BOARD DATE: 28 November 2017 DOCKET NUMBER: AR20160014824 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 BOARD DATE: 28 November 2017 DOCKET NUMBER: AR20160014824 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: * amending his first lieutenant date of rank to 28 November 2015 * updating his personnel and financial electronic records to show the date 19 May 2014 as his entry on active duty current tour date ____________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: 28 November 2017 DOCKET NUMBER: AR20160014824 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 his date of rank (DOR) and effective DOR to first lieutenant (1LT) as 28 November 2015 vice 28 January 2016. Secondly, he requests correction to his entry active duty current tour on his ORB. 2. The applicant states his initial entry onto active duty service needs to be corrected (presumably within his personnel and finance records). He should have been promoted to 1LT in November 2015 because he entered active duty service on 19 May 2014. He was told by an official at the U.S. Army Human Resources Command (HRC) that an administrative error existed in his record. 3. The applicant provides: * Orders 107-089-A-6403, dated 17 April 2014 * Orders 133-007, dated 13 May 2014 * Order Number 136-07, dated 16 May 2014 * DA Form 61 (Oath of Office – Military Personnel), effective 16 May 2014 * appointment as a Reserve Commissioned Officer memorandum, dated 16 May 2014 * DA Form 1A (Officer Promotion Certificate) * Officer Record Brief (ORB) * HRC email, dated 4 November 2015 CONSIDERATION OF EVIDENCE: 1. On 7 September 2011, the applicant enlisted in the U.S. Army Reserve (USAR) as a cadet and enrolled in the Reserve Officers' Training Corps (ROTC) at Colorado State University, Fort Collins, CO. 2. Order Number 136-07 issued by the Department of Military Science, Colorado State University, discharged him on 16 May 2014 from the USAR Control Group (ROTC) to accept a commission in the Armed Forces. 3. On that same day, he was appointed as a second lieutenant (2LT) Reserve commissioned officer in the Transportation Corps and he signed an oath of office. 4. Orders 107-089-A-6403 issued by the U.S. Army Cadet Command, ordered him to active duty as a Reserve officer in the rank of 2LT to fulfill his active duty service obligation, with temporary duty at Fort Lee, VA. His active duty entry date was 21 September 2014. 5. Orders 133-007, issued by the U.S. Army Cadet Command, amended his previous order and ordered him to active duty effective 19 May 2014, as a Reserve officer in the rank of 2LT to perform duties as a Gold Bar Recruiter at Colorado State University. 6. On 21 September 2014, he was appointed as a 2LT in the Regular Army (RA) in the Transportation Corps. He signed a second oath of office on that date. 7. Order Number 041-002, dated 10 February 2016, issued by HRC, promoted him to 1LT with a DOR and effective DOR of 28 January 2016. 8. The applicant's Officer Record Brief (ORB) dated 23 September 2015 shows his basic active service date as 19 May 2014 and his date entered active duty current tour as 17 September 2014. 9. The applicant provided a sequence of emails between himself and a representative of HRC, Board Support Specialist concerning his promotion to 1LT. a. On 3 November 2015, the applicant emailed HRC and requested a status on his promotion to 1LT. He stated he commissioned on 17 May 2014 and entered active duty on 19 May 2014. He reported to Basic Officers Leader Course on 27 September 2014. He stated that 18 months from his entry onto active duty was 19 November 2015 which he believed should be his 1LT promotion date. He stated he was not on the November 2015 1LT promotion list. b. The HRC specialist stated the applicant's information in the database was incorrect. She informed the applicant his promotion eligibility date was 28 November 2015. However, HRC could not promote him until December because they were waiting for the promotion scroll approval (from Department of Defense). She stated once the scroll was received, HRC could publish promotion orders. c. The applicant inquired into how it would affect his pay and if he would get back pay based on the date he believed he was eligible for promotion to 1LT. d. In response, the HRC official restated that the applicant's orders would not be completed until the scroll was approved. Scroll approvals could take from 90 to 120 days to be received at HRC. She explained to the applicant that a scroll is an appointment or nomination to the next higher grade that the President of the United States must approve before an officer is promoted. A scroll is done to comply with the law (Title 10, U.S. Code, section 571(b)) and all officers must be scrolled before they can be pinned. 