ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 December 2019 DOCKET NUMBER: AR20170012678 APPLICANT REQUESTS: in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to adjust his active date of rank (ADOR) to captain (CPT) to align with his Reserves date of rank (RDOR), with a date of 29 May 2003 instead of 1 September 2003. The applicant requests and appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Congressional Inquiry privacy release form with no date * Department of the Army (DA) response to Congressional Inquiry * Leave and Earnings Statement (LES), dated 19 May 1999 * DA Form 1506 (Statement of Service-For Computation of Service for Pay Purposes) dated 15 July 2014 * Chronological Statement of Retirement points, dated 9 April 2017 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 (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 that he was sworn in as a first lieutenant (1LT)/O-2 in May 1999 and was commissioned as an officer. He served in the U.S Army Reserve (USAR) until 2003. He went to active duty and was promoted to the rank of captain (CPT) in the Reserve in 29 May 2003. When he went active duty in 2003 and reported on 1 September 2003 that was when they put his rank as CPT, which was wrong. His DD Form 214 shows his incorrect date of promotion and entry into the Army. For the past 11 years, he has not been promoted to the rank of major (MAJ)-lieutenant colonel (LTC) because his instructor in the chaplain school at Fort Jackson, SC in 2007 discriminated against him due to his race and sabotaged his class. He further states that his records were incorrect and did not properly record his service years on active duty and Reserve. These errors are in his records. He was also unjustly and racially denied promotion to MAJ/LTC because of racism and unjustly maltreatment in the school house at Fort Jackson, SC. 3. The applicant provides a copy of a congressional inquiry privacy release statement that states that the applicant requests the assistance of his Congressman. The DA provided a response that states the applicant has a right to request a review of his concerns by ABCMR and that his right to apply does not imply that an error or injustice occurred, nor does submission of an application ensure that a hearing will be held or favorable action will be taken. He also provides: * Copy of his leave and earnings statement, dated 19 May 1999, that shows his rank as captain * DA Form 1506 (Statement of Service-For Computation of Service for Pay Purposes) dated 15 July 2014, shows service from 1999 to 2003 in the U.S Army Reserve (USAR) * Chronological Statement of Retirement points, dated 9 April 2017, shows service from 19 May 1999 to 19 May 2015 in the USAR. 4. A review of the applicant’s service record shows the following: a. He was appointed as a Reserve commissioned officer effective 19 May 1999 at the rank of 1LT/O-2. b. DA Form 71 (Oath of Office-Military Personnel) shows that the applicant was commissioned as a Reserve officer, effective 19 May 1999 in the grade/rank of 1LT/O-2. c. His LES, dated 19 May 1999, shows the applicant’s rank as a 1LT/O-2 with 3 years of service. d. DA Form 160-R (Application for Active Duty), dated 24 March 2003, shows the applicant applied for active duty service for 3 years on 24 March 2003. It also shows his rank in item 4a (Present Reserve Rank) as 1LT/O-2. e. DD Form 2808 (Request for Conditional Release), dated 7 May 2003 shows that the applicant requested a conditional release from the USAR, effective 7 May 2003. It also shows in Section 1b (Pay Grade) as O-2. f. A memorandum, dated 18 June 2003 appoints the applicant to active duty and shows his rank as CPT/O-3. g. Promotion as a Reserve Commissioned Officer memorandum, dated 1 July 2003, shows that the applicant was promoted to the rank of CPT, effective 29 May 2003. h. Orders A-07-393379, dated 14 July 2003, shows the applicant was ordered to full active duty service, effective 18 August 2003. It also shows his rank as CPT/O-3. i. Orders 224-0175, dated 12 August 2014, discharges the applicant from the active duty effective 17 September 2014 j. The applicant’s Officer Record Brief (ORB), dated 16 September 2014, shows in Section III (Service Data) his basic active service date as 18 April 2003 and his basic date of appointment as 18 August 2003. It also shows his date of rank to CPT/O-3, effective 1 September 2003. k. Orders 260-0171, dated 17 September 2014, amended orders 224-0175, dated 12 August 2014 and changed the applicant’s reporting date from 17 September 2014 to 1 October 2014. l. DA Form 5691 (Request for Reserve Component Assignment Orders), dated 23 September 2014 shows the applicant requested to enlist in the USAR and it shows his rank as CPT/O3. m. Orders 266-0175, dated 23 September 2014, amends orders 224-0175 and changes 2-year authorized commissary privileges to no authorized 2 years of commissary privileges. It also shows his rank as CPT. n. Orders 274-0178, dated 1 October 2014, released the applicant from active duty effective 1 October 2014. The orders show the applicant’s rank as CPT/O-3. o. A memorandum, dated 2 October 2014, appoints the applicant as a Reserve commissioned officer at the rank of CPT. p. He was discharged from active duty on 1 October 2014 with an honorable character of service. His DD Form 214 shows in: * block 4a (Grade, Rate, or Rank) as CPT * block 4b (Pay Grade) as O-3 * block 11 (Primary Specialty) Unit Chaplain, 15 years and 4 months * block 12a (Date Entered this Period) reflects 18 August 2003 * block 12i (Effective Date of Pay Grade) as 1 September 2004 * block 28 (Narrative Reason for Separation) as Non-selection, permanent promotion q. His DD Form 214 also shows he completed 11 years, 1 month, and 14 days of active duty service with 5 months and 10 days of prior active duty service. He had 3 years, 9 months, and19 days of prior inactive service. r. A Reserve status statement, dated 10 October 2016, shows that the applicant requested to transfer to the Retired Reserves and requested retention to complete 20 years of qualifying service. r. Selective continuation on the Reserve active list memorandum, dated 21 October 2016, states that the applicant was not selected for promotion but was recommended for continuation in his present grade (CPT) and the Secretary of the Army approved the recommendation. Furthermore, it states that unless he declines continuation he will be continued until he has completed 24 years of commissioned service if he is a major and 20 years commissioned service as a CPT. 5. