BOARD DATE: 13 July 2017 DOCKET NUMBER: AR20160001521 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ____x____ ____x____ ___x_____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 13 July 2017 DOCKET NUMBER: AR20160001521 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is 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 her date of rank for promotion to first lieutenant to 14 January 2015. 2. The Board further determined 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 her effective date of rank for pay and allowances to 14 January 2015. _____________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. BOARD DATE: 13 July 2017 DOCKET NUMBER: AR20160001521 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, adjustment of her date of rank and effective date of rank (for pay and allowances) from second lieutenant (O-1) to first lieutenant (O-2) to 14 January 2015 with retroactive pay for the same period. 2. The applicant states the U.S. Army Human Resources Command (HRC) accidentally left her name off the promotion scroll, which the Secretary of Defense signs only twice a year. Since her name did not appear on the correct scroll, HRC could not publish promotion orders for her. She had to wait until the Secretary of Defense signed the next promotion scroll, which did not occur until 1 May 2015. 3. The applicant provides: * memorandum for record, dated 21 August 2015, with enclosures 1 through 20 * memorandum for record, dated 29 September 2015 CONSIDERATION OF EVIDENCE: 1. The applicant accepted an appointment as a Reserve commissioned officer in the rank of second lieutenant on 9 May 2013. She accepted an appointment as a second lieutenant in the Regular Army on 15 July 2013. 2. The applicant provided a partial HRC order listing the name, grade, branch, effective date, adjusted date of rank, promotion order number, and Personnel Service Company of individuals who were promoted to first lieutenant. The order is undated and her name is not listed. 3. On 18 May 2015, HRC published Order Number 138-124 promoting the applicant to first lieutenant with an effective date and date rank of 1 May 2015. 4. During the processing of this case an advisory opinion was received from the Chief, Officer Promotions Special Actions, HRC, who stated the applicant's request to adjust her first lieutenant date of rank to 12 January 2015 has partial merit. a. All pertinent documents were reviewed and it was determined the applicant should have been promoted to first lieutenant at (1) the earlier date between 18 months from entrance on active duty current tour or (2) the day prior to the second anniversary of the second lieutenant date of rank. She entered active duty on 12 July 2013; therefore, her first lieutenant date of rank should have been 12 January 2015. b. Title 10, U.S. Code, section 624(c), states appointments to first lieutenant shall be made by the President of the United States. The appointment authority was delegated to the Secretary of Defense through Executive Order 12396(c). The Secretary of Defense approved the appointment scroll containing the applicant's name on 1 May 2015 and she was subsequently promoted with a date of rank of 1 May 2015. The reason for the delay in appointment may have included an initial system error that did not recognize her basic date of original appointment or her entry on active duty date correctly and the Personnel Suitability Screening Process dictated by Department of Defense Instruction 1320.04, section 3583, and Office of the Deputy Chief of Staff, G-1, standard operating procedure. c. Although the applicant's effective date of promotion cannot be earlier than 1 May 2015, he recommended adjustment of her date of rank retroactive to her promotion eligibility date of 12 January 2015. The recommendation does not violate law and it allows the officer seniority on the Active Duty List per Army Regulation 600-8-29 (Officer Promotions). 5. The applicant was provided a copy of the advisory opinion for her information and/or possible rebuttal. In her rebuttal to the advisory opinion, dated 25 April 2016, the applicant stated HRC referenced Title 10, U.S. Code, section 624(c), to illustrate why an effective date of promotion cannot be backdated and, after reviewing the material, it appears that the mentioned subsection simply designates who the approving authority is for appointments. Nowhere does it mention a reason to deny backdating an effective promotion date. She states Army Regulation 600-8-29, paragraph 1-21, states that officers found to be qualified for promotion during the entire delay period will be promoted with the active date of rank, effective date (for pay and allowances), and position on the Active Duty List the officer would have received had there been no delay. The active date of rank and effective date may be earlier than the date of the actual order. Although her promotion order shows 1 May 2015 as the effective date, Army Regulation 600-8-29 appears to state that both the active date of rank and the effective date can be adjusted. She provided excerpts of sections in Title 10, U.S. Code; excerpts from Public Law 114-92; and excerpts from Army Regulation 600-8-29. REFERENCES: 1. Army Regulation 600-8-29 prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the Active Duty List. a. "Date of rank" is defined as the actual date on which an officer was appointed in a particular grade, adjusted for service credit. It is the date used to determine relative seniority for officers holding the same grade. "Promotion phase points" is defined as the timing of promotions to a grade expressed in terms of the length of time an officer will have served in the lower grade at the time of promotion to the higher grade. b. "Original appointment" is defined as any appointment in a Reserve or Regular Component of the Armed Forces that is neither a promotion nor a demotion. An officer may receive more than one "original appointment." c. Paragraph 1-41 states that if an officer is tendered a new original appointment in conjunction with being ordered to active duty, active date of rank will be determined by backdating from the date of placement on the Active Duty List by a period equal to the number of days by which the entry-grade credit awarded exceeds the promotion phase point in the competitive category that established the entry grade. 2. Pursuant to Title 10, U.S. Code, section 1552, the ABCMR acts on behalf of the Secretary of the Army in correcting Army records. DISCUSSION: 1. According to the HRC advisory opinion, the applicant's name was erroneously omitted from the appropriate promotion scroll through no fault of her own. The evidence of record shows the Secretary of Defense approved the applicant's appointment to first lieutenant on 1 May 2015. By law, the effective date of rank for pay and allowances cannot be prior to approval of the scroll by the Secretary of Defense. 2. The authority of the ABCMR to adjust an effective date of promotion is limited by the date of action taken by the Secretary of Defense to approve an appointment/promotion, otherwise known as the scroll. In other words, the effective date of rank (for pay and allowances) cannot be earlier than the date the scroll was approved. 3. Contrary to the advisory opinion, the applicant requests adjustment of her date of rank and effective date of rank to first lieutenant to 14 January 2015. Although her effective date of rank (for pay and allowances) cannot be adjusted prior to 1 May 2015, her date of rank can be adjusted to show a date of 14 January 2015, which is exactly 18 months from her entrance on active duty. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001521 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001521 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2