IN THE CASE OF:  

		BOARD DATE:  24 March 2015

		DOCKET NUMBER:  AR20140013084


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 an adjustment of his date of rank (DOR) upon promotion to major (MAJ), from 8 November to 31 August 2012, to reflect the maximum time in grade (TIG) of 7 years as a captain (CPT).

2.  The applicant states:

	a.  The authority to adjust an officer's DOR not to exceed the maximum TIG is found in Title 10, U.S. Code, section 14304 (10 USC 14304 (Eligibility for Consideration for Promotion: Maximum Years of Service in Grade)) and Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), Table 2-1 (TIG Requirements, Commissioned Officers, Other Than Commissioned Warrant Officers).

	b.  In his case, the TIG was exceeded due to the board results being delayed twice during Fiscal Year 2012 (FY12), which caused the results to be delayed significantly.

3.  The applicant provides:

* promotion orders to CPT and MAJ
* Military Personnel (MILPER) Message 12-208 (Administrative Delay of Release of the FY12 MAJ Army Promotion List (APL), Army National Guard of the United States (ARNGUS), Army Reserve Active Guard Reserve (AR-AGR), and Army Reserve Non-AGR (AR-NON AGR), Competitive Categories, Promotion Selection Boards), issued 5 July 2012
* 3 pages of email text from the Army Reserve G-1

CONSIDERATION OF EVIDENCE:

1.  On 1 June 2002, upon graduation from the U.S. Military Academy, West Point, New York, the applicant was appointed as a second lieutenant in the U.S. Army Reserve (USAR).  He executed a DA Form 71 (Oath of Office – Military Personnel) and entered active duty on 1 June 2002.

2.  On 1 September 2005, he was promoted to CPT.

3.  On 31 May 2007, he was honorably released from active duty in the rank of CPT and he was transferred to the USAR.

4.  The FY12 MAJ, APL, Promotion Selection Board convened on 30 January 2012 and re-convened, at the direction of the Assistant Secretary of the Army (Manpower and Reserve Affairs), on 29 May 2012.

5.  U.S. Army Human Resources Command (HRC) Orders B-11-207369, dated 14 November 2012, show he was promoted in the USAR from CPT to MAJ with an effective date and DOR of 19 October 2012.

6.  The applicant provides MILPER Message 12-208, issued on 5 July 2012, which announced the further delay of the results of the FY12 MAJ, APL, Promotion Selection Board.  According to this message, the promotion selection board results were expected to be released in the May/June 2012 timeframe; however, they were delayed because the Assistant Secretary of the Army (Manpower and Reserve Affairs) directed the board re-convene due to erroneous considerations on 29 May 2012. 

7.  In the processing of this case, on 11 September 2014, an advisory opinion was obtained from the Chief, Officer Promotion Management, HRC.  The advisory official opined that the applicant's request for adjustment of his DOR to his maximum TIG of 31 August 2012 was without merit.  He further stated:

	a.  The FY12 MAJ, APL, Promotion Selection Board convened on 30 January 2012 and the Assistant Secretary of the Army (Manpower and Reserve Affairs) directed the board re-convene due to erroneous considerations.

	b.  The re-convened board was approved on 19 October 2012, which is the earliest DOR the applicant can receive in accordance with 10 USC 14112.

	c.  In his request, the applicant cites the authority to adjust his DOR is          10 USC 14304 and Army Regulation 135-155, Table 2-2 [sic].  10 USC 14304 addresses eligibility for consideration for promotion – maximum years of service in grade, but it does not address DOR or DOR adjustments.  The applicant further states his DOR is 8 November 2012 when in fact his DOR is 19 October 2012 – the approval date of the board.

8.  On 15 October 2014, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  However, he did not respond.

9.  Title 10, USC, section 14304 provides that officers will be considered for promotion to the next higher grade by a promotion board convened under section 14101 of this title, far enough in advance of completing the maximum years of service in grade (TIG) so that, if the officer is recommended for promotion, the promotion may be effective on or before the date on which the officer will complete those years of service.  The maximum TIG for a CPT is 7 years. 

10.  Title 10, USC, section 14308 provides the legal authority for the promotion of officers on the Reserve Active Status List (RASL).

	a.  Paragraph "a" provides that when the report of a selection board is approved by the President (or his designee), the Secretary concerned shall place the names of all officers selected for promotion within a competitive category on a single list for that competitive category, to be known as a promotion list, in the order of seniority of those officers on the RASL.  A promotion list is considered to be established under this section as of the date of the approval of the report of the selection board under the preceding sentence.

	b.  Paragraph "b" provides that officers on a promotion list will be promoted to the next higher grade in accordance with regulations prescribed by the Secretary concerned once the selection board is approved by the President (or his designee).  

11.  Title 10, USC, section 741(d)(4)(A) affords the Secretary concerned the authority to adjust the DOR of an Active Duty List (ADL) officer appointed under section 624(a) of this title to a higher grade that is not a general officer or flag officer grade if the appointment of that officer to that grade is delayed from the date on which (as determined by the Secretary) it would otherwise have been made by reason of unusual circumstances (as determined by the Secretary) that cause an unintended delay in either the processing or approval of the report of the selection board recommending the appointment of that officer to that grade; or the processing or approval of the promotion list established on the basis of that report.  RASL officers are afforded the same DOR adjustment opportunity by Title 10, USC, Section 14308(c)(2).

12.  Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve Component officers.  Table 2-1 provides the TIG requirements for the promotion of commissioned officers.  It states that for promotion from CPT to MAJ, the minimum number of years in the lower grade is 4 years and the maximum number of years in the lower grade is 7 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DOR as a MAJ should be adjusted from     8 November 2012 to the date on which he attained the maximum TIG as a CPT, 31 August 2012, was carefully considered and determined to have partial merit.

2.  The evidence of record shows he was promoted to CPT with an effective date and DOR of 1 September 2005.  He was released from active duty on 31 May 2007; however, he continued to serve in an active status in the USAR until he was selected for promotion to MAJ by the FY12 MAJ, APL, Promotion Selection Board.  This board was originally convened 30 January 2012; however, it was not officially approved until 19 October 2012 based upon administrative delays and the Assistant Secretary's order that it be re-convened.

3.  He completed 7 years TIG as a CPT on 31 August 2012.  He was promoted to MAJ with an effective date and DOR of 19 October 2012, resulting in him having 7 years, 1 month, and 18 days TIG as a CPT.

4.  Notwithstanding the expert advisory opinion and in view of the foregoing and in the interest of equity, it would be appropriate to adjust his DOR to MAJ to 1 September 2012, the date after which he completed the maximum 7 years TIG in the rank of CPT.

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 
Department of the Army records of the individual concerned be corrected by adjusting his DOR upon promotion to MAJ to 1 September 2012, to reflect the maximum TIG of 7 years as a CPT.

2.  The Board further determined that the evidence presented is 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 adjusting his MAJ DOR any earlier than 1 September 2012.



      ____________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)                                         AR20110012314



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ABCMR Record of Proceedings (cont)                                         AR20140013084



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