BOARD DATE: 30 June 2016 DOCKET NUMBER: AR20150008369 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __x______ __x______ _x__ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 30 June 2016 DOCKET NUMBER: AR20150008369 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. BOARD DATE: 30 June 2016 DOCKET NUMBER: AR20150008369 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 records to show he was promoted to lieutenant colonel (LTC)/O-5 effective 2 October 2014, the date that corresponds with his date of rank (DOR). He further requests payment of all back pay and allowances resulting from this correction. 2. The applicant states he reached his maximum time in grade (TIG) as a major (MAJ) on 2 October 2014. His DOR for LTC reflects 2 October 2014. He currently serves in an Active Guard Reserve (AGR) status. He was selected for promotion by a Department of the Army (DA) LTC Promotion Selection Board and his name appeared on the promotion list that was published on 2 October 2013. He was placed in an LTC position effective 1 November 2014. His maximum TIG and DOR to LTC should not be the same, but his DOR and effective date should match. His current effective date for LTC is 12 January 2015. He believes his effective date for promotion to LTC should be 2 October 2014. He contends he has provided sufficient evidence to support his claim. 3. The applicant provides: * Excerpts from National Guard Regulation (NGR) 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions) * Excerpts from Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) * Memorandum, Subject: Notification of Promotion Status, dated 2 October 2013 * Memorandum, Subject: Involuntary Delay, dated 1 May 2014 * State of Michigan Department of Military and Veterans Affairs, Lansing, MI, Orders 294-608, dated 21 October 2014 * State of Michigan Department of Military and Veterans Affairs, Lansing, MI, Orders 022-200, dated 22 January 2015 * Departments of the Army and the Air Force, National Guard Bureau (NGB), Special Orders Number 19, dated 23 January 2015 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. Following prior enlisted service in the Michigan Army National Guard (MIARNG), the applicant was appointed as a second lieutenant in the MIARNG on 28 April 1994. 3. Orders Number 324-004, published by the State of Michigan, Department of Military and Veterans Affairs, Lansing, MI on 19 November 1996, promoted him to first lieutenant (1LT) effective 13 November 1996. The orders include a handwritten entry showing the effective date of promotion as 4 December 1996. 4. Special Orders Number 229 AR, published by NGB on 4 December 1996, extended Federal recognition to his promotion to 1LT, effective 4 December 1996. 5. His service record contains a promotion memorandum, published by NGB on 3 October 2000, which announced his promotion to captain (CPT) effective 3 October 2000. This memorandum shows his promotion eligibility date (PED); essentially, his DOR, as 12 December 2000. 6. Special Orders Number 175 AR, published by NGB on 3 October 2000, extended Federal recognition to his promotion to CPT, effective 3 October 2000. 7. Orders Number 136-032, published by the State of Michigan, Department of Military and Veterans Affairs, Lansing, MI on 15 May 2008, promoted him to major (MAJ) effective 15 May 2008. These orders show his DOR as "Not applicable"; however, a subsequent remark in the Additional Instructions indicated his DOR would coincide with the date Federal recognition was extended. 8. Special Orders Number 133 AR, published by NGB on 27 May 2008, extended Federal recognition to his promotion to MAJ, effective 27 May 2008. These orders further identified his PED as 2 October 2007. 9. Orders Number 314-030, published by the State of Michigan, Department of Military and Veterans Affairs, Lansing, MI on 10 November 2009, amended Orders Number 136-032, dated 15 May 2008, to show his effective date and DOR for his promotion to MAJ as "2 October 2007." 10. In a 2 October 2013 memorandum, the Deputy Chief of Staff Personnel, MIARNG, informed the applicant that he was selected for promotion to LTC by the Fiscal Year (FY) 2013 DA Reserve Components LTC Army Promotion List Selection Board. The official informed him: a. To be promoted, he must remain in an active status, be medically qualified for retention, meet the standards in Army Regulation 600-9 (The Army Body Composition Program), and meet the promotion eligibility criteria shown in Army Regulation 135-155. b. As an AGR officer, he must also be assigned to a duty position authorized a grade equal to or higher than the grade to which selected and he must have a controlled grade authorization approved by the MIARNG J-1. c. If, on approval of the board, he is assigned to a duty position authorized a grade equal to or higher than the grade to which selected and he has an approved controlled grade authorization, he will be promoted. The official stated the applicant's DOR and effective date of promotion would be the date of promotion. d. If, on approval of the board, he is not assigned to a duty position authorized a grade equal to or higher than the grade to which selected, or if he did not have a controlled grade authorization, his promotion would be delayed until he was so assigned or either on transfer from the AGR program to a troop unit position of the higher grade or on transfer to the Individual Ready Reserve, provided he reached or exceeded his maximum time-in-grade date. 11. He provides: a. Orders Number 294-608, published by the State of Michigan, Department of Military and Veterans Affairs, Lansing, MI on 21 October 2014, which ordered him to active duty in an AGR status and assigned him to Camp Grayling, MI. His reporting date was established as 1 November 2014 and his active duty commitment was established as from 1 October 2014 to 31 March 2020. b. Orders Number 022-200, published by the State of Michigan, Department of Military and Veterans Affairs, Lansing, MI on 22 January 2015, which promoting him to LTC effective 12 January 2015, with a DOR of 1 October 2014. c. Special Orders Number 19, published by NGB on 23 January 2015, which granted Federal recognition to his promotion to LTC effective 12 January 2015, established his PED as 1 October 2014, and established his DOR for LTC as 1 October 2014. 