BOARD DATE:	  26 May 2015

		DOCKET NUMBER:  AR20140016040


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, that her date of rank (DOR) for promotion to captain (CPT) be back-dated to 16 October 2012, the date she was originally selected. 

2.  The applicant states, in effect, the following:

     a.  She would like her DOR to CPT reviewed.  Her promotion was effective    2 September 2014, after being a first lieutenant (1LT) for four years, and she believes her DOR should be back-dated approximately 2 years.  She transitioned from the Reserve Component (RC) to active duty in May 2012.  She held military occupational specialty 66H (Medical Surgical Nurse) in the U.S. Army Reserve (USAR) and she entered active duty as a 66H8A (Intensive Care Unit (ICU) Nurse) for training in the U.S. Army Graduate Program in Anesthesia Nursing (USAGPAN).

     b.  Based on her 1LT DOR, 21 August 2010, she was eligible to go before the Fiscal Year 2012 (FY12) CPT RC promotion selection board (PSB) in January 2012.  However, the board was reconvened in April 2012, and the results did not come out until October 2012.  Therefore, pending the board results, she was scrolled as both a 1LT and a CPT for transitioning to active duty.  When the results came out she was selected; however, she was told by her chain of command that the list did not apply to active duty and she needed to wait for the active duty CPT board.  

     c.  The FY13 active duty CPT board met in April 2013; however, she was ineligible since her basic active service date (BASD) was not early enough for the board, despite her DOR putting her in the above the zone category for board consideration.  She feels she would have been eligible, had she not previously been an RC Soldier.  The FY13 board did not accept waivers for this particular situation.  She was selected above the zone of consideration by the FY14 board.  She feels her DOR should be back-dated to reflect the approval date of the initial board she was selected by, which was 16 October 2012.  

     d.  She also believes it to be unjust since a fellow Soldier in a similar situation was able to be integrated onto the active duty CPT list by her DOR, when the fellow Soldier was selected by the FY13 RC CPT PSB and promoted in FY14 after coming on active duty.  She has researched the topic and cannot find any reference to the integration of RC and Active Component (AC) promotion lists.  She would have been integrated onto the active duty list had her promotion list been approved before she entered active duty.  Some consideration should be given to the fact that reconvening boards is not a standard or usual circumstance.

3.  The applicant provides:

* a 12-page list titled "2012 CPT AMEDD (Army Medical Department) Promotion Selection Board Results by Competitive Category"
* her CPT promotion order
* two copies of her 1LT promotion order 

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows she executed an oath of office as a Reserve commissioned officer of the Army on 2 March 2009.  She was appointed in the Army Nurse Corps (ANC) with an area of concentration (AOC) of 66H (Medical Surgical Nurse).  She was promoted to 1LT on 21 August 2010.

2.  She requested release from the USAR for appointment in the Regular Army. On 12 December 2012, she signed an agreement for commissioning in the ANC and AOC 66H, with an additional skill identifier of 8A (Critical Care Nursing).  She was selected for inclusion into the Long-Term Health Education and Training (LTHET) Program.  Her contract stated she would be commissioned into the Regular Army, in the rank of 1LT, upon her arrival at her first duty assignment.  

3.  Orders A-03-205407, issued by U.S. Army Human Resources Command (HRC), Fort Knox, Kentucky on 22 March 2012, ordered her to active duty at Fort Sam Houston, TX for the purpose of fulfilling her active duty requirement in a voluntary indefinite status.  Her grade was 1LT and her DOR was 29 May 2012.

4.  Orders Number 181-110, issued by HRC on 29 June 2012, announced her active date of rank (ADOR) to 1LT as 21 August 2010.

5.  Orders Number 237-010, issued by HRC on 25 August 2014, announced her promotion to CPT with an effective date and DOR of 2 September 2014.  

6.  She provides a 12-page listing entitled "2012 CPT AMEDD Promotion Selection Board Results by Competitive Category," which was released on 16 October 2012.  Her name was listed on page two, under the category of "Non-Active Guard Reserve and Army National Guard Competitive Categories." 

