DEPARTMENT OF THE ARMY ARMY REVIEW BOARDS AGENCY 251 18TH STREET SOUTH, SUITE 385 ARLINGTON, VA 22202-3531 SAMR-RBA 23 January 2020 MEMORANDUM FOR Army National Guard Readiness Center, Appeals and Analysis (ARNG-HRH-A), 111 South George Mason Drive Building 2, Arlington, VA 22204-1382 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for , AR20170006691 1. Under the authority of Title 10, United States Code, section 1552, the recommendation of the Army Board for Correction of Military Records is denial. However, after reviewing the findings, conclusions, and Board member recommendations, I find there is sufficient justification to grant full relief. All Department of the Army records of the individual concerned shall be corrected by DOR for promotion to 2LT adjusted to 16 August 2013, in addition DOR and effective date to 1LT be adjusted to 16 February 2015, and payment of any resulting back pay and allowances. 2. Request necessary administrative action be taken to effect the correction of records as indicated no later than 21 May 2020. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: X Encl CF: ( ) OMPF ( ) DFAS Printed on Recycled Paper ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 22 May 2019 DOCKET NUMBER: AR20170006691 APPLICANT REQUESTS: In effect, correction of his date of rank (DOR) for appointment to Second Lieutenant (2LT)/O-1 and consequently, adjustment of his effective date for promotion to First Lieutenant (1LT)/O-2. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 597 (Army Senior Reserve Officer’s Training Corps (ROTC) Nonscholarship Cadet Contract), dated 1 February 2012 * National Guard Bureau (NGB) Form 337 (Oath of Office) * DA Form 71 (Oath of Office – Military Personnel) * DA Form 1A (Appointing Certificate) * Orders Number 228-001, dated 16 August 2013 * Memorandum for applicant, Subject: Appointment as a Reserve Commissioned Officer of the Army, dated 16 August 2013 * DA Form 1059 (Service School Academic Evaluation Report) * DD Form 214 (Certificate of Release or Discharge from Active Duty) for period ending 21 May 2014 * Email from Unit Administrative NCO on 9 September 2015 * Initial Enlistment Contracts and Documents * DD Form 4/1 and ROTC Contracts * iPerms Records FACTS: 1. Title 10, U.S. Code (USC), 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. 2. The applicant states, in pertinent part, that he is requesting correction of his Basic Date of Appointment and his DOR for promotion to 2LT from 9 October 2015 to 16 August 2013. He knows the date of his oath of office and commissioning dates to be incorrect because they were later changed in order for his Federal Recognition (FEDREC) to be processed, which was resubmitted 2 years after he was commissioned due to his FEDREC packet never being received/processed. 3. The applicant provides: * ROTC Nonscholarship Cadet Contract signed on 1 February 2012, which shows his completion date on or about 15 May 2013 and all terms of enlistment and obligations * Oaths of Office documents signed by the applicant and the university’s Professor of Military Science (PMS) on 16 August 2013 * DD Form 1A dated 16 August 2013, which appoints the applicant as a 2LT in the U.S. Army signed on behalf of the President of the United States by the Secretary of the Army * Orders Number 228-001 issued by Texas A&M University, Department of the Army, with the applicant’s name included among the individuals discharged from the U.S. Army Reserve (USAR) to accept commission, effective 16 August 2013 * memorandum appointing him as a Reserve Commissioned Officer, with a date of acceptance on 16 August 2013 * DA Form 1059 for completion of the Quartermaster (QM) Basic Officer’s Leader Course on 21 May 2014 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending on 21 May 2014 which shows in item 4a (Grade, Rate or Rank) “2LT” * Email from the Texas Army National Guard (TXARNG) ROTC on 9 September 2015 notifying the applicant there was an issue with the processing of his commissioning packet, and further stating * in the email, the administrative NCO further states the NGB could not accept the commissioning packet from two years ago and could not give the applicant FEDREC as a 2LT * the email further indicated a new DA 71 date was to be signed with the date of 9 September 2015 4. A review of the applicant’s service records shows the following on: * 1 February 2012 – enlisted in the U.S. Army ROTC/ Simultaneous Membership Program (SMP) * in connection with his enlistment, a DA Form 597 (Army Senior ROTC Nonscholarship Cadet Contract) was executed wherein he indicated his date of completion to be on or about 15 May 2013 * the applicant signed in Part IIK and the PMS signed in Part V * 15 August 