12. The Deputy Chief, Personnel Policy Division, NGB provided an advisory opinion on 28 December 2015 and recommended disapproval of the applicant's request. The advisory official stated: a. An email from the MIARNG states that "Due to AGR controlled grade limitations within a state's resource voucher, the promotion to LTC was not authorized until we received the attached authorization memo from the AGR office with the Chief of Staff's signature. Although his promotion recommendation memorandum was dated 15 January 2015, we made the State promotion order effective 12 January 15, to match the controlled grade authorization memo date, which is also his effective date for pay." b. Army Regulation 135-155, paragraph 4-5 states an ARNG of the United States (ARNGUS) officer extended Federal recognition in a higher grade will be appointed in the same grade as a Reserve commissioned officer of the Army by memorandum published by the Chief, NGB. Paragraph 2a of the information paper [information paper not available] also states effective date of promotion drives an officer's pay. The effective date of promotion for an ARNG commissioned officer who is promoted in the State is the date the Chief, NGB extends Federal recognition. Because there was no available controlled grades, the MIARNG could not submit a request for Federal recognition until 12 January 2015. c. Army Regulation 135-155, paragraph 4-21, states that when an officer does not meet the qualifications for promotion the effective date of promotion will not be earlier than the later date all qualifications are met. For AGR officers, a controlled grade is mandatory requirement to have prior to have prior to submitting them for Federal recognition. d. The MIARNG and ARNG Officer Policy Branch concurred with recommendation. 13. A copy of the advisory opinion was forwarded to the applicant on 4 March 2016 to allow him an opportunity to provide comments or a rebuttal. On 3 April 2016, he submitted a rebuttal to the advisory opinion and stated: a. He recommended approval of his request that the effective DOR for pay purposes also match his maximum TIG as a MAJ (7 years). He also requests the extended Federal recognition, the publication date of the DA Board results of 2 October 2013, as a possible date. b. He understands the limitation of the control grades for promotions of AGR Soldiers and he also understands that a State's control grades needs to balance out for each rank by the end of the fiscal year. He contends that the pay should be adjusted to the maximum TIG so it matches the DOR. c. He believes that acknowledgement of promotion eligibility to the next rank and extended Federal recognition is secured by being a DA board select. This would place a date for pay to 2 October 2013. He references Army Regulation 135-155, paragraph 18d that states the DOR for promotion and pay after an involuntary delay may be earlier than the date of memorandum promotion. Paragraph 3b of the MIARNG's discussion does not reference anything for support of their statement. d. Army Regulation 135-155, paragraph 4-5 states Federal recognition is received when done by a board. Paragraph 8-11c states the requirement for a Federal recognition board to be conducted is waived if unit vacancy is done in the same branch and area of concentration. e. He met the requirements for promotion and that is why he had to involuntary delay. Army Regulation 135-155, paragraph 4-21 states that when an officer does not meet the criteria of promotion the date of promotion will not be earlier than when all requirements are met. He reviewed that paragraph and claim he met all requirements. REFERENCES: 1. Army Regulation 135-155 provides policy for selecting and promoting commissioned officers of both the ARNGUS and the U.S. Army Reserve (USAR), and warrant officers of the USAR. a. Paragraph 4-5 (ARNGUS promotion) states an ARNGUS officer extended Federal recognition in a higher grade will be appointed in the same grade as a Reserve commissioned officer of the Army by memorandum published by the Chief, NGB. ARNGUS commissioned officers (other than commissioned warrant officers) who are on a promotion list resulting from a mandatory promotion board will be extended Federal recognition in the higher grade. This will be without examination by a Federal recognition board when the officer is appointed in the State in that higher grade to fill a vacancy in the ARNG. b. Paragraph 4-15c (For commissioned officers and warrant officers serving in an AGR status) states officers serving on active duty in an AGR status may be promoted to or extended Federal recognition in a higher grade provided the duty assignment/attachment of the officer requires a higher grade than that currently held by the officer. Effective date of promotion of AGR officers will be as shown in paragraph 4-21. AGR officers who have been selected for promotion and are not assigned/attached to a position calling for a higher grade will receive a delay of promotion without requesting such action. AGR officers will remain on the promotion list and serve on active duty in the AGR program until they are— (1) Removed from the promotion list under paragraph 3-18. (2) Promoted to the higher grade following assignment/attachment to an AGR position calling for the higher grade. (3) Promoted to the higher grade, if eligible, following release from active duty. c. Paragraph 4-18a states, except as provided in paragraph 4-18c below, only the Secretary of the Army is authorized to determine whether an officer was unqualified for promotion during any part of an involuntary delay of promotion. Accordingly, except as provided herein, only the Secretary of the Army may determine whether an adjustment must be made to an officer’s DOR and effective date of promotion. d. Paragraph 4-18c states the Chief, Office of Promotions (Reserve Component), U.S. Army Human Resources Command (HRC) is authorized to adjust the DOR and effective date of promotion for an officer whose promotion has been delayed. This is