ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 May 2019 DOCKET NUMBER: AR20170007487 APPLICANT REQUESTS: * a change to his date of rank (DOR) to captain (CPT) or promotion consideration to major (MAJ) by a special selection board (SSB) * expeditious processing of his application APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * two DA Forms 67-10-1 (Company Grade Plate (O1-O3; WO1 – CW2) Officer Evaluation Report FACTS: 1. The applicant did not 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. His initial orders showed his DOR to CPT as 19 July 2013. An amended order changed his DOR to CPT to 23 July 2013. He received an explanation from the U.S. Army Human Resources Command (HRC), Officer Promotions Special Actions office, which amended his DOR to CPT that stemmed from the untimely execution of Senate confirmation, due to an internal time management oversight and getting around it a few days later. Therefore, his DOR was changed. This greatly influenced 116 individuals of the year group 09 (YG09) and made them ineligible for a below the zone (BZ) promotion consideration to major by the board convening on 1 May 2017. b. This unreasonable delay of the confirmation, due to the Senate’s internal lack of control of paperwork execution, removed him from consideration. He is an YG09 and the 1 May 2017 was the YG09 BZ board. He is requesting his original DOR to CPT be honored and corrected. This would allow him the opportunity he earned for a 2017 BZ a. consideration. This “oversight” resulted in the service men and women not being taken care of. He is also requesting an expedited approval by the Board or instigation of an SSB for BZ consideration as soon as possible. c. He had no obvious way of knowing if roughly 72 hours after being promoted to CPT in 2013, this would influence his BZ consideration 4 years later. Upon preparing for the current BZ board, his S1 and he noticed the issue as they were scrubbing his officer record brief. 3. Review of the applicant’s military record shows: a. Having prior enlisted service, he was commissioned in the Regular Army, as a second lieutenant, on 4 December 2008. b. Headquarters, HRC issued orders on/for: * Number 225-08, 13 August 2013, promoting him to CPT with a DOR and effective date of 19 July 2013; the order stated Senate Confirmation was not applicable. * Number 240-013, 28 August 2013, amending Number 225-08 to show he and several other officers promotion dates to CPT were amended to 23 July 2013 c. He provides two OER’s, for the periods ending on 12 May 2016 and 9 January 2017, showing he received ratings of “Most Qualified.” 4. An advisory opinion was received from the Chief, Office of Promotion Accouchements, Board Support and Promotion Orders, HRC, on 2 November 2018. The HRC official stated: a. Based on a review of their records and the information provided, they found that the applicant’s request had no merit. The applicant affirmed on his DD Form 149 that he received notice and clarification from HRC, that several officers’ DOR’s contained an error and were corrected, that did not only affect him, but several other officers who were also notified. b. There were no provisions or exceptions in Title 10, U.S. Code or Army Regulation (AR) 600-8-29 (Personnel – General Officer Promotions), which supports or authorizes an SSB for officers deemed to be BZ for consideration on any promotion selection board. The correction of the error found is not a violation of law nor is it a material error. 5. The applicant was provided with a copy of this advisory opinion for acknowledgement and/or rebuttal. He did not respond. 6. By regulation (AR 600-8-29), officers promoted to a higher grade will be the promotion date and effective date designated in the order announcing the promotion. 1. SSB consideration is allowed upon discovery of a material error in the file after a nonselection for promotion. AN SSB is not authorized for below the zone promotion consideration. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the advisory opinion’s finding that the applicant’s application had no merit and the applicant failed to provide a rebuttal to those findings, the Board found there to be insufficient evidence of an error or injustice which would warrant making a change to the date or rank of the applicant or having his record reviewed before an SSB. 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. 6/4/2019 X CHAIRPERSON Signed by: 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 policies and procedures governing promotion of Army commissioned and warrant officers on the active duty list. The regulation states in: a. Paragraph 1-7 (Order of Promotion) – commissioned officers are promoted from promotion lists in order of seniority (shown by the promotion sequence number) as additional officers are needed within each competitive category, officers on the active duty list. b. Paragraph 1-36 (Promotion to CPT of fully-qualified officers) – when the needs of Army require, the Secretary of the Army may recommend the promotion of all first lieutenants in the promotion zone who are fully qualified for promotion to CPT using an all qualified officers list in lieu of convening a promotion selection board. c. Paragraph 1–40 (Determining active date of rank (ADOR) for commissioned officers) the ADOR of an officer who is promoted to a higher grade will be the date designated in the order announcing the promotion. d. Paragraph 7–11 (Rules for processing requests for special selection board promotion reconsideration) – officers who discover that material error existed in their file at the time they were nonselected for promotion may request reconsideration.