10. In the processing of this case an advisory opinion was received on 17 March 2017 from the Chief, Officer Promotions, HRC. The advisory official opined: a. Based on a review of their records, data systems, Title 10, U.S Code; Army Regulation (AR) 600-8-29 (Officer Promotions), and the information provided, they found the applicant's request to adjust his DOR to 1LT did have merit. AR 600-8-29, Table 3-1, affirms that in his case, he should have been promoted to 1LT with a DOR and effective date of 28 November 2015 (established based on the United States Military Academy (USMA) graduation date as he is a Regular Army officer). b. The Secretary of Defense recently approved the precedence-setting adjustment of 78 officers' DORs and effective dates for pay to the earliest allowable date pursuant to Title 10, U.S. Code based under an "unusual delay" as reviewed by the Department of the Army Office of the Judge Advocate General and the Department of the Army Office of the General Counsel with no legal objections. c. The applicant was not denied appointment to 1LT, therefore they recommended that he be granted full relief and his DOR and effective date be retroactive to his promotion eligibility date of 28 November 2015 pursuant to Title 10, U.S. Code, section 741 (Rank Commissioned Officer) based under an "unusual delay" as it should apply (unless proven otherwise ineligible). 11. The applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond. REFERENCES: 1. AR 600-8-29 prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the active duty list (ADL). Chapter 3 (Managing Promotions to 1LT and Chief Warrant Officer Two) states: a. paragraph 3-1 (Rules for computing promotion eligibility date to 1LT) the promotion eligibility date will be computed according to the rules given in Table 3-1. The following dates will be the promotion eligibility date to 1LT: * 18 months of active duty (AD) service as a 2LT on the ADL * if the officer's source of commission is ROTC, AD service commences on the year, month, and day the officer enters AD based on the computation of travel per the Joint Federal Travel Regulation * an exception to this will be an ROTC graduate who is appointed and enters AD in the month of May or June of the same year; his promotion eligibility date will be 18 months from the USMA graduation of the year the officer entered AD b. Table 3-1, Rule 1, shows for an ROTC graduate whose original date of appointment is May or June and the date entered on AD is May or June of the year appointed: * the 2LT DOR is the USMA main graduation date * promotion eligibility date to 1LT is 18 months from USMA main graduation date c. paragraph 3-7 and 3-8 provide the steps for processing 2LT and warrant officer one for promotions which are generally automatic. The instructions state the installation officer promotion branch will validate dates including promotion eligibility dates based on regulatory guidance and as prescribed by law. (Inherent in this process, is the officer's awareness of his or her own promotion eligibility date within their electronic record, such as the ORB.) 2. Department of Defense Instruction (DoDI) Number 1320.04 (Military Officer Actions Requiring Presidential, Secretary of Defense, or Under Secretary of Defense for Personnel and Readiness Approval or Senate Confirmation) prescribes the procedures for the submission of military officer personnel actions for grade O-10 and below. a. Enclosure 3 (Overall Guidance) provides overarching guidance for all actions involving personnel for grades WO-1 through O-10 including promotions requiring Presidential, Secretary of Defense or Under Secretary for Defense (Personnel and Readiness) approval or Senate confirmation. Military officer personnel actions requiring Presidential approval or Senate confirmation will be treated as Presidential correspondence. Promotion lists submitted by a Secretary of a Military Department will include certification that the officers submitted for promotion meet the exemplary conduct provisions of Title 10, U.S. Code, sections 3583, 5947, and 8583 b. Enclosure 9 (Scrolls) provides scroll procedures for pay grades O-6 and below. Each Military Department will provide original scrolls for the Secretary of Defense and President's signature in appointment and nomination packages. 3. Title 10, U.S. Code, section 624 (Promotions: how made) states in section 624(b) officers to be promoted to the grade of first lieutenant or lieutenant (junior grade) shall be promoted in accordance with regulations prescribed by the Secretary concerned. Further, the Secretary of a military department may make a recommendation to the President for approval of all fully qualified officers only when the Secretary determines that all officers on the list are needed in the next higher grade to accomplish mission objectives. The date of rank of an officer promoted under this section is determined under section 741(d) of this title. 