ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 May 2019 DOCKET NUMBER: AR20180004828 APPLICANT REQUESTS: correction of his effective date of rank (DOR) to Major (MAJ) to reflect 31 March 2014 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 2B (Personnel Qualification Record – Commissioned Officer) * Promotion Order to MAJ, dated 23 October 2014 * Promotion Qualification Statement, dated 26 January 2015 * Date of Rank Correction Request for Headquarters Resources Command (Promotions Branch), dated 23 July 2015 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 his promotion orders were created with the incorrect date of rank. The administrative specialist made the date to reflect when they were told to do the paperwork. Per regulation, the correct date should reflect when the board was held. He requests to amend the orders from 18 September 2014 to 31 March 2014. 3. The applicant provides: a. A copy of his Personnel Qualification Record, dated 1 October 2016. b. The promotion order (B-10-406342) for MAJ from U.S. Army Human Resources Command (HRC), dated 23 October 2014. c. The Promotion Qualification Statement which assigned the applicant to a valid vacant position on 9 December 2013 and signed by his immediate commander on 26 January 2015. a. d. The Date of Rank Correction Request memorandum for HRC, signed by the applicant on 23 July 2015. 4. A review of the applicant’s service record shows: a. He had prior enlisted service and on 17 April 2003, he was commissioned as an officer in the Army National Guard in the rank of Second Lieutenant (2LT). 5. On 29 November 2018, the Army Review Board Agency received an advisory opinion from HRC, which states: a. Based on a review of his records and the information provided, they found that his request does not have merit. b. Dates of rank and effective dates are not solely based on the convene dates of any promotion selection board. Promotion of Reserve Officers to the next higher grades are predicated on assignment to a higher grade position or by exceeding the maximum time in grade of the promotion eligibility date (MAXPED) as determined by law. The earliest of which any reserve officer may be promoted would be the date the board recommendations were approved (if the officer in questions was past his or her MAXPED) or the earlier date via Promotion Qualification Statement Request (56-R). c. MAJ X___ was awarded his MAXPED of 18 September 2014, his command failed to submit the required 56-R and additional documents of proof to HRC for an earlier date of rank and effective date prior to him reaching his MAXPED (even after HRC’s direct request). The 56-R submitted in his packet is dated as 26 January 2015, four months after his MAXPED. d. 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. 6. By regulation, AR 135-155 (Promotion of Commissioned Officers and Warrant Officer Other Than General Officers), paragraph 4-21, b (1) and b (2), promotion to fill USAR position vacancies will be no earlier than the approval date of the board or the date the officer is assigned to the position, whichever is later. Also, unit officers selected by a mandatory board will have a promotion date and effective date no earlier than the date the board is approved or the date Senate confirmation (if required), provided they are assigned to a position in the higher grade. 1. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the finding of HRC’s advisory stating they found that his request does not have merit and the applicant failed to submit a rebuttal to those findings, the Board concluded there was insufficient evidence of 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. 6/ X 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. CHAIRPERSON Signed by: 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. The ABMCR may correct an officer’s date of rank (DOR)/effective date DOR when a proper appointment has already occurred. a. Title 10 USC, sections 624 and 741 provide for situations in which properly appointed officers are provided "backdated" DOR 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 (Rank and Seniority of Commissioned Officers) provides that a Service Secretary may "adjust the DOR 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. 3. Army Regulation (AR) 135-155 (Promotion of Commissioned Officers and Warrant Officer Other Than General Officers), paragraph 4-21, b (1) and b (2), promotion to fill USAR position vacancies will be no earlier than the approval date of the board or the date the officer is assigned to the position, whichever is later. Also, unit officers selected by a mandatory board will have a promotion date and effective date no earlier than the date the board is approved of the date Senate confirmation (if required), provided they are assigned to a position in the higher grade.