BOARD DATE: 13 August 2020 DOCKET NUMBER: AR20180000621 APPLICANT REQUESTS: Correction of his record to show: * his Date of Rank (DOR) for promotion to the rank/grade of captain (CPT)/O-3 as 25 March 2014 * applicable back pay and allowances as CPT/O—3E pay for 25 March 2014 through 15 June 2015 for his active duty/deployment/annual training/unit training assemblies during that period * a personal hearing before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Orders Number 168-028, dated 17 June 2015 * Memorandum, Subject: Promotion as a Reserve Commissioned Officer of the Army, dated 26 June 2015 * Memorandum, Subject: Special Selection Board (SSB) Results (SSB RS1508- 17) Fiscal Year (FY) 2014, dated 4 May 2016 * Email correspondence * Special Orders (SO) Number dated 25 May 2016 * Leave and Earnings Statements (LES) 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 his promotion order was amended/corrected as a result of the SSB. His DOR was corrected as a result of the SSB that determined his promotion was erroneously delayed. 3. A review of the applicant's official records shows the following: a. On 10 August 2008, the applicant was appointed as a commissioned officer in the New Jersey Army National Guard (NJARNG) and executed an oath of office. b. On 24 March 2010, SO Number 54, issued by the National Guard Bureau (NGB) extended Federal Recognition and promoted the applicant to the rank/grade of first lieutenant (1LT)/O-2, effective 10 February 2010. c. On 25 March 2014, by memorandum, the applicant was notified that a Department of the Army Reserve Components mandatory selection board had convened to consider him for promotion to CPT. He was considered but was not selected due to his records not indicating he had the required civilian and/or military education requirements for promotion. d. On 17 June 2015, Orders Number 168-028, issued by the Joint Forces Headquarters (JFHQ), Joint Base McGuire-Dix-Lakehurst, NJ, promoted the applicant to the rank of CPT with 4 years enlisted service, effective on 16 June 2015, and a DOR of 16 June 2015. e. On 4 May 2016, by memorandum, the applicant was informed that he was considered and selected for promotion by an SSB to CPT, under the criteria and instructions established for the regularly constituted FY 2014, CPT, Army Promotion List, ARNGUS, promotion selection board. He would need to coordinate with the NGB and his unit for the promotion. f. On 12 May 2016, Orders Number 133-041, issued by the JFHQ, Joint Base McGuire-Dix-Lakehurst, amended Orders Number 168-028 insomuch as changing his effective date and DOR to 25 March 2014. g. On 8 November 2016, Orders Number D-11-626290, issued by the U.S. Army Human Resources Command, Fort Knox, KY, honorably discharged the applicant from the U.S. Army Reserve. 4. The applicant provides: a. Memorandum, Subject: Promotion as a Reserve Commissioned Officer of the Army showing the applicant was promoted to the rank of CPT, effective on 16 June 2015. b. Email correspondence showing the applicant inquired about a DOR correction with the U.S. Air Force. c. SO Number 103, issued by the NGB, extended Federal Recognition, and corrected the applicant's DOR to 25 March 2014. d. LES's showing the applicant's entitlements, he was an officer with enlisted time, and was paid as a 1LT until he started getting paid as a CPT with his LES ending on 17 July 2015. 5. On 5 November 2019, the NGB reviewed the applicant's records and rendered an advisory opinion in his case. After a thorough review, an NGB official opined that: a. The applicant was originally promoted to CPT effective 16 June 2015, per SO Number 132, dated 26 June 2015. However, this order was later amended to reflect an effective date of 25 March 2014, per SO Number 103 dated 25 May 2016. b. He further contends that he has made several efforts to coordinate with the Defense Finance and Accounting Service (DFAS) by submitting the necessary documents in order to receive his back pay but has been unsuccessful insofar as receiving it. This office has further coordinated with DFAS as well as the former Soldier in an effort for him to receive back pay for the period reflected on his amended Federal Recognition order. c. If the necessary actions are completed and the Soldier is properly compensated, it is their office recommendation that the Board close the case and return without action. Otherwise, their office recommends approval. 6. The applicant was provided with a copy of this advisory opinion to give him an opportunity to respond and/or submit a rebuttal. He did not respond. 7. See applicable references below. BOARD DISCUSSION: After reviewing the application and all supporting evidence, the Board determined there is sufficient evidence to grant partial relief. 1. The Board agreed with the NGB Advisory Opinion and found that the applicant’s promotion date to CPT/O-3 was previously amended to reflect an effective date of 25 March 2014 and the applicant is entitled to back-pay. 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 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. 1. As a result, the Board recommends that all Department of Army records of the individual concerned be corrected by: • showing the applicant was promoted to the rank of captain (CPT)/O-3 effective 25 March 2014, and • paying him all pay due as a result of that correction 2. Regarding the applicant’s request for a Personal Hearing, the Board recommends disapproval. 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 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 ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) states in table 2-1 time in grade for promotion from 1LT to CPT is 2-years minimum time in the lower grade and 5-years maximum time in grade. Effective 1 October 1995, no person may be selected for promotion to the Reserve grade of CPT unless, not later than the day before the selection board convene date, that person has been awarded a baccalaureate degree from an accredited institution recognized by the Secretary of Education or, within the 3 years preceding promotion, the officer has earned a baccalaureate degree from an unaccredited educational institution that has been recognized by the Department of Defense for purposes of meeting officer educational requirements. 3. Department of Defense Instructions 1310.01 (Rank and Seniority of Commissioned Officers) states the Secretary of the Military Department concerned may adjust the date of rank of an officer, except a general or flag officer, appointed to a higher grade under Title 10, USC, sections 624(a) or 14308(a) if the appointment of that officer to the higher grade is delayed by unusual circumstances. The Secretary of the Military Department concerned must determine that the unusual circumstance caused an unintended delay in processing or approval of the selection board report or promotion list in order for an officer’s date of rank to be adjusted. 4. Title 10 United States Code, section 1552 states the Secretary of a military department may correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or remove an injustice. 5. 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) AR20180000621 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1