oaths of Office) and DA Order Number C-09-22332, dated 11 September 2002 and SO Number 274 AR, dated 2 October 2002
* on 1 June 2002, he was assigned into a 1LT position as a platoon leader on ILARNG Order Number 217-017, dated 5 August 2002
* on 1 September 2002, he was assigned to a CPT's slot as a battalion S-1 on ILARNG Order Number 262-063, dated 18 September 2002
* on 15 June 2002, he was assigned into a CPT's slot as a commander on ILARNG Order Number 174-134, dated 23 June 2003
* on 8 September 2003, he was extended Federal recognition for promotion to CPT on SO Number 228-1 published from a unit vacancy scroll list P23-03-2905
* on 14 April 2014, NGB DA Boards searched the CPT's Application Boards Record files from FY 2001 to 2004 and found no record of the applicant being DA selected
* on 14 April 2014, Human Capital Management for Officers Promotions on Active Duty at Fort Knox, KY, searched their files from FY 2001 to 2004 and found no record of the applicant being DA selected; however, records did show that he was deleted from being considered by the board in 2001, the same time as his separation

   b.  The applicant has not provided any proof of documentation that validates he was DA selected in January 2001.

   c.  In consultation with NGB Federal Recognition (FED REC) Section, the applicant’s FED REC processing history was reviewed.  The applicant's promotion to CPT was a unit vacancy promotion (UVP).  The Reserve Officer Promotion Act states, "The effective date of promotion and DOR of an officer who is promoted under the position vacancy system is the date the Chief, NGB, extends Federal recognition.  It is not the date of appointment into the position, nor is the date of Federal recognition board action if either of those dates is an earlier date.  Therefore, there is no entitlement to pay and allowances prior to the date the Chief, NGB, extends Federal recognition.

   d.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officer, Other than General Officers), paragraph 2-5(a), states, "To be eligible for consideration for promotion to the next higher grade, an Army National Guard Soldiers or USAR officer must have continuously performed service on either the Reserve Active Status list or the Active Duty list or a combination of both lists, during the one year period ending on the convening date of the promotion board and must meet the time in grade requirements in tables 2-1 or 2-3, as appropriate."  

   e.  This affected the applicant because he was in the IRR and needed one year of service after coming into the ARNG to be eligible for promotion.

   f.  FED REC History processing records show that the applicant's unit recommended him for a UVP on 25 August 2003.  National Guard Regulation 600-100, paragraph 8-1, states, "The promotion of officers in the ARNG is a function of the State."  

   g.  Initially, the applicant was slotted in a 1LT position and was not a primary holder of a CPT position.  Once he became eligible, his promotion packet was successfully boarded at the State level.  NGB, FED REC section, received and processed the packet and the applicant was federally recognized as a CPT effective 8 September 2003.  Taken into account the approximate 90 days needed for a UVP packet to go through the necessary approval channels, the applicant's current promotion effective date falls within or near this time line.

   h.  Army Regulation 135-155, paragraph 4-21, states for any promotion "…In no case will the DOR or effective date of promotion be earlier than the date the board is approved, or, if required, the date of Senate Confirmation."  There is no exception or ability to give someone an earlier DOR just because the board results are typically provided earlier than they were.  The delay in the board cause a delay in the approval date of the board and by regulation, promotions cannot take effect prior to the approval date of the board.

   i.  The case recommendation was coordinated and reviewed by the NGB FED REC Section, on 26 February and 28 April 2014.  The ILARNG concurred with the recommendation

11.  On 17 June 2014, the advisory opinion was forwarded to the applicant for acknowledgment and/or rebuttal.  He did not respond.

12.  Army Regulation 15-185 (ABCMR) states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence in the available records and the applicant provides none to show he was selected for promotion to CPT prior to leaving active duty in January 2001.  NGB officials have stated that files were searched pertaining to the FY 2001 to 2004 DA promotion boards and no record was found of the applicant being selected.  A review of the FY 2001 promotion board shows he was deleted from being considered by the 2001 board.  It appears his name was deleted from that board as a result of his separation from active duty.  The applicant did not provide any evidence he was a DA select officer for promotion to CPT prior to being appointed in the ILARNG or transferred to the IRR.

2.  The evidence shows he was appointed in the ILARNG on 1 June 2002.  He was assigned to a CPT's slot on 15 June 2003 and extended FED REC and promoted to CPT on 8 September 2003 on a UVP.  Without evidence to the contrary, it appears he was promoted to CPT in the ILARNG in accordance with regulatory guidance under the UVP.  Therefore, there is no error or injustice.

3.  There is also no evidence and he did not provide sufficient evidence to show his subsequent promotions to MAJ and LTC were erroneously or unjustly delayed as a result of his DOR for CPT.  Again, without evidence to the contrary, it appears he was promoted to MAJ and LTC in accordance with appropriate regulatory guidance in effect and he had not shown otherwise.

4.  With respect to the personal hearing, his request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

5.  In view of the foregoing, 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:

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)                                         AR20140010295





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ABCMR Record of Proceedings (cont)                                         AR20140010295



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