IN THE CASE OF: BOARD DATE: 4 August 2016 DOCKET NUMBER: AR20160004548 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: 4 August 2016 DOCKET NUMBER: AR20160004548 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 adjusting his date of rank to first lieutenant to 28 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. IN THE CASE OF: BOARD DATE: 4 August 2016 DOCKET NUMBER: AR20160004548 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) for promotion to first lieutenant (1LT)/O-2. 2. The applicant states, in effect, the following: a. His DOR to 1LT should be amended to 28 January 2015, in order to reflect his entry grade credit as outlined on his DA Form 5074-1-R (Record of Award of Entry Grade Credit (Health Services Officers)). This will keep him in his proper year group and on the proper timeline for promotions in the future. b. He was awarded an additional 1 year, 2 months, and 16 days from the start of his entry of active duty date on 14 October 2014, based on his previous military service from 11 May 2012 through 13 October 2014. He transitioned from the Army National Guard (ARNG) to a specialty branch [Medical Service Corps] of the Regular Army and was not awarded entry grade credit at the time. No DA Form 5074-1-R was completed or filed at the time of his entry on active duty, through no fault of his own, thereby causing an error in the calculation of the date he was eligible for promotion to 1LT. c. He was referred to the Army Board for Correction of Military Records (ABCMR) by the U.S. Army Human Resources Command (HRC). 3. The applicant provides copies of: * DA Form 71 (Oath of Office – Military Personnel), dated 11 May 2012 * NGB Form 22 (National Guard Bureau – Report of Separation and Record of Service), for the period ending 13 October 2014 * DA Form 71, dated 14 October 2014 * Order Number 339-001, issued by HRC on 5 December 2014 * Order Number 282-511, issued by HRC on 8 October 2015 * DA Form 1506 (Statement of Service - For Computation of Length of Service for Pay Purposes), dated 17 October 2015 * DA Form 5074-1-R, dated 26 January 2016 CONSIDERATION OF EVIDENCE: 1. Following prior enlisted service in the ARNG, the applicant was appointed as a Reserve commissioned officer in the ARNG on 11 May 2012, in the rank of second lieutenant (2LT). 2. The applicant was honorably separated from the ARNG and transferred to the Individual Ready Reserve (IRR) on 13 October 2014. Orders 301-028, issued by Joint Forces Headquarters, Utah Army National Guard on 28 October 2014, show he was separated for the purpose of accepting an appointment as a commissioned officer in the Regular Army. 3. Orders A-10-409716, issued by HRC on 1 October 2014 and amended by Orders 1-10-409716A01, ordered him to active duty in an indefinite status on 14 October 2014, for the purpose of attending the Army Medical Department (AMEDD) Basic Officer Leader Course (BOLC) at Fort Sam Houston, Texas. The Additional Instructions of these orders contain the entry "DOR is to be adjusted based on const [constructive] credit of 00 yrs, 00 mos, 00 dys," meaning he was not awarded any constructive credit at the time of his appointment. 4. He was appointed as a Regular commissioned officer on 14 October 2014, in the rank of 2LT in the Medical Service (MS) Corps. 5. His record contains the following: a. A DA Form 1059 (Service School Academic Evaluation Report), dated 19 December 2014, which shows he completed all requirements of the AMEDD BOLC on 19 December 2014. b. A DA Form 5074-1-R, prepared 26 January 2016, which shows he was awarded constructive credit in the amount of 1 year, 2 months, and 16 days, based on his prior active commissioned service credit. c. Orders A-10-409716A03, issued by HRC on 13 June 2016, which further amended his original orders by ordering his DOR to be adjusted based on his constructive credit of 1 year, 2 months, and 16 days. d. Order Number 196-003, issued by HRC on 14 July 2016, which promoted him to 1LT with an effective date and DOR of 2 June 2016. 6. He provides the following documents that have not been addressed above: a. Orders Number 339-001, issued by HRC on 5 December 2014, which promoted him to 1LT with an effective date and date of rank of 15 October 2014. These orders were rescinded by Orders Number 282-511 issued by HRC on 8 October 2015, by reason of his appointment to a specialty branch. b. DA Form 1506, dated 17 October 2015, which shows he had a total of 8 years of creditable service as of the date the form was completed. It also shows his basic active service date of 4 May 2014 and his pay entry basic date as 25 January 2007. 