IN THE CASE OF: RUIZ NIEVES, JIM C. BOARD DATE: DOCKET NUMBER: AR20160008391 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 IN THE CASE OF: RUIZ NIEVES, JIM C. BOARD DATE: DOCKET NUMBER: AR20160008391 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 to amend the decision of the ABCMR set forth in Docket Number AR20150004281, dated 6 August 2016. ____________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: RUIZ NIEVES, JIM C. BOARD DATE: DOCKET NUMBER: AR20160008391 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 case comes before the Army Board for Correction of Military Records (ABCMR) on a remand from the U.S. Court of Federal Claims. 2. On 4 May 2016 the parties jointly requested the issues considered in Army Board for Correction of Military Records (ABCMR) Docket Number AR20150004281 be referred back to the ABCMR because: "The parties note the ABCMR did not address the issues presented in the case. Specifically the ABCMR did not consider if [the applicant] is entitled to back pay and allowances for the ABCMR's adjustment of his Date of Rank [DOR] and Date of Appointment to account for his appointment to a Second Lieutenant [2LT] in the U.S. Army Reserve….On remand the ABCMR is directed to consider [the applicant's] claims for back pay and allowances resulting from the ABCMR's adjustment of [the applicant's] rank from First Lieutenant [1LT] to [2LT]…." COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: Concomitant with the court's referral counsel submitted an 11 page brief in which he: * iterates the previous contentions and responses * describes and analyzes the legal foundations for the functions and duties of the ABCMR * cites case law that he contends requires the ABCMR to grant full relief in the event it grants any relief * notes that the applicant "received back pay as a result of his August 2014 ABCMR-directed promotion to first lieutenant" * recapitulates applicant's contentions relating to back pay from May 2012 for the time he would have served on active duty as a 2LT had it not been for the reversed disenrollment CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150004281 on 6 August 2016. 2. In the original case: a. The applicant requested – * adjustment of his DOR to 2LT to May 2012 * adjustment of his DOR to 1LT to December 2013 with back pay and allowances * consideration for promotion to captain (CPT) by a special selection board (SSB) b. The applicant stated – * his DOR to 2LT should be adjusted and his DOR to 1LT should also be adjusted with provisions for all lost pay and allowances associated with erroneous disenrollment from the Reserve Officers' Training Corps (ROTC) * he should be considered by an SSB for promotion to CPT. He was disenrolled from ROTC on 23 July 2012 due to an erroneous and unfair disenrollment board. The U.S. Army Cadet Command (USACC) directed a new board, which resulted in him being able to complete ROTC and be commissioned as an active duty 2LT in 2014. c. The applicant provided a Power of Attorney designation for his counsel. d. Counsel stated, in effect: * the applicant was denied due process associated with his 2012 ROTC disenrollment board * he was not given notice of the misconduct he was required to defend himself against at the disenrollment board * he was not given the right to make a knowing and voluntary waiver of his rights to what was a second disenrollment board that discharged him * due to the errors made by two boards, the applicant should not have been exposed to a disenrollment board or disenrolled 3. The following sequence of events was described in the original Record of Proceedings: a. While the applicant was an ROTC non-scholarship cadet, he was disenrolled for misconduct effective 23 July 2012. b. It was ultimately determined that the applicant had been improperly disenrolled and that he was a Reserve commissioned officer of the Army for an indefinite term effective upon his acceptance. The applicant executed an oath of office as a 2LT in the USAR on 10 May 2014. c. On 16 June 2014, the U.S. Army Human Resources Command published Orders 167-004-A-7060 ordering the applicant to active duty for a 6-year active duty commitment effective 21 September 2014. d. The applicant entered active duty on 21 November 2014. He attended and successfully completed the Ordnance Basic Officer Leader Course (BOLC). 4. During the processing of the original case an advisory opinion from the USACC pointed out that, although the applicant would have been commissioned as a 2LT in May 2012 but for the improper disenrollment, he would not have entered active duty at that time. a. Officers appointed via ROTC do not enter active duty until the date their orders start. Most commonly, for 2LTs this date is the start of authorized travel to BOLC. b. The applicant's original orders to BOLC reflect a report date of 26 August 2012 with travel beginning on or about 25 August 2012. 