2013 – honorably discharged from the ARNG to accept appointment as a commissioned officer and released from ROTC * 16 August 2013 – accepted commission as 2LT/O-1 in TXARNG in the QM Branch * 19 May 2014 – reduced in grade from Cadet E-5 to Private First Class/ E-3 * 8 October 2015 – honorably discharged from ARNG to accept appointment as commissioned officer * 9 October 2015 – reappointed as 2LT/ O-1 * 9 April 2017 – promoted to the rank of 1LT/ O-2 5. On 21 March 2019, the NGB reviewed the applicant’s records and rendered an advisory opinion for his case. After a thorough review, the Chief, Special Actions Branch opined that, the applicant fulfilled the necessary requirements to be appointed to 2LT in a timely manner, but due to administrative errors and no fault of his own, this did not occur. Therefore, it was his recommendation that the applicant’s request be approved; his DOR for promotion to 2LT adjusted to 16 August 2013, in addition to his DOR and effective date to 1LT be adjusted to 16 February 2015, and payment of any resulting back pay and allowances. A copy of the complete advisory opinion has been provided to the Board for their review and consideration. 6. On 15 April 2019, the applicant was provided a copy of the above advisory and given the opportunity to submit additional comments. The applicant has not provided any additional comments. 7. Army Regulation (AR) 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system. Table 3-1 (Rules for 2LT DOR and 1LT Promotion Eligibility), Rule 4 states for an officer who receives a direct commission his/her DOR is the date of original appointment. eligibility date for promotion to 1LT is the earlier date between 18 months of active Federal commissioned service or the day prior to the 2nd anniversary of the 2LT DOR. 8. Title 10 U.S. Code (USC), Section 741 states the Secretary concerned may adjust the DOR of an officer appointed under section 624(a) 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: • the processing or approval of the report of the selection board recommending the appointment of that officer to that grade; or • the processing or approval of the promotion list established on the basis of that report 9. National Guard Regulation (NGR) 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions) provides procedures for processing all applications for Federal recognition, waivers, and revises the list of documents required for appointment. Chapter 2-2b (Policy) states the effective date of Federal recognition for original appointment is that date on which the commissioned officer executes the oath of office in the State. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. Notwithstanding the NGB advisory opinion, there is no evidence he met all requirements as his record does not show he completed a 4 year degree. As a result, the Board found insufficient evidence to show an error or injustice which would warrant changing the date of rank of the applicant. 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. 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. 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. Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system. Table 3-1 (Rules for 2LT DOR and 1LT Promotion Eligibility), Rule 4 states for an officer who receives a direct commission his/her DOR is the date of original appointment. The eligibility date for promotion to 1LT is the earlier date between 18 months of active Federal commissioned service or the day prior to the 2nd anniversary of the 2LT DOR. 3. Title 10 USC, Section 741 states the Secretary concerned may adjust the DOR of an officer appointed under section 624(a) 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: • the processing or approval of the report of the selection board recommending the appointment of that officer to that grade; or • the processing or approval of the promotion list established on the basis of that report 4. NGR 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions) provides procedures for processing all applications for Federal recognition, waivers, and revises the list of documents required for appointment. Chapter 2-2 (Policy) states: a. The appointment of officers in the ARNG is a function of the State concerned, as distinguished from the Federal recognition of such appointment. Upon appointment in the ARNG of a State and subscribing to an oath of office, an individual has a State status under which to function. Such individuals acquire a Federal status when they are federally recognized and appointed as a Reserve of the Army. b. The effective date of Federal recognition for original appointment is that date on which the commissioned officer executes the oath of office in the State.