ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 May 2019 DOCKET NUMBER: AR20170001125 APPLICANT REQUESTS: correction of her effective date of rank (DOR) to Lieutenant Colonel (LTC) to show 31 December 2013 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Lieutenant Colonel Assignment Selection Board Results memorandum, dated 2 January 2014 * Promotion Order to LTC, dated 21 January 2014 FACTS: 1. The applicant did file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. She was selected for promotion to LTC by a board, which was released in October 2013. While assigned to 2nd BDE, Southern Training Division, 75th Training Command, the command held a board for O-5 vacancies. She applied to the board in October 2013 and the in December 2013, she was selected for a position. Due to administrative processing, the orders were not published until January 2014. As a of the delay, she was not able to compete in the 2017 O-6 Board in a below-the-zone capacity. b. Her peers who were also selected for O-5 in October 2013 competed in the 2017 O-6 Board, because their DOR was effective prior to December 2013. She was selected for O-5 prior to December 2013 and the date of rank on her orders is January 2014. When her DOR was awarded, she was unconcerned, because she believed future boards would capture all DORs within that Year Group. However, when the FY17 U.S. Army Reserve Troop Program Unit O-6 board message was published, she realized her DOR put her outside the consideration, while her peers (both in the 75th at the time and in her year group) are eligible for consideration. Her DOR was outside of the limits, due to slow administrative processing, and not due to selection to promotion or position. 3. The applicant provides: a. The Announcement memorandum for the Lieutenant Colonel Assignment Selection Board Results from Headquarters, Southern Training Division, which provides the names of officers selected for positions within the designated direct reporting units, dated 2 January 2014. b. The promotion order (B-01-400294) for LTC from U.S. Army Human Resources Command, dated 21 January 2014. 4. A review of the applicant’s service records shows: a. She enlisted in the Army Reserve as a cadet on 2 September 1996. b. On 16 May 1998, she was commissioned as an officer in the Regular Army. c. She was honorably released from active duty on 15 February 2010. Her DD Form 214 shows she completed 11 years, 8 months, and 16 days of active service. d. On 16 February 2010, she was appointed as a commissioned officer in the Army Reserve in the rank/grade of Major/O-4. 5. On 24 October 2018, the Army Review Board Agency received an advisory opinion from the U.S. Army Human Resources Command, which states: a. Based on a review of her records and the information provided, they found that her request does not have merit. b. LTC Jones’, effective date and date of promotion are in accordance with AR 135-155, 4-21, b (1) or (2) respectively. Their records indicate that she was not assigned to a LTC position until 11 January 2014, which reflects her current and correct date of rank. 6. The applicant was provided with a copy of this advisory opinion to give her an opportunity to respond and/or submit a rebuttal. She did not respond. 7. By regulation, AR 135-55 (Promotion of Commissioned Officers and Warrant Officer Other Than General Officers), paragraph 4-41, b (1) and b (2), promotion to fill USAR position vacancies will be no earlier than the approval date of the board or the date the officer is assigned to the position, whichever is later. Also, 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 Senate confirmation (if required), provided they are assigned to a position in the higher grade. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. The applicant’s contentions and the advisory opinion were carefully considered. The advisory official recommended disapproval of her request as she was not in a LTC slotted position until 11 January 2014. The applicant was provided an opportunity to rebut the advisory; however, she did not respond. Based upon the preponderance of evidence, and regulatory guidance, the Board agreed there was no error or injustice in this case, and recommend denial of the requested relief. 2. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. The ABMCR may correct an officer’s date of rank (DOR)/effective date DOR when a proper appointment has already occurred. a. Title 10 USC, sections 624 and 741 provide for situations in which properly appointed officers are provided "backdated" DOR and effective dates to remedy errors or inequities affecting their promotion. The authority to remedy these errors or inequities is given to the Service Secretaries. b. DODI 1310.01 (Rank and Seniority of Commissioned Officers) provides that a Service Secretary may "adjust the DOR of an officer appointed to a higher grade if the appointment of that officer to the higher grade is delayed by unusual circumstances.” c. What constitutes "unusual circumstances" will, generally, be for the Board to determine based on the available evidence, which often includes an advisory opinion. d. There may be cases (specifically correction of constructive credit that affects original appointment grade) where relief is not possible because an appointment to a higher grade has not yet occurred. In those cases, the Board should be advised of the limits of its authority. The Board may also be advised that the applicant can submit a request for reconsideration after he or she has been appointed to a higher grade. 3. Army Regulation (AR) 135-155 (Promotion of Commissioned Officers and Warrant Officer Other Than General Officers), paragraph 4-41, b (1) and b (2), promotion to fill USAR position vacancies will be no earlier than the approval date of the board or the date the officer is assigned to the position, whichever is later. Also, unit officers selected by a mandatory board will have a promotion date and effective date no earlier than the date the board is approved of the date Senate confirmation (if required), provided they are assigned to a position in the higher grade. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170001125 4 1