ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 July 2020 DOCKET NUMBER: AR20170009537 APPLICANT REQUESTS: * correct his date of rank (DOR) to First Lieutenant (1LT) * personal appearance before the Board APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Oath of Office * Bachelor of Science degree certificate * Basic Officer Leaders Course (BOLC) Certificate * Transfer Orders 2015 * Request for Extension of Promotion * Official Transcript * Transfer Orders 2015 * Physical Profile August 2016 * Physical Profile September 2016 * Promotion Order February 2017 FACTS: 1. The applicant states: a. He was commissioned as a Second Lieutenant (2LT) on 17 May 2014 in the Army National Guard (ARNG). He was not promoted to 1LT on the date he became eligible for promotion consideration on 17 November 2015. b. The error was likely caused due to him not having an Army Physical Fitness Test (APFT) within in 365 days of his promotion eligibility. He had ruptured his ACL within that 365 day window in November of the same year rendering him unable to take the APFT. c. A request to extend promotion consideration to 24 months was submitted in April 2016. No promotion occurred likely because he was dropped from any potential scrolls due to a pending transfer from the ARNG to the US Army Reserve (USAR) which triggers a withdrawal of Federal Recognition for the losing component. d. The transfer was complete on 2 July 2016. The applicant inquired directly to US Army Human Resources Command (HRC) in December of 2016 while still on a medical profile with no APFT on record. e. He was subsequently assigned to a scroll and approved for promotion with and effective date of 23 January 2017. An APFT on record appeared to be irrelevant in processing this action. Based on the ARNG extension request, the medical profile, the federal recognition, and completion of BOLC, and a completion of a Bachelor's degree he believes his promotion to 1LT was delayed by no fault of his own and requests the effective date of rank to 1LT be changed to 17 November 2015. 2. The applicant's available service records contain the following documents for the Board's consideration: a. Orders 126-003 published by Fifth Regiment Armory, dated 6 May 2015, which show the applicant was appointed in the ARNG as a 2LT effective 27 April 2015. b. An NGB Form 337 (Oaths of Office), which shows the applicant took the oath of office as a 2LT in the Maryland ARNG on 27 April 2015. c. Orders 187-071, published by the Maryland ARNG, dated 5 July 2016, separating the applicant from the ARNG and transferring him into the USAR as a 2LT effective 2 July 2016. d. An NGB Form 22 (National Guard Report of Separation and Record of Service), which shows the applicant entered the ARNG on 7 March 2012 and was released on 2 July 2016. He was released in the rank of 2LT and transferred to the USAR. He had served 4 years, 3 months, and 26 days in the ARNG. e. Special Orders 139, published by National Guard Bureau (NGB), dated 14 July 2016, which show the applicant's federal recognition for his transfer to the USAR effective 2 July 2016. f. Orders B-02-700882, published by HRC, dated 21 February 2017 promoting him to the rank of 1LT effective 23 January 2017 with a DOR of 21 February 2017. 3. The applicant provides the following documents for the Board's consideration: a. A DA Form 71 (Oath of Office - Military Personnel), which shows the applicant was commissioned as a Reserve Officer in the rank of 2LT on 17 May 2014. b. A letter for LeMoyne Registrar's Office, dated 30 April 2014 stating the applicant would receive his Bachelor of Science degree in Business Administration on 18 May 2014. c. A DA Form 1059 (Service School Academic Evaluation Report), dated 23 January 2015, which shows the applicant completed BOLC. d. Special Orders Number 110, published by NGB, dated 3 June 2015, which shows the applicant's federal recognition as a 2LT effective 27 April 2015. e. A memorandum from Headquarters, 1-175th Infantry (Fifth Maryland), dated 1 April 2016 requesting an Extension of Promotion Consideration for the applicant stating the applicant had not taken an APFT due to knee surgery. They requested an extension of promotion consideration for 24 months. f. An official college transcript from LeMoyne issued on 27 May 2016, which shows the classes the applicant took while in college and that he was awarded a Bachelor's of Science degree in May 2014. g. Special Orders Number 139, published by NGB, dated 14 July 2016, which show the applicant's federal recognition for his transfer to the USAR effective 2 July 2016. h. A DA Form 3349 (Physical Profile), dated 25 May 2016, which shows the applicant had a temporary profile due to a knee injury, which expired on 23 August 2016. i. A DA Form 3349, dated 12 September 2016, which shows the applicant had a temporary profile due to knee pain/injury. The profile did not list an expiration date. j. Orders B-02-700882, published by HRC, dated 21 February 2017, promoting the applicant to 1LT, which were present in the applicant's service records. 