IN THE CASE OF: BOARD DATE: 7 January 2016 DOCKET NUMBER: AR20150004400 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 her date of rank to captain in the U.S. Army Reserve from 12 April 2010 to 29 April 2009. 2. The applicant states: * a special selection board confirmed she should have been promoted on 29 April 2009 * although the board confirmed she should have been previously promoted based on her record, she is being denied the correction based on her need to send supporting documentation that a captain/O-3 position was available to her at the time * numerous captain/O-3 positions were available within the 399th Combat Support Hospital at the time * a transfer to the 399th Combat Support Hospital would have been just as easily accomplished that year as it was 1 year later when she was promoted prior to being placed in an O-3 position * she has attempted to correct her DOR for the past 2 years without success or explanation as to why she could be promoted 1 year later under the same circumstances and be allowed to find an O-3 position at a nearby unit when the same premise was considered invalid the year prior 3. The applicant provides: * email correspondence with officials at the U.S. Army Human Resources Command * memorandum, dated 20 February 2012 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. Having received entry-grade credit for her attendance at nursing school, the applicant was appointed as a Reserve commissioned officer of the Army in the rank of first lieutenant and executed an oath of office on 28 December 2006. 3. A 6 May 2010 email from her nurse team career manager at U.S. Army Human Resources Command informed her of her selection for promotion to captain by the 2010 Army Medical Department (AMEDD) Captain Promotion Board. The email advised her that in order to receive promotion orders to captain, each selectee must be in a valid AMEDD captain position, have a valid security clearance, and have no outstanding personnel actions, such as failed annual physical fitness test or failure to meet Army height and weight standards. 4. U.S. Army Human Resources Command Orders B-06-004155, dated 24 June 2010, promoted her to the rank of captain in the U.S. Army Reserve effective 12 April 2010. 5. A 16 November 2010 memorandum addressed to the applicant from the U.S. Army Human Resources Command informed her that a Department of the Army special selection board convened after 23 April 2010 and recommended her for promotion to the next higher permanent grade using the criteria established for the mandatory board which met in 2009. She was informed that the earliest date of rank she could receive was 29 April 2009, the Secretary of Defense approval date of the criteria year (2009), provided she was assigned to a position in the higher grade at the time. 6. An advisory opinion was obtained from the Chief, Officer Promotion Management, U.S. Army Human Resources Command, on 27 April 2015. The advisory opinion states: * the applicant's assertion that her promotion date of rank should be adjusted is in error * she was recommended for promotion by the Fiscal Year 2010 Captain AMEDD Promotion Selection Board and received the earliest date of rank possible, which was the approval date of the board on 12 April 2010 * she requested and received consideration by a special selection board for the Fiscal Year 2009 Captain AMEDD Promotion Selection Board due to missing officer evaluation reports ending 27 December 2008 and 27 December 2007, which were not considered by the Fiscal Year 2009 board * the special selection board recommended her for promotion under the Fiscal Year 2009 criteria and she was notified of her selection on 16 November 2010 by the U.S. Army Human Resources Command Office of Promotions * she was advised that in order for her date of rank to be adjusted, she would need to provide documentation that she was in a higher grade position on an earlier date than 12 April 2010 to receive an earlier date of rank * there is no documentation in her military records and she has not provided any enabling her to be awarded an earlier date of rank 7. The applicant was provided a copy of the advisory opinion on 13 May 2015 and given an opportunity to respond, but failed to do so. 8. She provided copies of email correspondence with officials at the U.S. Army Human Resources Command regarding her date of rank as well as a memorandum from her former commander, dated 20 February 2012. The memorandum states she was assigned to an Army captain or higher nurse position for the period 30 April 2009 through 11 April 2010 while assigned to the 378th Minimal Care Detachment. Officials at the U.S. Army Human Resources Command advised her in the email correspondence that the memorandum did not suffice as acceptable documentary proof she served in a captain position, as no paragraph and line number associated with a documented captain's position were cited. Additionally, a review of her other records, to include officer evaluation reports, failed to show she served in a position of a higher rank. 9. Army Regulation 135-155 (Army National Guard and Army Reserve – Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures to consider, select, and promote commissioned officers of the Army National Guard of the United States and the U.S. Army Reserve. It states: a. A member who has been recommended for promotion to the next higher grade must meet the requirements listed below before he or she can be promoted in the Reserve Components. The individual must be in an active Reserve status, complete the service requirements listed in table 2-1 (Service Requirements), be medically qualified, have undergone a favorable security screening, meet the standards of the Army Body Composition Program, and be a satisfactory participant. b. The effective date of promotion may not precede the date of the promotion memorandum. An officer is promoted after selection if all qualifications for promotion are met. When an officer does not meet the qualifications for promotion, the effective date of promotion will not be earlier than the date the board is approved. c. For promotions to fill U.S. Army Reserve position vacancies, the effective date and date of promotion will be no earlier than the approval date of the board, the date of Senate confirmation (if required), or the date the officer is assigned to the position, whichever is later. If not occupying the position, assignment of selectees to position vacancies will take place immediately on announcement of the results of the board. d. Unit officers selected by a mandatory board will have a promotion date and effective date no earlier than the date the board is approved or the date of Senate confirmation (if required), provided they are assigned to a position in the higher grade, the effective date and the date of promotion will be the date of assignment to the higher graded positon. If the officer voluntarily delays promotion and is later assigned to a higher-graded position during the period of delay, the effective date and date of promotion become the date of assignment to the higher-graded position. 10. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for correction of her date of rank to captain from 12 April 2010 to 29 April 2009 was carefully considered. 2. She was notified on 6 May 2010 of her selection for promotion to captain by the 2010 Army AMEDD Captain Promotion Board and advised that in order to receive promotion orders to captain, she must be in a valid AMEDD captain position, have a valid security clearance, and have no outstanding personnel actions, such as failed annual physical fitness test or failure to meet Army height and weight standards. 3. Promotion orders were subsequently issued on 24 June 2010, promoting her to the rank of captain effective 12 April 2010. It is presumed the applicant met the aforementioned criteria as verified by the orders-issuing authority prior to the date the orders were issued promoting her to captain. 4. Although a special selection board subsequently convened and recommended her for promotion to captain using the criteria established for the 2009 mandatory promotion board, she was informed that she could only receive a 29 April 2009 date of rank if she could document she was assigned to a position in the higher grade at the time. 4. The applicant's military records do not corroborate and she has not provided any documents corroborating her contention that she served in a position of a higher grade prior to her current date of promotion on 12 April 2010. 5. Regulatory guidance mandates that the effective date and the date of promotion will be the date of assignment to the higher-graded position. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X___ ____X___ 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. ____________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. ABCMR Record of Proceedings (cont) AR20150004400 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004400 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1