only if the basis for the officer’s delay of promotion is as found in paragraphs (1) through (5) below, and a determination is made that the basis for delay no longer exists. Adjustment to the officer’s DOR and effective date must be per the guidance established below. Under paragraph a above, if the basis for an officer’s delay of promotion is not as established below, the determination regarding adjustment may only be made by the Secretary of the Army. (1) Noncompliance with the height/weight standards of Army Regulation 600-9; then the DOR and effective date will be the day the officer complies with the standards. (2) Failure to pass the most recent Army Physical Fitness Test (APFT) or failure to take and pass the APFT within the period required by Army Regulation 350-1 (Army Training and Leader Development) because of the fault of the officer concerned. The DOR and effective date will be the day the officer passes the APFT. (3) Disciplinary action under Article 15 of the UCMJ; The DOR and effective date will be the day after all punishment is complete, to include the expiration of any period of suspension. (4) Any adverse administrative action (for example, memoranda of reprimand). The DOR and effective date will be the day after the date a filing of determination is made. (5) The officer’s enrollment in and successful completion of the Army Drug and Alcohol Prevention Control Program. The DOR and effective date will be the date the officer would have been promoted had there been no delay. e. Paragraph 4-18d states, for commissioned officers (other than commissioned warrant officers), the DOR and effective date of promotion following an involuntary delay may be earlier than the date of the promotion memorandum. However, it cannot be earlier than the approval date of the board that selected the officer. f. Paragraph 4-21 states that except as provided elsewhere in this regulation, 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 later date all qualifications are met. In no case, will the DOR or effective date of promotion be earlier than the date the board is approved, or, if required, the date of Senate confirmation. g. Paragraph 4-21b(2) states that unit officers selected by a mandatory promotion board will have a promotion date and an effective DOR no earlier that 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. When the board approval, or if required, Senate confirmation is before assignment to the position in the higher grade, the effective date and date of promotion will be the date of assignment to the higher graded position. 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. h. Paragraph 4-21d (Promotion of AGR officers) states AGR officers selected by a mandatory board will be promoted provided they are assigned/attached to a position in the higher grade. An AGR officer who is selected for promotion by a mandatory promotion board, but who is not assigned/attached to a position in the higher grade will be promoted on the date of assignment/attachment to a higher graded position or the day after release from AGR status. The DOR will be the date the officer attained maximum TIG or the date on which assigned/attached to a position in the higher grade, whichever is earlier. i. Paragraph 4-21e(1) states that if an officer selected by a mandatory promotion board has a maximum TIG date that is before the approval date of the board, the officer’s promotion date and effective date will be no earlier than the date of approval of the mandatory board by which recommended or the date of Senate confirmation (if required). j. Table 2-1 shows the requirements for the maximum TIG for MAJ/O-4 is 7 years. 2. National Guard Regulation 600-100, paragraph 8-11 (Federal recognition board procedures) states if a commissioned officer has been selected for promotion by a Headquarters DA board convened under mandatory selection criteria,, the State may promoted the officer under unit vacancy criteria prior to the mandatory PED. The requirement to conduct a Federal recognition board is waived if the unit vacancy promotion is in the same branch and AOC as that for which the officer received mandatory promotion selection. DISCUSSION: 1. The evidence of record shows the applicant was considered and recommended for promotion to LTC by the FY2013 DA Reserve Components LTC Army Promotion List Selection Board. 2. Special Orders Number 19, published by NGB on 23 January 2015, extended Federal recognition to his promotion to LTC effective 12 January 2015. These orders specify his DOR as 1 October 2014. 3. The applicant contends his effective date and DOR should match. 4. The evidence of record shows the applicant's effective date and DOR for promotion to MAJ is 2 October 2007. He reached his maximum TIG as MAJ on 1 October 2014. As a result, his DOR for promotion to LTC was determined to be 1 October 2014. 5. The NGB advisory opinion states that, based on the AGR controlled grade limitations, the applicant was not authorized promotion to LTC until the MIARNG received the memorandum, dated 15 January 2015, from the AGR office. The MIARNG made the state promotion order effective 12 January 2015, to match the date of the controlled grade authorization memorandum. This date is also his effective date for pay. 6. By regulation, an AGR officer who is selected for promotion by a mandatory promotion board, but who is not assigned/attached to a position in the higher grade, will be promoted on the date of assignment/attachment to a higher graded position. The DOR will be the date the officer attained maximum TIG or the date on which assigned/attached to a position in the higher grade, whichever is earlier. 7. Based on the foregoing, the applicant was promoted upon the earliest availability of a LTC AGR position and successfully meeting all the requirements. Therefore, it appears that there is no basis for adjusting his effective date of promotion to LTC from 12 January 2015 to 2 October 2014 or to pay him any back pay and allowances. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150008369 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150008369 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2