5. The USACC advisory opinion was forwarded to the applicant for his comment. In his 24 June 2015 rebuttal the applicant stated: * he agreed with USACC's recommendation that his 2LT DOR be backdated and that he receive compensation for lost time in that grade * if the Board did not agree with this decision, then the Board should contact the U.S. Army Human Resources Command (HRC) for a determination of his DOR * he did not agree with recalculating his eligibility for 1LT to August 2014 because the assumption that his active duty order would have started the clock was erroneous * HRC had already established 7 December 2013 as his promotion eligibility date to 1LT, and that was consistent with the date another ROTC cadet was promoted * contrary to the advisory opinion, he would have required 18 months, not 24 months, before becoming eligible for promotion to 1LT * there is probably a change to the regulation which now requires an additional 6 months’ time in grade to be promoted * he is providing Orders Number 357-015 showing another ROTC cadet was promoted to 1LT effective 7 January 2014 6. The ABCMR concluded a. The applicant was inaccurate when he contended that he had not been disenrolled from ROTC, he would have entered active duty as a 2LT in May 2012 with his fellow ROTC cadets, and he would have been eligible for promotion to 1LT in December 2013 and eligible for the CPT promotion board held in March 2015. b. Although he would have been appointed as a commissioned officer in the rank of 2LT in May 2012, he would not necessarily have entered active duty at the same time. Officers appointed via ROTC do not enter active duty until the date their orders start. c. HRC generally schedules newly appointed officers for BOLC in conjunction with a permanent change of station to a unit with a vacancy for their branch following completion of BOLC. Active duty normally starts on the date of authorized travel to that school. d. The applicant's original orders to BOLC reflect a report date of 26 August 2012 with travel beginning on or about 25 August 2012. It is therefore reasonable to presume this would have been his appointment date and DOR to 2LT. The ABCMR found his records should be corrected to show his active duty DOR to 2LT as 26 August 2012, not May 2012 as he suggested. e. The time in grade requirement for promotion to 1LT was extended to 2 years by the authority of the Secretary of the Army (SA). With a 2-year time in grade requirement and a 2LT DOR of 26 August 2012, the applicant would have been promoted to 1LT on 26 August 2014. The ABCMR found his records should be corrected to show promotion to 1LT with an effective date and DOR of 26 August 2014 with entitlement to back pay and allowances. f. With a DOR to 1LT of 26 August 2014, the earliest he would be eligible for promotion consideration is the 2016 CPT selection board in or around April 2016. The applicant was advised to consult the promotion board schedule posted to the HRC official website. 7. The Board recommended partial relief by correcting his record to show: * a DOR as 2LT of 26 August 2012 * promotion to 1LT with an effective date and DOR of 26 August 2014 with entitlement to back pay and allowances 8. The Board recommended denial of so much of the application that pertained to: * adjusting his DOR to 2LT to May 2012 * adjusting his DOR to 1LT to December 2013 with back pay and allowances * promotion consideration to CPT by an SSB 9. Subsequent to the original Board's decision the applicant was promoted to 1LT with a DOR and an effective date of 26 August 2014 based on the ABCMR's decision. Counsel confirms the applicant has received back pay as a result of this decision. REFERENCES: 1. Executive Order 12396 (Defense Officer Personnel Management), delegated certain functions concerning the appointment, promotion, and retirement of commissioned officers of the Armed Forces, by the authority vested in the President of the United States. The Secretary of Defense is designated to perform, without approval, ratification, or other action by the President, several functions vested in the President, including the authority vested in the President by Section 624(c) of Title 10 of the USC, to appoint officers in the grades of 1LT and CPT in the Army, Air Force, and Marine Corps or in the grades of lieutenant (junior grade) and lieutenant in the Navy. 2. Executive Order 13358, Assignment of Functions Relating to Certain Appointments, Promotions, and Commissions in the Armed Forces, dated 30 September 2004. In this Executive Order, the White House has delegated authority of the President to appoint officers in the USAR to the Secretary of Defense with no further sub-delegation authorized. On 1 July 2005, the directive was issued that all officers appointed into the USAR must be on a "scroll" approved and signed by the Secretary of Defense before an Oath of Office can be administered. 3. Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system. Promotion eligibility is determined by the Army G-1 and approved by the Secretary of the Army (SA). For centralized promotions, eligibility is based on an officer’s active DOR and time in grade. For decentralized promotions, the officer’s promotion eligibility date (PED) is also a determinant. As established by the SA under Title 10, USC, sections 573, 574, and 619, officers must meet the minimum time in grade requirements to be considered for promotion: from 2LT and 1LT the law establishes no minimum time in grade requirements for consideration for promotion; however, an officer must have at least 18 months’ time in grade to be promoted to 1LT and 2 years’ time in grade to be promoted to CPT. The time in grade requirement for promotion to 1LT has been extended to 2 years by the authority of the SA. 4. Title 10, U.S. Code, section 1552(a) (1), allows the Secretary of a military department to correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or rectify an injustice. DISCUSSION: 1. The applicant was an ROTC scholarship cadet. He was disenrolled in July 2012 and reinstated because of a faulty disenrollment process. Following the required scrolling, he took the oath of office as a 2LT in the USAR on 10 May 2014 and entered active duty 21 November 2014. 