7.  During the processing of this case, on 4 March 2015, an advisory opinion was obtained from the Chief of the Officer Promotions Management Division at HRC, who stated:

     a.  The Officer Promotions Management Division conducted a review of the applicant's selection and subsequent promotion to CPT, as it relates to her DOR, and concluded that her DOR of 2 September 2014 to CPT is lawful.

     b.  Her 1LT DOR, while a member of the Reserve Active Status List (RASL), placed her in the primary zone for promotion consideration by the FY12 CPT, AMEDD, Army National Guard of the United States (ARNGUS), Army Reserve Active Guard Reserve (AR-AGR), and Army Reserve Non-Active Guard Reserve (AR-Non-AGR) Competitive Categories Promotion Selection Boards (PSB).  
She was recommended for promotion on a board report.  

		(1)  These boards convened under Title 10, United States Code (USC), 14101.  Per Title 10, 14308(a), selection board reports convening under section 14101 of Title 10 are approved by the President of the United States.  

		(2)  The approval authority was delegated to The Principal Deputy Under Secretary of Defense (PDUSD) (Personnel and Readiness (P&R)) via Executive Order 12396.  

		(3)  Per Department of Defense Instruction 1310.01, Enclosure 3, 4(c) and Title 10, 14317, a selectee on a board report transferring from the RASL to the active duty list (ADL) must be on an approved promotion list.  The PDUSD (P&R) approved the board report on 19 September 2012 (officially becoming a promotion list).  The applicant entered the ADL on 25 May 2012, which is prior to the approval of the board report; therefore, she was not in a promotable status on the ADL.
     
	c.  Regarding the reconvening of the board, statutory requirements in Title 10, 613a prohibit the disclosure of board proceedings to anyone who is not a member of the board; therefore, we cannot disclose or provide any information on this matter.  

     d.  The applicant's 1LT DOR placed her above the zone for promotion consideration by the FY13 CPT ANC PSB, which convened under Title 10, section 611.  The board convened on 2 April 2013.  She was ineligible and removed from consideration by this board based upon statutory and regulatory requirements under Title 10, 6719 and Army Regulation 600-8-29 (Officer Promotions), paragraph 1-10, which require an officer to serve a minimum of one year on the ADL at the time the board convenes.  

     e.  The applicant competed, was selected, and was subsequently promoted to CPT by the FY14 CPT ANC PSB.  Her sequence number and promotion were based on her seniority when compared against her peers, as per the criteria outlined in Army Regulation 600-8-29, section VI, paragraph 1-39.  

8.  In a response to the advisory opinion, dated 1 April 2015, the applicant stated:

     a.  Her specific case regarding promotion to CPT should be reviewed by the Army Board for Correction of Military Records (ABCMR) as there are multiple situations that are not standard, and therefore there is no regulation supporting this exact situation and decision.  These situations arose from her being a non-due course officer. 

     b.  She was in the USAR and had already attended the Basic Officer Leadership Course (BOLC) before entering active duty.  If she had not been in the USAR, she would have attended the active duty BOLC prior to starting USAGPAN when she entered active duty on 25 May 2012, and therefore would have been board eligible for the FY13 CPT AMEDD ADL PSB.  Fellow peers who started USAGPAN along with her, who were direct accessions with no prior military service, were promoted ahead of her by more than a year.  This is a direct result of them entering active duty sooner because of no prior military experience.  She was ineligible to enter active duty as soon because of her time in the USAR and prior completion of BOLC.  This is a specific example of how she was actually at a disadvantage from her year group because of her prior military service.  

     c.  Frequently, there is an option to request a waiver for special circumstances, such as not entering onto the ADL early enough for board consideration.  For the FY13 CPT AMEDD ADL PSB, they were not accepting waivers for time on active duty.  For FY12 and FY14, they did.  If she had the opportunity to submit a waiver for her situation, she likely would have gone to the board that year.
     
	d.  Typical board results take 90-120 days to be released.  Had the RC board not had to reconvene, and ultimately take 10 months to publish the results list, her board results would have been released prior to her entry on active duty, and she would have been promoted significantly earlier than she actually was.

     e.  There is no regulation supporting her specific situation, which is why she is requesting review of her CPT DOR by the ABCMR.

     f.  Initially, she received correspondence from the Future Readiness Officer (FRO) indicating she would attend the FY13 CPT AMEDD ADL PSB.  In the process of clarifying if she could go or not, her future career progression was discussed.  The FRO at that time indicated that her delayed promotion could have adverse effects on her future career progression.  She was a 1LT with over 4 years in grade.  This could easily be viewed as her fault for various reasons.  She doesn't want her future career progression to be hampered by process issues.  She has included her letter to the board she sent to her active duty CPT AMEDD ADL PSB, from her prior Program Director, which addresses her potential for career progression.  

     g.  Because of all these reasons, she's requesting her case be reviewed for DOR adjustment. 