4. The Maryland ARNG submitted a memorandum to the Board, dated 30 March 2020, wherein they recommended administrative relief for the applicant's request to have his DOR to 1LT adjusted. The applicant reached 18 months time in grade on 17 November 2015. He did not have a current APFT due to a ruptured ACL and subsequent knee surgery. He did not have a failed APFT. According to Army Regulation 135-155, officers having a valid permanent or temporary medical profile that precludes administration of the APFT are deemed to have not taken the APFT through no fault of their own. The effective date of promotion for the applicant should have been 17 November 2015. 5. In the processing of this case, an advisory opinion was obtained on 6 April 2020, from the Chief, Special Actions Branch, NGB. The advisory official recommended approval of the applicant's request. In accordance with PPOM #13-006 paragraph 5, the state must consider all 2LTs for promotion and complete an NGB Form 78 at least 18 months whether or not the 2LT is qualified and recommended for promotion. If a 2LT is not recommended for promotion at 18 months, the commander must submit an NGB Form 78 with a request for separation or a request for the Adjutant General to grant an extension to 24 month. If the officer was retained but not promoted at 18 months, the unit commander must submit another NGB Form 78 at 24 months. If the officer is still not recommended for promotion at 24 months, the unit commander must forward a completed NGB Form 78 with a request for separation or a request for extension through the State G1 for NGB approval to 36 months. There is no indication the state submitted an NGB Form 78 at the 18 month mark. The applicant did not have a failed APFT. The effective date of promotion to 1LT for the applicant should have been 17 November 2015. A copy of the complete advisory opinion has been provided to the Board for their review and consideration. 5. The applicant was provided a copy of this advisory opinion on 6 April 2020, to provide him an opportunity to comment and/or submit a rebuttal. He did not respond. 6. Army Regulation 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. 7. See applicable references below. 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, the date of his DA Form 71 (Oath of Office), his completion of BOLC, his Federal Recognition in the ARNG and subsequent transfer to the USAR, the request for extension of promotion consideration, and his HRC promotion orders to 1LT. The Board considered the policy for completion of the required NGB Form 78 and the absence of this form in the records. The Board considered the memorandum from the Maryland ARNG as well as the review, conclusions and recommendation of the ARNG advising official. The Board found that the applicant had been duly promoted to 1LT by a proper authority and agreed with the advising official regarding a delay in the applicant’s promotion due to no fault on the part of the applicant. Based on a preponderance of evidence, the Board determined that a correction to the applicant’s record was necessary as a matter of justice. 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 :XXX :XXX :XXX GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 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 Orders B-02- 700882, published by HRC, dated 21 February 2017, promoting the applicant to 1LT to reflect Effective Date and Date of Rank as “15 November 2015” vice “23 January 2017.” 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. The ABCMR may correct an officer's date of rank/effective date of rank when a proper appointment has already occurred. a. Title 10 USC 624 and 741 provide for situations in which properly appointed officers are provided "backdated" dates of rank 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 (23 August 2013) provides that a Service Secretary may "adjust the date of rank 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. 2. Personnel Policy Operational Memorandum number 13-006, dated 3 February 2013, states the state must consider all 2LTs for promotion and complete an NGB Form 78 at least 18 months whether or not the 2LT is qualified and recommended for promotion. If a 2LT is not recommended for promotion at 18 months, the commander must submit an NGB Form 78 with a request for separation or a request for the Adjutant General to grant an extension to 24 month. If the officer was retained but not promoted at 18 months, the unit commander must submit another NGB Form 78 at 24 months. If the officer is still not recommended for promotion at 24 months, the unit commander must forward a completed NGB Form 78 with a request for separation or a request for extension through the State G1 for NGB approval to 36 months. 3. Army Regulation 135-155 (Promotion of Officer and Warrant Officers other than General Officers), states officers having a valid permanent or temporary medical profile that, as determined by appropriate medical personnel, precludes administration of the APFT, are deemed to not have taken the APFT through no fault of their own. 4. Army Regulation 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) AR20170009537 6