IN THE CASE OF: BOARD DATE: 2 August 2016 DOCKET NUMBER: AR20150003428 BOARD VOTE: ____x____ ___x___ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 2 August 2016 DOCKET NUMBER: AR20150003428 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. amending Land Component (LC), Joint Forces Headquarters Kansas Orders 178-712, dated 26 June 2012, to show the applicant's date of rank and effective date for promotion to captain (CPT) as 6 June 2011; and b. amending National Guard Bureau Special Orders Number 226 AR, dated 27 June 2012 to show the applicant was extended Federal recognition in the rank of CPT for the purpose of promotion, effective 6 June 2011. c. paying the applicant any back pay and allowances due as a result of the above corrections. _____________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. IN THE CASE OF: BOARD DATE: 2 August 2016 DOCKET NUMBER: AR20150003428 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 his date of rank (DOR) and effective date of promotion to the grade of captain (CPT) be changed to reflect his promotion by a Department of the Army Special Selection Board (SSB) and to include back pay and allowances. 2. The applicant states he was promoted to CPT effective 1 March 2012. He was then selected for promotion by an SSB for promotion to CPT under the same criteria and instructions established for the regularly constituted Fiscal Year 2011 CPT Army Promotion List, Reserve Component, Promotion Section Board (FY11 CPT APL RC PSB). 3. He was passed over for promotion by the FY10 CPT APL RC PSB due to the Kansas Army National Guard (KSARNG) not knowing how to do an educational waiver. The next year his completion of his educational requirement was missing in his promotion packet and he was passed over again. He requested an SSB due to this error and he was promoted to CPT under the criteria of the FY11 CPT APL RC PSB. 4. The applicant provides a memorandum, dated 21 December 2012, from U.S. Army Human Resources Command (HRC). 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. The applicant previously served 15 years, 6 months, and 29 days in the Army National Guard (ARNG) and the U. S. Army Reserve (USAR) in an enlisted status. 3. On 20 August 2004, the applicant was commissioned a second lieutenant in the KSARNG. On 20 August 2006, he was promoted to first lieutenant and extended Federal Recognition. 4. On 13 October 2010, the applicant requested a waiver of statutory education requirements for promotion to CPT. On 14 October 2010, his unit forwarded the request to HRC. 5. On 1 November 2010, HRC approved the applicant's education waiver for promotion consideration only to be effective for no more than 2 years. He had to complete the required education to be promoted. The waiver expired on 1 November 2012. 6. On 7 April 2011, the National Guard Bureau (NGB) requested an SSB for the applicant. He was a non-select for the FY11 CPT APL RC PSB due to his education waiver not being included in the Army Selection Board System (ASBS). 7. On 6 June 2011, the applicant received his Bachelor of Science Degree from Grantham University. 8. Land Component (LC), Joint Forces Headquarters Kansas Orders 178-712, dated 26 June 2012, promoted the applicant to CPT with an effective date and DOR of 1 March 2012. 9. NGB Special Orders Number 226 AR, dated 27 June 2012, show he was extended Federal Recognition for his promotion to CPT, effective 1 March 2012. 10. On 21 December 2012, the applicant was notified he was considered and selected for promotion to CPT by an SSB under the same criteria and instructions established for the regularly constituted FY11 CPT APL RC PSB. 11. An email, dated 28 December 2012, from NGB notified the applicant's unit he had been approved by an SSB based the criteria for the FY11 CPT APL RC PSB. The results from the FY11 CPT APL RC PSB were approved on 27 January 2011. 12. On 16 December 2015, a Physical Evaluation Board found the applicant physically unfit for duty and recommended he receive a permanent disability retirement with a combined disability rating of 100 percent. On 15 February 2016, the applicant was placed on the Retired List in the grade of CPT with a disability rating of 100 percent. 13. On 21 July 2015, an advisory opinion was received from the NGB recommending approval of the applicant's request. a. The KSARNG granted the applicant an education waiver on 1 November 2010 for no more than 2 years. He completed his degree on 6 June 2011 making him eligible for promotion. b. He was selected for promotion to CPT by an SSB based on the criteria for the FY11 CPT APL RC PSB. He was promoted to CPT with an effective date of 1 March 2012. 14. On 6 August 2015, the advisory opinion was referred to the applicant for his comments/rebuttal. The applicant did not provide comments/rebuttal to the advisory opinion. REFERENCES: 1. Title 10, United States Code, section 741(d)(2) (10 USC 741(d)(2)) states that except as otherwise provided by law, the DOR of an officer who holds a grade as the result of a promotion is the date of his appointment to that grade. 2. 10 USC 12205(a) states no person may be recognized in a grade above the grade of first lieutenant unless that person has been awarded a baccalaureate degree by a qualifying educational institution. 3. 10 USC 14502 provides an avenue of relief for officers who were considered but not selected for promotion due to a material error in the promotion process. 4. 10 USC 14502(b) permits the Secretary of the military service concerned to convene an SSB to determine whether the officer or former officer should be recommended for promotion if the Secretary determines "the mandatory promotion board did not have before it for its consideration material information." 5. 10 USC 14502(e)(1) states an officer whose name is placed on a promotion list as a result of recommendation for promotion by a SSB shall as soon as practicable be appointed to the next higher grade in accordance with the law and policies which would have been applicable had he been recommended for promotion by the board which should have considered or which did consider him. 6. 10 USC 14502(e)(2) states an officer who is promoted to the next higher grade as the result of the recommendation of a special selection board convened under this section shall, upon such promotion, have the same date of rank, the same effective date for the pay and allowances of that grade, and the same position on the reserve active-status list as the officer would have had if the officer had been recommended for promotion to that grade by the selection board which should have considered, or which did consider, the officer. 7. 10 USC 1450(e)(3) states if the report of a special selection board convened under this section, as approved by the President, recommends for promotion to the next higher grade an officer not currently eligible for promotion or a former officer whose name was referred to it for consideration, the Secretary concerned may act under section 1552 of this title to correct the military record of the officer or former officer to correct an error or remove an injustice resulting from not being selected for promotion by the board which should have considered, or which did consider, the officer. 8. 10 USC 1552(a) (1) states the Secretary of a military department may correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that military department. DISCUSSION: 1. The applicant's DOR and effective date of promotion to CPT is currently 1 March 2012. The KSARNG Office of Personnel Management placed him at the front of the line for promotion with the FY12 CPT APL RC PSB. The date chosen is not within the range selected for similarly situated selectees from the FY11 CPT APL RC PSB. 2. The applicant should have received a DOR and effective date for pay purposes consistent with the date range used for the FY11 CPT APL RC PSB. The results of this board were published 27 January 2011. This was the earliest selectees from that board could be promoted. The applicant was awarded his baccalaureate degree on 6 June 2011. In accordance with 10 USC 12205(a) the earliest the applicant could be promoted is 6 June 2011. 3. The ABCMR does not have independent authority to change the effective date of promotion for officers absent other statutory provisions. In this case, the ABCMR is neither substituting its own decision-making authority for that of the Secretary of Defense, nor acting without statutory permission. The Board is effectuating the decision of the properly convened SSB and it is acting pursuant to the authority under 10 USC 14502(e)(2). //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150003428 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150003428 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2