IN THE CASE OF: BOARD DATE: 17 July 2014 DOCKET NUMBER: AR20140002462 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 adjustment of his date of rank (DOR) to lieutenant colonel (LTC) in the Florida Army National Guard (FLARNG) from 3 October 2013 to 8 January 2013. 2. The applicant states he is requesting an adjustment to his DOR to LTC based on a series of events which ultimately led to the delay in his promotion for approximately one year. a. In August 2012, he received notification that the FLARNG Field Grade Board and subsequent Federal Recognition Board (FRB) selected him for promotion to LTC. At that same time, he was preparing to deploy with the 930th Digital Liaison Detachment (DLD) to Afghanistan and was filling the LTC Operations and Maneuver Element Chief position. It is important to note that this promotion was considered a Below Zone promotion because he was not selected by the Department of the Army (DA); however, he did have over 5 years time in grade. At that time, packets for Below Zone promotions were required to be received by the National Guard Bureau (NGB) no later than 90 days prior to the next DA Board. FLARNG added a safeguard by requiring 120 days. His packet was submitted 123 days early, which should have allowed more than enough time to go through the process before the mandatory DA Board in January. b. Unfortunately, there were other officers’ packets that slowed the progress of the scroll. He was told by NGB that within just a few days of the orders being published, despite all the reviews and steps in the process being completed, the Army insisted any officers who were required to appear before the DA board had to be removed from the scroll. He was one of those officers. This occurred at approximately 130+ days after his Federal recognition packet was submitted. Making the delay worse, the DA board that he had to appear before was found to be non-compliant and therefore disqualified. So in effect, the DA Board that he was required to come off the scroll to appear before – never happened. Instead, he had to wait until a new board was convened with its results not being published until 3 October 2013. c. As he was already in the slot, where he had served throughout his deployment to Afghanistan, he was immediately promoted - 14 months after being selected. The decision to remove his name from the scroll 2-3 days prior to the publication of his promotion order, despite his packet being properly vetted through the entire Federal Recognition process, created a hardship for him in a variety of ways. Though the eventual problems and later disqualification of the DA board could not have been foreseen, taking him off the scroll and requiring him to appear before the DA board ultimately delayed his promotion for nearly a year including the entire length of his deployment. As such, while still a major (MAJ), he was forced to serve alongside LTC counterparts in theatre which created considerable problems for both himself and his unit in the conduct of their mission. Whatever delays that occurred were no fault of his, and in fact, he went through great lengths to ensure his packet was submitted over a month before the required submission deadline. Therefore, he requests Board consideration to adjust his DOR to 8 January 2013, which he was told was the date the promotion orders were published for the scroll he was removed from. 3. The applicant provides Orders 280-014. CONSIDERATION OF EVIDENCE: 1. Having had prior enlisted service in the U.S. Navy and the FLARNG, the applicant was appointed as a Reserve commissioned officer of the FLARNG and executed an oath of office on 20 August 1994. 2. He was honorably separated from the ARNG on 1 March 1996 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement). He was promoted to captain in February 2002. 3. He was reappointed as a Reserve commissioned officer of the FLARNG and executed an oath of office on 8 February 2002. He served in a variety of stateside or overseas assignments, including periods of mobilization (January 2003 to January 2005 and February 2005 to April 2006). 4. He entered active duty on 1 December 2006 in support of Drug Interdiction under Title 32, U.S. Code, section 502. He was promoted to major (MAJ) on 25 July 2007. He was honorably released from active duty on 23 November 2012. 5. On 3 October 2013, FLARNG issued the applicant a "Memorandum of Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty." This memorandum advised him that he was selected for promotion under the provisions of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) by a board that adjourned on 11 July 2013. His promotion eligibility date would be either of the following dates: * 24 July 2014 * Date Federal recognition extended in the higher grade * Date following the date Federal recognition is terminated in the current Reserve grade 6. On 7 October 2013, FLARNG published Orders 280-014 promoting him to LTC on 3 October 2013. 7. On 11 October 2013, NGB published Special Orders 5 AR extending him Federal recognition for promotion to LTC with an effective date and DOR as 3 October 2013. 