IN THE CASE OF:  	  

		BOARD DATE:  1 October 2015	  

		DOCKET NUMBER:  AR20150001147 


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 her rank/grade be corrected from major (MAJ)/O-4 to lieutenant colonel (LTC)/O-5 and that the correct spelling of her last name be reflected on her promotion and retirement orders.

2.  The applicant states her official date of rank (DOR) to LTC was 1 November 2010.  However, her unit's human resources section failed to process her promotion orders.  Consequently, she was out-processed and retired as a MAJ, effective 31 January 2011.  She discovered this after her retirement, when she was informed by the U.S. Army Human Resources Command (HRC).  Additionally, her unit failed to update her name change, effective June 2010, and spelled her name incorrectly on her promotion and retirement orders.  Her last name should be reflected as "CZARNECKI" and not as "CZARNECK" or "GREEN."

3.  The applicant provides copies of:

* her military identification card 
* Orders Number 210-004, dated 29 July 2010
* Orders Number 327-012, dated 23 November 2010
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending on 31 January 2011




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.  Following prior enlisted service, the applicant entered active duty on 
12 January 1991 and was appointed as a Reserve commissioned officer on 
18 December 1992.

3.  Orders Number 351-033, issued by the U.S. Total Army Personnel Command (later reorganized as HRC), on 17 December 1997, promoted her to the rank/grade of captain (CPT)/O-3 with the effective date and DOR of 1 January 1998.

4.  Orders Number 275-083, issued by HRC on 1 October 2004, promoted her to MAJ/O-4 with an effective date and DOR of 1 October 2004.  

5.  Her record contains a DA Form 71 (Oath of Office - Military) that shows she was appointed as a Regular Army commissioned officer in the rank of MAJ on 
22 October 2004.

6.  Orders Number 210-004, issued by Headquarters, U.S. Army Office of Military Support, Washington, D.C. on 29 July 2010, show she was retired from active service and released from her assignment and duty, effective 31 January 2011. She was placed on the Retired List the following day, in the retirement rank/grade of MAJ/O-4.  These orders show her last name spelled as "CZARNECK." 

7.  Orders Number 327-012, issued by HRC on 23 November 2010 states/shows:

	a.  "The President of the United States has reposed special trust and confidence in the patriotism, valor, fidelity, and abilities of [the applicant].  In view of these qualities and their demonstrated potential for increased responsibility, they are, therefore, promoted in the United States Army to the grade of rank shown [LTC].  The promotion is not valid and will be revoked if the officer concerned is not in a promotable status on the effective date of promotion.  The authority for this promotion is Section 624 of Title 10 United States Code."

	b.  Her last name was listed as "GREEN" and her DOR/effective date for promotion to LTC was listed as 1 November 2010.

8.  She was honorably retired due to sufficient service for retirement on 
31 January 2011.  Her DD Form 214 shows, her last name as "CZARNECKI," her rank/grade as MAJ/O-4, and her DOR as 1 October 2004.

9.  An advisory opinion, dated 1 March 2015 was obtained from the Officer Promotions Management Branch, HRC.  The advisory official stated:

	a.  A review of the applicant's selection and subsequent promotion to the rank of LTC was conducted and concluded that her promotion to LTC was lawful.

	b.  The applicant's DOR to MAJ placed her in the primary zone for promotion consideration to LTC for the fiscal year (FY) 2010, LTC, Operations Support, Promotion Selection Board.  

	c.  HRC's records indicated the applicant was promoted by HRC Order Number 327-012, dated 23 November 2010, with an effective DOR of                  1 November 2010.  Her military records were updated prior to her departure from active duty.  

	d.  The advisory official declined to address the issue of her retirement as a MAJ.

10.  The applicant did not respond to the advisory opinion.  

11.  Army Regulation 600-8-29 (Officer Promotions), paragraph 1–18 (Accepting promotion) states, unless an officer declines a promotion in writing under the provisions of chapter 5, he or she is considered to have accepted the promotion 
on the effective date announced in the promotion order.  The officer's promotion has an impact on service obligations and retirement.  The active duty service obligation is a specific period of active duty an officer must serve before being eligible for voluntary separation or retirement.  Officers accepting a promotion to any grades other than Chief Warrant Officer three/four/five do not incur an additional service obligation; however, to retire or separate in the next higher grade, officers in the rank of LTC must serve satisfactorily in the new grade for 
3 years.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record indicates the applicant was selected for promotion after she had been approved for retirement.

2.  She provided a copy of Orders Number 210-004, dated 29 July 2010, her retirement orders, showing her last name spelled incorrectly.  However, the copy of the orders in her record shows her name is correctly spelled.  

3.  Her retirement orders directed that she be released from assignment and duty on 31 January 2011 and placed on the retired list in the retirement rank/grade of MAJ/O-4.  Her DD Form 214 confirms her retirement occurred as directed by her retirement orders.

4.  Orders Number 327-012, issued by HRC, on 23 November 2010, promoted her to LTC with a DOR and effective date of 1 November 2010.  However, these orders incorrectly list her name as "GREEN."

5.  She was lawfully promoted to LTC on 1 November 2010.  Based upon her retirement/release from active duty she lawfully held/served as a LTC until 
31 January 2011, a period of 3 months.  

	a.  Army Regulation 600-8-29 states, "to retire or separate in the next higher grade, officers in the rank of LTC must serve satisfactorily in the new grade for   3 years."

	b.  The evidence of record shows she was placed on the retired list as a MAJ because she completed less than the required 3 year service obligation in the rank of LTC.  Her DD Form 214 reflects her rank as MAJ for the same reason.  














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 amending Orders Number 327-012, issued by HRC, on 23 November 2010 to show her last name as reflected on her DD Form 214.

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 correcting her retirement orders to show her rank as LTC, placing her on the retired list as an LTC, or correcting her DD Form 214 to show her rank as LTC.  




      ___________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)                                         AR20150001147



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ABCMR Record of Proceedings (cont)                                         AR20150001147



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