IN THE CASE OF: BOARD DATE: 14 January 2020 DOCKET NUMBER: AR20170003578 APPLICANT REQUESTS: Correction of his record to show: * promotion to the rank/grade of lieutenant colonel (LTC)/O-5 with an effective date of 31 January 2015 and a Date of Rank (DOR) of 22 December 2011 * a personal hearing before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Memorandum, Subject: Eligibility for Active Guard/Reserve (AGR) Promotion as a Commissioned Officer, dated 15 March 2011 * Memorandum, Subject: Adjudicate Promotion to LTC for the applicant, dated 2 May 2016 * Orders Number 125-1010, dated 4 May 2016 * Orders number 001-005, dated 1 January 2012 * Orders number 067-008, dated 7 March 2012 * DA Form 705 (Army Physical Fitness Test Scorecard) * Orders Number 001-065, dated 1 January 2015 * DA Form 5500 (Body Fat Content Worksheet (Male)), dated 24 November 2015 * Standard Form (SF) 513 (Consultation Sheet), dated 10 December 2015 * Memorandum, Subject: Verification of Security Clearance, dated 4 January 2016 * DD Form 215 (Correction to DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 2 May 2016 * Memorandum, Subject: Guidance for Processing Army Review Boards Agency Actions for Army National Guard Members (PPOM Number 16-019), dated 14 July 2016 * Email correspondence * Memorandum, Subject: Correction to Promotion Oversight for the applicant, dated 23 February 2017 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the ABCMR 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 in pertinent part: a. He met all requirements for promotion to LTC on 31 January 2015, but due to an administrative oversight, a promotion request was not submitted by the Pennsylvania Army National Guard (PAARNG). He was Department of the Army (DA) select on the Fiscal Year (FY) 2011 Chaplain LTC Board with a board approval date of 18 February 2011. Due to the constraints of field grade AGR controlled grades, he was unable to be promoted to LTC prior to his separation from the AGR program. On 30 January 2015, he separated from the AGR program and was eligible for promotion to LTC on 31 January 2015. b. Per Army Regulation (AR) 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers), chapter 4-21 (5)d, an AGR officer who is selected for promotion by a mandatory promotion board, but who is not in the higher grade will be promoted on the date after release from AGR status. The DOR will be the date the officer attained maximum time in grade or the date on which assigned/attached to a position in the higher grade, whichever is earlier. In his case, his effective date should then be 31 January 2015, the date after his release from AGR status and his DOR/promotion eligibility date should be 22 December 2011, the day he attained maximum time in grade. Per the enclosed memorandum from PAARNG Joint Forces Headquarters G1, he was not promoted as entitled under these provisions due to an administrative oversight and due to no fault of his own. 3. A review of the applicant’s official records show the following on: a. On 25 July 1992, the applicant was appointed as a Reserve commissioned officer in the PAARNG and executed an oath of office. b. On 23 December 2004, by memorandum, the applicant was promoted to the rank/grade of major (MAJ)/O-4. c. On 19 March 2009, Orders Number 078-010, issued by the Adjutant General, ordered the applicant to full time National Guard duty in an AGR status. Orders continued him on an indefinite AGR status. d. On 15 March 2011, by memorandum, the applicant was notified he was selected for promotion by the DA Reserve Components LTC Chaplain mandatory board. He was informed AGR officers were not required to sign a delay of promotion. If he was not currently authorized promotion, he would remain on the promotion list and serve on active duty in the AGR program until one of the following actions occur; 1) be removed from the promotion list under AR 135-155, paragraph 3-18; or, 2) be promoted to the higher grade. Selections for all controlled grades for field grade officer promotions would be via the PAARNG AGR control grade board. e. On 31 January 2015, the applicant was honorably released from active duty and returned to his ARNG unit. Item 4a (Grade, Rate or Rank) shows the rank of MAJ. 4. The applicant provides: * Memorandum, Subject: Adjudicate Promotion to LTC wherein a PAARNG G1 official states in pertinent part, the applicant met all requirements for promotion to LTC on 31 January 2015, but due to an administrative oversight, a promotion request was not submitted * Orders Number 125-1010, issued by the Adjutant General, promoting the applicant to the rank of LTC effective 31 January 2015 and a DOR of 22 December 2011 * Orders Number 001-005, issued by the Adjutant General, ordered the applicant to full time National Guard duty in an SGR status * Orders Number 067-008, issued by the Adjutant General, continued the applicant in an AGR status * Orders Number 001-065, issued by the Adjutant General, amended Orders Number 067-008 insomuch as changing the applicant’s active duty commitment to 30 January 2015 * DD Form 215 amended the applicant’s DD Form 214 to show his separation date as 30 January 2015 * Memorandum, Subject: Guidance for Processing Army Review Boards Agency Actions for Army National Guard Members (PPOM Number 16-019) providing guidance for ARNG correction of records after being adjudicated by the Board * Email correspondence showing the applicant exhausted administrative avenues for correction of his records * Memorandum, Subject: Correction to Promotion Oversight for the applicant wherein a PAARNG G1 official states in pertinent part, evidence shows the applicant was fully qualified for promotion to LTC on the date he separated from the AGR program 5. On 11 December 2019, the National Guard Bureau (NGB) reviewed the applicant's records and rendered an advisory opinion in his case. After a thorough review, the Chief, Special Actions Branch opined that: a. The NGB federal recognition office believes the applicant should be considered an M-Day Soldier since he left the AGR program prior to promotion. However, the applicant was selected for promotion in FY11 and was delayed promotion due to a lack of control grade. Per PPOM number 18-003, DA Soldiers who are involuntarily delayed will have the DOR that they are assigned to the position of higher grade or the maximum time in grade… whichever is earlier. Since he was serving in that position but not granted the control grade he should be granted his mandatory time in grade as his new DOR. b. It is the recommendation of their office the applicant’s request for promotion to LTC be partially granted. His new DOR is recommended for 3 January 2012 which is the date the FY11 LTC APL was approved, with an effective date of 31 January 2015 which is the date after he was released from the AGR program. The applicant’s request for a DOR of 22 December 2011 cannot be recommended because the date cannot be earlier than approval date of the board. The NGB federal recognition office and the PAARMG concurred with the recommendation. A copy of the complete advisory opinion has been provided to the Board for their review and consideration. 6. On 9 January 2019, the applicant responded by email to the advisory opinion, in which he concurred. 7. AR 135-155 in effect at the time states in: a. Paragraph 4-21 (Effective Dates) the effective date of promotion may not precede the date of the promotion memorandum. 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. b. Paragraph 4-21(b)2 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. c. Paragraph 4-21(5)d 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. 8. AR 15-185 (ABCMR) states an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service, his AGR status, his selection for LTC and his current effective date and DOR to LTC. The Board considered the review, conclusions and recommendations of the NGB advising official and the applicant’s response. Based on a preponderance of evidence, the Board determined that a correction of the applicant’s DOR was appropriate. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. After reviewing the application and all supporting documents, the Board found that relief was warranted. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant’s DOR for LTC to reflect 3 January 2012. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to relief in excess of that reflected above or a personal appearance. 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. ? REFERENCES: 1. Title 10, United States 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 ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. AR 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) in effect at the time states in: a. Paragraph 4-21 (Effective Dates) the effective date of promotion may not precede the date of the promotion memorandum. In no case, will the date of rank or effective date of promotion be earlier than the date the board is approved, or, if required, the date of Senate confirmation. b. Paragraph 4-21(b)2 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. c. Paragraph 4-21(5)d 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. 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170003578 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1