DEPARTMENT OF THE ARMY ARMY REVIEW BOARDS AGENCY 251 18TH STREET SOUTH, SUITE 385 ARLINGTON, VA 22202-3531 SAMR-RB 11 September 2017 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for AR20160002269 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 18 July 2017, in which the Board members unanimously recommended partial relief of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by changing his date of rank and effective date retroactive to his promotion eligibility date of 21 May 2014, based under an "unusual delay" as it would apply to §741 & §742. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 11 January 2018. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: d;b>;tA[_ .ct Encl Deputy Assistant Secretary of the Army (Review Boards) BOARD DATE: 18 July 2017 DOCKET NUMBER: AR20160002269 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: 18 July 2017 DOCKET NUMBER: AR20160002269 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: a. showing his date of rank to 1LT as 10 October 2014; b. showing his effective date to 1LT as 10 October 2014; c. authorizing payment of all back pay and allowances as a result of these corrections; and d. reviewing his records to determine if, based on these corrections, he should have been considered for promotion to captain/O-3 and, if so, submitting his records to the appropriate special selection board for review. 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 showing his date of rank and effective date for pay and allowances to 1LT as 20 May 2014. ___________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: 18 July 2017 DOCKET NUMBER: AR20160002269 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 correction of his date of rank (DOR) and effective date to first lieutenant (1LT) with entitlement to back pay and allowances. 2. The applicant states: a. His DOR to 1LT should be changed to 20 May 2014, the date he entered active duty service. b. His original commissioning date was 6 May 2011. This 3-year period fulfilled the requirements of Army Regulation 600-8-29 (Officer Promotions), Table 3-2, step 7. As such, he also requests all back pay and allowances from his requested DOR. c. He was directed by the U.S. Army Human Resources Command (HRC) to submit this request for correction of his records to the Army Board for Correction of Military Records (ABCMR) after this issue was identified in November 2015. This error adversely affected his promotion to 1LT, as well as his promotion to captain (CPT). 3. The applicant provides: * two DA Forms 71 (Oath of Office – Military Personnel) dated 6 May 2011 and 22 May 2014 * Orders 132-059-A-6882 issued by Headquarters, U.S. Army Cadet Command, Fort Knox, KY, on 12 May 2014 * Orders 254-172 issued by Headquarters, U.S. Army Garrison, Fort Sill, OK, on 11 September 2014 CONSIDERATION OF EVIDENCE: 1.  After periods of active enlisted service with the U.S. Navy and the Regular Army, the applicant was appointed as a Reserve commissioned officer of the Army in the rank and grade of second lieutenant (2LT)/pay grade O-2 on 6 May 2011. 2.  Orders 132-059-A-6882 issued by Headquarters, U.S. Army Cadet Command on 12 May 2014 show the applicant was ordered to active duty on 20 May 2014 for a period of 4 years. His reporting date to the Air Defense Artillery (ADA) Basic Officer Leader Course-Branch (BOLC-B) (second phase of BOLC) was 22 May 2014. These orders show his date of appointment to 2LT as 6 May 2011. 3.  On 22 May 2014, a second DA Form 71 shows the applicant was appointed as a commissioned officer in the Regular Army in the rank of 2LT. 4.  Orders 254-172 issued by Headquarters, U.S. Army Garrison, Fort Sill, on 11 September 2014, show the applicant received permanent change of station orders to Japan with a reporting date 10 November 2014. 5.  The applicant's U.S. Army ADA School course completion diploma shows he completed ADA BOLC-B, as a member of Class 14-002 during the period 2 June 2014 through 10 October 2014 at Fort Sill, OK. 6.  Order Number 041-015 issued by HRC on 10 February 2016 shows the applicant was promoted to 1LT with an effective date and DOR of 28 January 2016, 20 months after he entered active duty. 7.  There is no evidence within the applicant's records showing he was under a suspension of personnel actions (flag) or any other apparent reason to delay a timely promotion to 1LT. 8.  In the processing of this case, an advisory opinion was obtained on 13 January 2017 from the Chief, Officer Promotions and Special Actions, HRC, who was asked to determine if the applicant's 1LT DOR should be corrected. The advisory official noted and opined: a.  