IN THE CASE OF: BOARD DATE: 4 December 2020 DOCKET NUMBER: AR20200002973 APPLICANT REQUESTS: in effect, that his date of rank (DOR) to Captain be adjusted from 11 June 2018 to 18 June 2016 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored Statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) * NGB Form 89 (Proceedings of a Federal Recognition Examining Board) * Promotion Memorandum * DA Form 1059 (Service School Academic Evaluation Report) * Civilian Education Transcript * DA Form 71 (Oath of Office – Military Personnel) * Officer Record Brief FACTS: 1. The applicant states: a. The requirements for promotion to 0-3 for a National Guard Judge Advocate are: * 1 year of service as an ARNG officer (AR 135-155, paragraph 2-5a; and 32 USC 309) * 2 years time in grade based on DOR (AR 135-155, paragraph 2-5a and Table 2-1) * to be educationally qualified which means completing the Judge Advocate Officer Basic Course (JAOBC), a ten-and-one-half week course at the JAG School in Charlottesville * the Direct Commission Officer Course (DCC) a six week course b. He satisfied all of those requirements on 18 June 2016, one year following his Basic Date of Appointment, however he was not allowed to be promoted per regulation. He was forced to submit a promotion packet after an additional year in service, which took until 11 June 2018 to get through the process. c. All Judge Advocate (JA) slots in the ARNG are 0-3/Captain or higher. 1LT is simply the rank provided at initial appointment to Non-Prior Service (NPS) candidates upon accession, based on the constructive service credit provided for 3 years of law school (IAW AR 135-100, paragraph 3-12, Tables 3-3 and 3-4). Additionally, he is prior service enlisted, having served from 27 November 2001 through 26 December 2006. He has filled an 0-3 slot since he was appointed to the Alabama National Guard. d. During the JA accession process, OTJAG and NGB provide the State with memoranda documenting both the recommended appointment grade (e.g. 1LT) and the time in grade (TIG) for that rank based on Army policy (including AR 135-100 and ARNG PPOM 08-035). Currently, these memoranda specify that JA officers appointed as 1LT’s should receive 1 year, 6 months time in grade (TIG). e. Upon accession, an ARNG JAG Officer receives a Federal Recognition Order from NGB reflecting the Rank and DOR as above, i.e. 1LT with a DOR 1 year 6 months prior to their actual date of accession. This backdated DOR is the effective date of rank for promotion and seniority purposes. In his case, his Basic Date of Appointment is 18 June 2015. His backdated DOR to 1LT is 18 December 2013. f. The requirements for promotion to 0-3 for a NG JA are: (a) 1 year of service as an ARNG officer (AR 135-155, paragraph 2-5a.; and 32 USC 309); (b) 2 years TIG based on DOR (AR 135-155, paragraph 2-5a and Table 2-1); and (3) to be educationally qualified, which means completing the Judge Advocate Officer Basic Course (JAOBC), a ten-and-one-half week course at the JAG School in Charlottesville, VA (the Direct Commission Officer Course (DCC), a six-week course in Ft. Benning, is a prerequisite for JAOBC) (AR 135-155, Table 1-2 and JALS Publication. He completed JAOBC on 5 May 2016. Therefore, he met the requirements for promotion to 0-3 on 18 June 2016 (one (1) year after his Basic Date of Appointment). g. Once an ARNG JA has served a year from appointment in the ARNG, both the 1- year service requirement and two years TIG from their Federal Recognition DOR will have necessarily been met. At that point, the officer will actually have 2.5 years TIG (18 months at appointment + 1 year of service), and thus, clearly meet the TIG requirement. Upon completion of JAOBC, the educational requirement is met. Therefore, after 1 year of service and completing JAOBC, a JAG 0-2 should be promoted to 0-3, absent some unfavorable action. He has never had an unfavorable action against him. h. The promotion of a NG JA 0-2 to 0-3, which, as above, is the minimum grade for a JA position, should be a pro-forma one with minimum required documentation by the State, and not as a unit vacancy promotion for other positions and grades where the Commander may determine such promotion based on years of performance. i. In a case regarding a JA ARNG promotion to CPT, the Army Board for Correction of Military Records determined that the 2-year TIG timeframe is the standard for promotion consideration unless a requirement was not met (See Proceedings Docket Number AR20040006332; note that the backdating of DOR for 1 LTs this case from 2001 was under older Army policy; now the DOR is backdated 18 months). See also Judge Advocate Legal Services Publication 1-1, par. 3-2 regarding promotion to CPT of JAs in AC and USAR, which is automatic upon completion of TIG and JAOBC. Based on the above, his DOR to O-3 should be 18 June 2016. He asks this Board to please rectify this error. 