8. An advisory opinion was received from the NGB on 16 June 2014 in the processing of this case. An NGB advisory official recommended approval to amend Federal Recognition Order Number 5 AR, dated 11 October 2013, to reflect the Soldier's promotion effective date to LTC as 9 January 2013 and pay all back pay and allowances that may be due as a result of this correction. a. In August 2012, the applicant received notification from the FLARNG Field Grade Board and subsequent FRB that he was eligible for promotion to LTC below the zone of consideration. He had over five years time in grade and submitted a Unit Vacancy Promotion (UVP) to his state, 123 days prior to his DA LTC promotion board. On 7 September 2012, he received FLARNG State Order # 251-133 promoting him to LTC with an effective date of 5 September 2012. b. The applicant would have been placed on scroll PL 02-13 and PL 03-13, dated 11 January 2013, but it was not processed due to both of these scrolls being cancelled because of DA Board conflicts. The earliest PL scroll that he was eligible for was PL 04-13 and he should have been on this PL scroll, dated 9 January 2013, but was not because he was appearing before his DA Board. Ultimately, he went before the DA board because his packet was not processed until 130 days after submission. Unfortunately, this DA board was also non-compliant and disqualified; therefore; he automatically was slated to appear before the next DA board, Fiscal Year 2013 (FY 13). c. DA Special Orders Number 5 AR was published with the effective date of 3 October 2013 for promotion to LTC. Due to no fault of the Soldier, the processing of these two boards was erroneously delayed causing many Soldiers to be mistakenly removed from their accurate boards that they should have appeared before for promotion to LTC. The applicant was one of many officers caught up in the conflict between the boards; therefore, it is recommended that he receive relief and adjustment of his DOR. d. This case recommendation was coordinated and reviewed with NGB FED REC Section, ARNG-HRP-R and NGB Officer's Policy Branch. The FLARNG concurs with this recommendation. 9. The applicant was provided with a copy of this advisory opinion but he did not submit a rebuttal or even respond. 10. Army Regulation 135-155 prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the ARNG and of commissioned and warrant officers of the USAR. a. Table 2-1 (Time in Grade requirements, commissioned officers other than commissioned warrant officers) states the minimum time in grade requirements for promotion from MAJ to LTC is 4 years and the maximum time in grade requirements are 7 years. b. Paragraph 2-10 (Mandatory selection boards). Mandatory selection boards will convene each year. These boards will consider ARNG and USAR officers on the Reserve Active Status List for promotion to CPT through LTC. These boards will consider officers for promotion without regard to vacancies in the next higher grade. The Secretary of the Army (SA) may, when the needs of the Army require, authorize the consideration of officers for promotion to the next higher grade from below the promotion zone. Below the zone promotions are a part of the mandatory Reserve of the Army promotion system. They are intended to provide officers of exceptional ability an opportunity to advance quickly to more responsible positions, help retain high quality officers, and give officers an incentive to perform at their highest potential. The board may recommend officers from below the zone, within the number established by the SA in the Memorandum of Instruction. b. Paragraph 4-17 (Promotion eligibility date and date of rank). The DOR is the date the officer actually or constructively was appointed or promoted to a specific grade. It is the date used to determine the relative seniority for officers holding the same grade. An officer’s DOR will be used to establish time in grade requirements to the next grade. DISCUSSION AND CONCLUSIONS: 1. The applicant was promoted to MAJ on 24 July 2007. Based on the NGB's advisory opinion, it appears his name was submitted for a position (or unit) vacancy promotion but for reasons beyond his control, he was not timely scrolled. He was eligible to be scrolled by the 9 January 2013 scroll but his name was removed due to the DA board. 2. He was selected for promotion by the DA board but that board was non-compliant and disqualified. This meant he had to appear before the next DA board which convened in 2013. He was selected by that board and his scroll date is 3 October 2013. That is why the NGB published his Federal recognition order with 3 October 2013 being the date of rank and the effective date. 3. As far as his position vacancy promotion, whenever there is a promotion error or injustice, the Board's remedy to such error is to recommend a member's record be submitted before a special selection board (SSB). Unfortunately for the applicant, there are no SSB's for a unit vacancy. There is no effective relief that this Board may provide the applicant. 4. As far as the promotion board being non-compliant and disqualified, regrettably, the applicant and several hundred others were in the same situation. There is no effective relief that this Board can give in the event of a non-compliant and disqualified promotion board. 5. The applicant was ultimately selected for promotion by the 2013 board that adjourned on 11 July 2013. His name was scrolled and his promotion orders were immediately published with an effective date and DOR of 3 October 2013. Notwithstanding the NGB's advisory opinion, the applicant's effective date of promotion and DOR are correct and should not change. 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) AR20140002462 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140002462 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1