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) states that a CPT on the Reserve Active Status List (RASL) who has failed of selection for promotion to MAJ for the second time, whose name is not on a list of officers recommended for promotion to MAJ, and who has not been selected for continuation on the RASL under 10 USC 14701, will be separated unless the officer has a remaining service obligation or can be credited with 18 or more but less than 20 years of qualifying service for retired pay. Separation will be not later than the first day of the seventh month after the month in which the final approval authority approves the report of the board that considered the officer for the second time. 6. Army Regulation 600-8-29 paragraph 1-40a(5) states that the officer is, at the time of appointment, a Regular Army officer and the new original appointment will effect a change in the officer’s status from a special branch to a basic branch from a basic branch, to a special branch, or between special branches. In these cases the ADOR will be recomputed in accordance with paragraph 1–38 above, except that in no event will the officers ADOR in the new original appointment be later than the ADOR held in the next precedent appointment. 7. Army Regulation 600-8-29 paragraph 7 states that: a. The Special Selection Board’s (SSBs) may be convened under 10 USC 628 to consider or reconsider commissioned or warrant officers for promotion when HQDA discovers one or more of the following: (1) An officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error. This would include officers who missed a regularly scheduled board while on the TDRL and who have since been placed on the ADL (10 USC 628(a)(1) (SSB required)). (2) The board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary). (3) The board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary). b. Special Selective Continuation Boards (SSCB) may be convened in accordance with Title 10 USC, section 637 for commissioned officers and Title 10 USC, section 580 for warrant officers to consider for selective continuation officers who have twice failed selection for promotion, provided the officers would or should have been considered by a Selective Continuation Board following their second failure of selection for promotion. SSCB for USAR warrant officers on the active duty list are solely governed by this regulation. 8. Army Regulation 15-185 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 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. 2. After review of the application and all evidence, the Board determined there is sufficient evidence to grant partial relief. The applicant’s contentions were carefully considered. The Board determined that the applicant’s ADOR should match his Reserve DOR to CPT with an effective date of 29 May 2003. Such an adjustment does not affect the effective date of promotion for the purpose of pay and allowances. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :XX :XXX :XXX 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 showing his ADOR to CPT/O-3 in the Regular Army with an effective date of 29 May 2003. 2. The Board further determined that 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 any relief in excess of that described above. 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 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 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 begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The application has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing a request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicant’s do not have a right to a hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) states that A captain on the Reserve Active Status List (RASL) who has failed of selection for promotion to MAJ for the second time, whose name is not on a list of officers recommended for promotion to MAJ, and who has not been selected for continuation on the RASL under 10 USC 14701, will be separated unless the officer has a remaining service obligation or can be credited with 18 or more but less than 20 years of qualifying service for retired pay. Separation will be not later than the first day of the seventh month after the month in which the final approval authority approves the report of the board that considered the officer for the second time. 4. Army Regulation 600-8-29 paragraph 1-40a(5) states that the officer is, at the time of appointment, a Regular Army officer and the new original appointment will effect a change in the officer’s status from a special branch to a basic branch from a basic branch, to a special branch, or between special branches. In these cases the ADOR will be recomputed in accordance with paragraph 1–38 above, except that in no event will the officers ADOR in the new original appointment be later than the ADOR held in the next precedent appointment. 5. Army Regulation 600-8-29 paragraph 7 states that: a. The SSBs may be convened under 10 USC 628 to consider or reconsider commissioned or warrant officers for promotion when HQDA discovers one or more of the following: (1) An officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error. This would include officers who missed a regularly scheduled board while on the TDRL and who have since been placed on the ADL (10 USC 628(a)(1) (SSB required)). (2) The board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary). (3) The board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary). b. Special Selective Continuation Boards may be convened in accordance with Title 10 USC, section 637 for commissioned officers and Title 10 USC, section 580 for warrant officers to consider for selective continuation officers who have twice failed selection for promotion, provided the officers would or should have been considered by a selective continuation board following their second failure of selection for promotion. Special Selective Continuation Boards for USAR warrant officers on the Active Duty List are solely governed by this regulation. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170012678 6 1