2. The applicant provides: a. A self authored statement which outlines the reasons he feels his DOR should be adjusted. b. DD Form 214, which covers the period of 10 January 2016 – 5 May 2016. c. NGB Form 89, dated 18 June 2015, which the Board found the applicant was qualified for Federal Recognition. d. Promotion Memorandum, dated 25 June 2018, which promoted the applicant to CPT with a DOR of 11 June 2018. e. DA Form 1059, dated 5 May 2016, which shows the applicant completed The Judge Advocate Officer Basic Course on 5 May 2016. f. Civilian Education Transcript, dated 4 August 2014, which shows the applicant received a law degree on 14 May 2010. g. DA Form 71, dated 18 June 2015, which shows the applicant accepted the oath of office as a Reserve Commissioned Officer. h. Officer Record Brief, dated 26 September 2017, which captures the applicant’s military service. 3. A review of the applicant’s service record shows: a. Having had prior enlisted service, he was appointed as a reserve commissioned officer and executed an oath of office on 18 June 2015. b. On 17 November 2017, ANRNG published Orders 321-529 promoting the applicant to CPT with an effective date of 16 November 2017. c. A memorandum from the NGB, dated 25 June 2018, which stated the applicant was being promoted in the Reserve of the Army for service in the Army National Guard with an effective date of 25 June 2018. d. Special Order #142, dated 25 June 2018, noted the applicant received permanent Federal recognition as a CPT with an effective date of promotion of 11 June 2018. 4. On 15 October 2020, the NGB rendered an advisory opinion in his case. An NGB official recommended disapproval of the requested relief. The official stated: a. CPT Hensley request that his date of rank (DOR) be backdated from 11 June 2018 to 18 June 2016, due to the fact that the he had met all the requirement to get promoted at the next higher per Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army, Dated 1 September 1994) and Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers, Dated 13 July 2004). b. CPT Hensley was appointed as a 1LT in the Alabama Army National Guard on 18 June 2015. Officers appointed as a member of the Judge Advocate Corp are entitled to 18 months service credit and are given direct commissions as 1LTs’ Pursuant to AR 135-100, 1LT Hensley at the time was given the appropriate amount of constructive service credit and therefore his DOR was back dated to 18 December 2013. On 5 May 2016, CPT Hensley completed JAOBC. Pursuant to AR 135-155, CPT Hensley met the minimum Time in Grade (TIG) and education requirements to be considered for promotion from 1LT to CPT on 18 June 2016. c. AR 135-155 set out the minimum TIG requirements before an officer may be considered for promotion from 1LT to CPT. AR 135-155 does not grant an officer an affirmative right to be promoted. It merely sets the minimum requirements before an Officer may be promoted. CPT Hensley states that his command at the time the 20th SFG determined that he was not ready for promotion. AR 135-155 sets out the requirements that an Officer must meet before they are eligible for promotion. AR 135- 155 does not direct a commander to immediately promote an eligible Officer, and because there is no affirmative right to be promoted as soon as eligible. d. After further review and discussions with the Alabama National Guard Staff Judge Advocate and the Federal Recognition Section we find that CPT Hensley’s records were adjusted to give him proper constructive service credit per AR 135-100, and that ultimately the command made the decision not to promote 1LT Hensley to the next higher grade of CPT, and was promoted a year later per Federal Recognition records. e. This opinion was coordinated with the Army National Guard Federal Recognition Section and the Alabama Army National Guard Staff Judge Advocate. 5. On 22 October 2020, the advisory opinion was forwarded to the applicant for acknowledgement and/or response. As of 9 November 2020, no response has been received. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. Based upon the findings of the NGB advisory and the lack of any rebuttal submitted by the applicant of those findings, the Board concluded there was insufficient evidence of an error or injustice which would warrant an adjustment to the applicant’s date of rank to CPT. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : XXX :XXX XXX: DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. REFERENCES: 1. Title 32, USC, section 307(d) provides that FEDREC shall be extended to each officer of the Army Reserve who has qualified for appointment as an officer of the Army National Guard in his reserve grade. 2 Title 10, USC, section 14308(f) (Effective date of promotion after FEDREC), states the effective date of a promotion of a Reserve commissioned officer of the Army or the Air Force who is extended FEDREC in the next higher grade in the ARNG or the Air National Guard under section 307 or 310 of Title 32 shall be the date on which such FEDREC in that grade is so extended. Pursuant to Title 10, USC, section 741(d) (2) provides that unless otherwise provided by law, the DOR of an officer who holds a grade as a result of a promotion is the date of his appointment to that grade. 3. Title 10, USC, section 12203, provides that appointments of Reserve officers in the grades of lieutenant colonel and below shall be made by the President. This authority has been delegated to the Secretary of Defense via Section 1, Executive Order 13384, dated 27 July 2005. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200002973 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1