7. An advisory opinion was obtained on 4 May 2016 from the Chief, Officer Promotions, HRC, who opined the following: a. Based on a review of their records and the information provided, the applicant's request had merit, however, as of the date of the advisory, he had not been approved for appointment to 1LT. Title 10, U.S. Code (USC), section 624(c) provides that appointments to 1LT 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 applicant's name had already been placed on an appointment scroll to 1LT and was currently being staffed for the Secretary of Defense's approval. b. The primary reason for delay in appointment (not due to the fault of the applicant) included an initial system(s) error that did not recognize his basic date of original appointment and/or his entry on active duty date to correctly calculate eligibility for scroll approval and promotion, and the Personnel Suitability Screening Process dictated by Department of Defense Instruction 1320.04, section 3583 and Deputy Chief of Staff/G-1, Standard Operating Procedure. c. Their office reviewed all supporting documentation pertaining to the advisory opinion request and determined that it was lawful. Army Regulation 600-8-29 (Officer Promotions), table 3-1, rule 3 states that in his case, he should have been promoted to 1LT at the earlier date between 18 months from entrance on active duty current tour, or the day prior to the 2nd anniversary of his 2LT date of rank. His entered active duty tour is 14 October 2014 (plus 18 months equals 14 April 2016) and his 2LT date of rank is 14 October 2014 (plus 24 months equals 13 October 2016); therefore his 1LT date of rank should have been 14 April 2016 (unless proven otherwise ineligible). d. Although his effective promotion date cannot be earlier than the (pending) scroll approval date, per section 624(c), they recommended that (upon receipt) his DOR be reactive to his promotion eligibility date of 14 April 2016. Their recommendation did not violate section 624(c) and allowed the officer's seniority in the active duty list per Army Regulation 600-8-29 and section 741. e. If (Applicant) continues to believe that he has not received a correct reappointment date and or constructive credit pre-reappointment to a specialty branch (Medical), we recommend that he address these concerns with his branch, Directory of Health Services for further review or adjustment prior to or not in lieu of the above. 8. The advisory opinion was provided to the applicant on or about 10 May 2016 to afford him the opportunity to respond to its content. He responded on or about 25 May 2016, via email stating he contacted HRC to revisit the advisory opinion as it related to his constructive credit not being considered. REFERENCES: 1. Army Regulation 600-8-29 prescribes policies and procedures for officer promotions. a. Paragraph 1-43 (Grade and active date of rank of other than Regular Army commissioned officers assigned to an Army Medical Department Corps upon placement on the active duty list), states if an officer is tendered a new original appointment in conjunction with being ordered to active duty, the grade will be determined as prescribed in Army Regulation 135-101. The active date of rank (ADOR) will be determined by backdating from the date of placement on the active duty list (ADL) 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. b. Chapter 3 (Managing Promotions to 1LT), table 3-1 shows the earlier date, between the day prior to the second anniversary of the officer's DOR as a 2LT, or 18 months from the officer's date of entry on active duty, is used to determine the date of promotion to 1LT. 2. Title 10, U.S. Code, section 624 (Promotions: How Made), states a fully-qualified list of officers on a promotion list shall be considered approved when it has been approved by the President. This authority has been delegated to the Secretary of Defense. DISCUSSION: 1. The applicant's request correction of his DOR for promotion to 1LT was carefully considered. The applicant contends his constructive credit was not taken into account when determining his entry date on active duty upon his reappointment in the MS Corps; therefore, his eligibility date for promotion to 1LT was incorrect. 2. The evidence shows he was given constructive credit of 1 year, 2 months, and 16 days on 26 January 2016, approximately 14 months after his entry on active duty. This oversight was not taken into account when determining his date of eligibility for promotion to 1LT. 3. It appears the HRC advisory opinion failed to take into account this constructive credit when calculating his promotion eligibility as well. However, HRC does acknowledge that his 1LT DOR should have been 14 April 2016, in accordance with applicable regulations and law without any reappointment and/or constructive credit given. 4. The constructive credit would have resulted in the applicant receiving an adjusted entry date to 2LT of 28 July 2013. The applicable Army regulation states promotion to 1LT should take place on the earlier of the following two dates: one day prior to the second anniversary of the officer's 2LT DOR or 18 months after entering active duty. In the applicant's case, the earlier date was the second option; therefore, resulting in a 28 January 2015 promotion date. 5. He was promoted to 1LT with the same effective date and DOR of 2 June 2016, after the scroll and results were approved by the Secretary of Defense. 6. The effective date of promotion is established under law by Title 10, U.S. Code and approved by the Secretary of Defense; this Board does not have the authority to change that date. However, the delay in his promotion to 1LT was due to no fault on his part. As such, and as a matter of equity, it would be appropriate to correct his DOR (not his effective date of promotion) to 28 January 2015. //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) AR20160004548 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2