Based on a review of HRC records; systems; Title 10, U.S. Code; Army Regulation 600-8-29; and the information provided, they found his request to adjust his DOR has merit. Army Regulation 600-8-29, Table 3-2, affirms that in his case, he should have been promoted to 1LT on 21 May 2014 (unless proven to be otherwise ineligible) if not for an "unusual delay." b. The reason for the unusual delay in appointment may have included, but may not have been limited to: (1) an initial administrative or system(s) error that did not correctly calculate or recognize him as eligible for scroll appointment, approval, and promotion; (2) incorrect calculation of creditable service or constructive credit (which affects his active duty DOR; or (3) a delay due in part to the screening requirement for adverse and reportable information for promotion and Federal recognition to colonel and below, which was later packaged and released as Army Directive 2016-26 (Screening Requirements for Adverse and Reportable Information for Promotion and Federal Recognition to Colonel and Below); Department of Defense Instruction 1320.04 (Military Officer Actions Requiring Presidential, Secretary of Defense, or Under Secretary of Defense for Personnel and Readiness Approval or Senate Confirmation); and Title 10, U.S. Code, section 3583 (Requirement of Exemplary Conduct). c. The Secretary of Defense recently approved the precedent-setting adjustment of 78 officers' DORs and effective dates for pay to the earliest allowable date pursuant to Title 10, U.S. Code, based on an "unusual delay" as reviewed by the Department of the Army Office of the Judge Advocate General and the Department of the Army Office of the General Counsel with no legal objections. d. HRC recommends granting full relief and adjusting his DOR and effective date retroactive to his promotion eligibility date of 21 May 2014 pursuant to Title 10, U.S. Code, section 741 (Commissioned Officer), based on an "unusual delay" as it would apply to sections 741 and 742 (unless proven otherwise ineligible). 9. The applicant was provided a copy of this advisory opinion on 17 January 2017 for an opportunity to comment and/or submit a rebuttal. He replied via email and stated: a. He read and understood the recommendation from HRC regarding his DOR to 1LT. He accepts their findings, and therefore approves moving forward with the final determination by the ABCMR. b. He would also like to ensure that his DOR change will be accompanied by the proper income recuperation of 20 months of back pay from 21 May 2014 through 28 January 2016. REFERENCES: 1. Army Regulation 135-155 (Army National Guard and Army Reserve – Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for the promotion of Reserve Component (RC) officers. Table 2-1 states the minimum time in grade (TIG) requirement for promotion from 2LT to 1LT is 24 months and the maximum TIG from 2LT to 1LT is 42 months. Table 2-2 states the military education requirement for promotion from 2LT to 1LT is completion of the resident officer basic course (OBC), except in certain circumstances. Officers assigned to the Control Group, including Early Commissioning Program participants transferred to the Control Group (Annual Training), or the Selected Reserve preceding their promotion eligibility to 1LT are not required to meet the educational requirement for promotion to 1LT. 2. Army Regulation 600-8-29 prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the Active Duty List. a. The active duty DOR of an officer receiving an original appointment as a Regular Army commissioned officer is the date the appointment is accepted unless the appointee was, at the time of appointment, a Reserve officer. Completion of OBC is not a requirement for promotion to 1LT of a Regular Army officer. b. The TIG required for promotion from 1LT to captain (CPT) is 2 years. DISCUSSION: 1. The applicant was appointed as a 2LT Reserve officer on 6 May 2011 and remained in the USAR. Eligibility for promotion to 1LT of an RC officer requires a minimum TIG of 24 months. 2. On 20 May 2014, the applicant was ordered to active duty and subsequently was appointed a 2LT in the Regular Army on 22 May 2014. He completed BOLC on 10 October 2014, and was promoted to 1LT with a DOR and effective date of 28 January 2016. 3. HRC opines the applicant's 1LT DOR and effective date should have been 21 May 2014 as he had completed 2 years minimum TIG as a 2LT in the RC. 4. The effective date of promotion is established under law by Title 10, U.S. Code, and is approved by the Secretary of Defense. HRC stated the Secretary of Defense recently approved the precedent-setting adjustment of 78 officers' DORs and effective dates for pay to the earliest allowable date pursuant to Title 10, U.S. Code, based on an "unusual delay." It appears this case is similar. 5. For unknown reasons, the applicant was not promoted to 1LT in the RC at 24 months of TIG as allowed by regulation. Upon entry on active duty as a USAR commissioned officer on 20 May 2014, the applicant could have immediately been promoted to 1LT (the next day) as he met the minimum 24 months of TIG as a 2LT, but had not reached the maximum 2LT TIG of 42 months, provided he met all other eligible promotion criteria. 6. If the Board recommends correction of the applicant's records to show he was promoted to 1LT as recommended in the HRC advisory opinion and allowed by regulation, the Board further may direct submission of his records to a special selection board for promotion consideration to CPT under the appropriate fiscal year(s) criteria, if applicable. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004548 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002269 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2