9.  In addition to her response to the advisory opinion, she provided a copy of a letter from the Director, USAGPAN, dated 18 February 2014, to the President of the FY14 CPT ANC PSB.  In summary, he stated the following:

* [Applicant] is a non-due course officer who was selected from a large pool of highly competitive applicants into the USAGPAN, which is the number 1 ranked Graduate Nurse Anesthesia Program in the United States
* she impressively completed the didactic portion of the program maintaining a 4.0 GPA and is currently 20 months into the residency phase at Tripler Army Medical Center
* she is the lead investigator for a significant research project
* she will graduate in June of 2015 and will very likely be the top graduate
* she is in the top 1% of Lieutenants he has worked with and has profound potential
10.  Department of Defense Instruction (DODI) 1310.01, gives instruction on the policy, responsibilities, and procedures to determine the DOR and precedence of commissioned officers on the ADL and on the RASL.  Enclosure 3, 4(c) states an officer on the RASL, who is on a promotion list and is placed on the ADL, will be placed on an appropriate promotion list for officers on the ADL under section 14317(b) of Title 10, USC provided:

     (1)  The officer is on a promotion list as a result of selection for promotion by a mandatory promotion board or a special selection board.

     (2)  Before being promoted, the officer is placed on the active duty list of the same military service and placed in the same competitive category.

     (3)  The effective date of promotion and DOR will be the same as if the officer had been selected to the grade concerned by the promotion board for active duty officers.  
 
11.  Army Regulation 600-8-29 (Officer Promotions) prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the ADL.  Chapter 1-10 states, in pertinent parts, to be considered for promotion by a selection board, an officer must be on the ADL on the day the board convenes.  Commissioned officers with less than 1 year of continuous active duty (since their most recent placement on the ADL) before the board convenes      (10 USC 619(c)) are not eligible for consideration by a PSB. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to have her CPT DOR back-dated to an earlier date (16 October 2012), consistent with the original board she was selected for, was carefully considered. 

2.  She contends it is an injustice that her RC board had to be reconvened, and subsequently, she entered active duty before that board was approved.  The delay in the release of this board resulted in her being a 1LT for four years, which she believes puts her at a disadvantage within her year group.  It is unjust that she wasn't integrated onto the ADL at the time she was originally selected for promotion while in the USAR.  

3.  The promotion list she was on was only a recommended list and not an official promotion list, which does not occur until the President of the United States or a designated representative approves it.  Her list was not approved until after she was on the ADL; therefore, she was not in a promotable status when she entered onto the ADL.  
4.  She was subsequently not eligible for the FY13 PSB, which convened on       2 April 2013, since she had not served a minimum of one year on the ADL at the time the board convened, as required by law and regulation.  Later, after meeting the one year ADL requirement, she was selected and subsequently promoted to CPT by the FY14 CPT ANC PSB. 

5.  She contends a fellow Soldier in a similar situation was able to be integrated onto the active duty CPT list by her DOR.  The Board does not have any means of verifying this contention.  The Board makes decisions based upon the individual set of circumstances, available evidence, and arguments presented.  Each ABCMR case is considered on its own merits.   

6.  While the applicant contends she cannot find regulatory guidance that prevents adjustment of her DOR to captain, the statutory and regulatory requirements are quite clear on the issue of consideration by a PSB for officers on the RASL and ADL.  Unfortunately, due to the time sequencing of both the RASL PSB approval by the appropriate authority and her entry onto the ADL, there is no legal basis to grant the applicant's request.  
 
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)                                         AR20110001475



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ABCMR Record of Proceedings (cont)                                         AR20140016040



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