4. Title 10, U.S. Code, section 741 (Rank: Commissioned Officers of the Armed Forces) states in sub-paragraph d(4): a. The Secretary concerned may adjust the date of rank of an officer appointed under section 624(a) [report of a selection board is approved by the President] of this title to a higher grade that is not a general officer or flag officer grade if the appointment of that officer to that grade is delayed from the date on which (as determined by the Secretary) it would otherwise have been made by reason of unusual circumstances (as determined by the Secretary) that cause an unintended delay in (i) the processing or approval of the report of the selection board recommending the appointment of that officer to that grade; or (ii) the processing or approval of the promotion list established on the basis of that report. b. The adjusted DOR applicable to the grade of an officer under subparagraph (A) shall be consistent (i) with the officer’s position on the promotion list for that grade and competitive category when additional officers in that grade and competitive category were needed; and (ii) with compliance with the applicable authorized strengths for officers in that grade and competitive category. 5. A memorandum, dated 10 February 2015, from the Under Secretary of Defense states that an opinion of the United States Court of Appeals for the Federal Circuit, issued 8 January 2015, affirms an important limitation on the authority of Military Department correction boards: they do not have the authority to appoint military officers. This decision affirms that Military Department correction boards do not have the authority to remedy perceived errors or injustices by correcting records to show that an officer has been appointed to a certain grade when the officer has not been appointed to that grade by the President or the Secretary of Defense. Boards may only make such a correction to reflect that a proper appointment has occurred. They may also adjust the DOR of an officer who has been properly appointed. DISCUSSION: 1. The effective date of promotion is established by law then implemented by Department of Defense and Army regulations. The approval authority for promoting officers to the rank and grade of 1LT is the Secretary of Defense. 2. The applicant was commissioned as a Reserve officer on 16 May 2014, and entered active duty on 19 May 2014. He was appointed a Regular Army commissioned officer on 21 September 2014. He met the time in grade requirements and appears to have been fully eligible for promotion to 1LT on 28 November 2015, based on the date of the USMA graduation for his year group. Upon reviewing the applicant’s 23 September 2015 ORB, it appears his entry on active duty current tour date is incorrect because his orders were amended and he entered active duty on 19 May 2014 not 17September 2014 as shown on his 2015 ORB. 3. Orders confirm the President of the United States or the Secretary of Defense approved the applicant's promotion to 1LT with a DOR and effective DOR of 28 January 2016. 4. Based on an opinion from the United States Court of Appeals for the Federal Circuit, Military Department corrections boards do not have the authority to appoint an officer to the next higher grade when the officer had not been appointed by the President or the Secretary of Defense. This is the scrolling process. Thus, the applicant's effective DOR must be 28 January 2016. 5. There is a provision of law that allows the Secretary concerned acting through the corrections board to adjust a date of rank of an officer to their date of eligibility provided all other requirements of law are met, specifically no derogatory information or flagging action existed at the time of their date of eligibility. As it appears no derogatory information was noted in the applicant’s record, an adjustment of his date of rank to his original date of eligibility of 28 November 2015 may be appropriate. 6. Notwithstanding the HRC advisory opinion concerning granting the applicant’s request due to an "unusual delay," in processing his promotion personnel action, this corrections board may only adjust a DOR to the earliest date of eligibility. The United States Court of Appeals for the Federal Circuit opined corrections boards do not have the authority to change an effective date of promotion to any date prior to the President's or Secretary of Defense's approval. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160014824 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160014824 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2