2. In the original consideration of this case, the ABCMR noted: a. The applicant was mistaken when he contended he had not been disenrolled from ROTC, he would have entered active duty as a 2LT in May 2012, and he would have been eligible for promotion to 1LT in December 2013 and eligible for the CPT promotion board held in March 2015. b. Although he would have been appointed as a commissioned officer in the rank of 2LT in May 2012, he would not have necessarily entered active duty at the same time. Officers appointed via ROTC do not enter active duty until the date their orders start. (1) Following the scrolling action by the Secretary of Defense, new officers are normally scheduled for BOLC in conjunction with a permanent change of station to a unit with an appropriate vacancy. (2) This date is generally the start of authorized travel to the BOLC. The applicant's original orders reflect a report date to BOLC of 26 August 2012 with travel beginning on or about 25 August 2012. (3) It is reasonable to presume this date would have been his appointment date and DOR to 2LT. The Board found his records should be corrected to show his active duty DOR for 2LT as 26 August 2012, not May 2012 as he suggested. (4) Promotion to 1LT now requires 24 months' time in grade. Given the above DOR he would have been promoted with a date of rank of 26 August 2014. 4. Subsequent to the 6 August 2015 ABCMR decision, HRC promoted the applicant to 1LT with a DOR and an effective date of 26 August 2014. According to his counsel, he has already received back pay and allowances as a 1LT from that date. 5. He is not authorized back pay and allowances earlier than 26 August 2014 because he was not on active duty or any other status entitling him to pay and allowances. Actually, he was not on active duty until 20 November 2014; however, 26 August 2014 is an equitable date because that matches what his 1LT DOR would have been but for the faulty disenrollment. 6. To summarize: a. In its previous decision, the ABCMR adjusted the applicant's 2LT DOR from 10 May 2014 to 26 August 2012. The purpose of this adjustment was to prevent the applicant from becoming eligible for service schools and subsequent promotions at dates later than his peers. b. It appears applicant is now attempting to use the adjustment in his 2LT DOR to argue that he is entitled to pay and benefits from 26 August 2012 onward. He makes this argument despite the fact that: (1) he was not appointed by the Defense Secretary until May 2014; and (2) he performed no duties as an officer or a Soldier between 26 August 2012 and, at the absolute earliest, 10 May 2014, which is the date the Secretary of Defense, for the first time, appointed him as an Army officer. But even this date is too early because the record indicates that he performed no duties until 26 August 2014. c. The Secretary of Defense did not appoint the applicant as a 2LT until May 2014. Thus, the earliest applicant could have been entitled to pay was May 2014, but even that assumes he was ordered to active duty at roughly the same time. The evidence of record indicates he was not ordered to active duty until September 2014. Furthermore, the applicant's argument in support of his obtaining back pay and benefits all the way back to August 2012 is, essentially, that an ROTC cadet who fulfills his ROTC college requirements and takes and passes the required Military Science courses is entitled to receive an appointment as a 2LT. He argues that the disenrollment action (subsequently overturned) improperly rescinded that entitlement. But, as of the summer of 2012, he had yet to be appointed as a 2LT. Becoming a 2LT may have seemed probable at that time, but it still was merely an expectation. It is therefore difficult to understand how the applicant can demand pay as a 2LT for a period of time in which the Secretary of Defense had yet to appoint him, for an office he had yet to assume, and for duty he had yet to perform. d. For similar reasons, equity does not require the remedy the applicant seeks. Equity would not be served and an injustice would not be overturned if the applicant were to collect pay and benefits he did not earn. e. The applicant contends the Army acted improperly by delaying his commissioning from the summer of 2012 (when he expected to graduate college and be commissioned as an officer) until May 2014. The evidence does not support this conclusion. (1) The applicant was accused of improper conduct in his capacity as an ROTC student. Two disenrollment boards found the accusations to have merit. The evidence does not support a conclusion that there was impropriety in the Army’s decision to delay the applicant's commissioning until the accusations were fully adjudicated. (2) The fact that the applicant ultimately was found not guilty of the accusations does not, in itself, cast doubt on the propriety of the Army's decision to not commission applicant until the disenrollment issue was settled. There is no indication that any ROTC officials acted fraudulently or in bad faith in this regard. The fact that the ABCMR previously provided relief in order to place the applicant on somewhat equal footing with his peers is not a persuasive reason for taking additional action to compensate an officer for duties never performed. 7. The evidence does not indicate that equity or justice require any relief beyond that which was granted to the applicant in ABCMR Docket Number AR20150004281. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont.) AR20160008391 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160008391 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2