IN THE CASE OF: BOARD DATE: 27 February 2021 DOCKET NUMBER: AR20180011556 APPLICANT REQUESTS: Correction of his record to show: * adjustment of his Date of Rank (DOR) for promotion to the rank/grade of captain (CPT)/O-3 to 30 September 2015 * disability retirement orders to show he was promoted and retired in the rank/grade of major (MAJ)/O-04, effective 28 September 2020 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Exhibit 1; * DA Form 71 (Oath of Office Military Personnel) * National Guard Bureau (NGB) Form 337 (Oaths of Office) * Orders Number 301-1070, dated 28 October 2014 * Exhibit 2; Orders Number 364-304, dated 30 December 2014 * Exhibit 3; Orders Number 49-1009, dated 18 February 2015 * Exhibit 4; Orders Number 96-1028, dated 6 April 205 * Exhibit 5; DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 7 May 2015 * Exhibit 6; Judge Advocate Generals (JAG) Corps consolidated DOR roster of Active Component Judge Advocates * Exhibit 7; Orders Number 223-301, dated 11 August 2015 * Exhibit 8; Orders Number 266-474, dated 23 September 2015 * Exhibit 9; Orders Number 145-1048, dated 24 May 2016 * Exhibit 10; Orders Number 05-6287-00005, dated 13 October 2016 * Exhibit 11; Special Orders (SO) Number 254, dated 5 December 2016 * Exhibit 12; DD Form 368 (Request for Conditional Release), dated 1 January 2017 * Exhibit 13; JAG letter, dated 6 January 2017 * Exhibit 14; Orders Number 066-0112, dated 7 March 2017 * Exhibit 15; DD Form 214, ending on 6 April 2017 * Exhibit 16; Orders Number 95-1035, dated 5 April 2017 * Exhibit 17; Orders Number 917-256-JA13-2, dated 13 September 2017 * Exhibit 18; Orders Number A-09-702154, dated 13 September 2017 * Exhibit 19; DA Form 71, dated 27 September 2017 * Exhibit 20; Orders Number 059-005, dated 28 February 2018 * Exhibit 21; Fiscal Year (FY) 2018-2022 JAG Corps Active Component MAJ Promotion Selection Board Primary Zone Forecast * Exhibit 22; Email Correspondence * Exhibit 23; DA Form 67-10-1 (Company Grade Plate (O1-O3; WO1-CW2) Officer Evaluation Report OER)), ending on 31 January 2016 * Exhibit 24; DA Form 67-10-1, ending on 23 August 2016 * Exhibit 25; DA Form 67-10-1, ending on 11 March 2017 * Exhibit 26; DA Form 67-10-1, ending on 15 June 2018 * Orders Number 167-0029, dated 15 June 2020 * DD Form 214, ending on 29 September 2020 FACTS: 1. The applicant states; a. In his current petition he states, he submitted an Army Board for Correction of Military Records (ABMCR) petition way back in August 2018 to correct his DOR while he was still on active duty in ABCMR Docket Number AR20180011556. As of the date of this writing, the Board still has not acted on that petition. Because the Board did not act on his petition in a timely manner, he was unable to compete for promotion to MAJ before he was medically retired. This is simply a matter of intense personal pride and is not at all about the money. This promotion would not affect his retired pay at all since it is capped at 75 percent of his high 3 and is offset by his Veterans Affairs disability pay. b. In ABCMR Docket Number AR20180011556 he states; Summary of errors/injustices (1) The California Army National Guard (CAARNG) mishandled his rank/grade of first lieutenant (1LT)/O-2 DOR and wrongfully delayed promotion to the rank of CPT while he was deployed in support of Operation Enduring Freedom: (2) The Federal Recognition process was excessive, causing him to lose out on thousands of dollars and causing him to lose ground on his Regular Army (RA) peers even though he was doing the exact same work; (3) He received misleading information about his reporting date when he was selected to transfer to the RA; (4) The CAARNG grossly misapplied his conditional release and wrongfully transferred him to the Individual Ready Reserve (IRR) without notice, causing him to lose out on thousands more dollars and lose his TRICARE Prime eligibility with a pregnant wife after an extended deployment in support of Operation Enduring Freedom; (5) The Office of the Secretary of Defense failed to approve his RA scroll in a timely fashion, preventing him from going on orders while in the IRR. c. Due to a series of errors and injustices, which were primarily committed by the CAARNG, his promotion to CPT was wrongfully delayed, and his current CPT DOR was unjustly pushed far to the right when he transferred to the RA. Unless his CPT DOR is corrected, his eligibility for promotion to MAJ will be unfairly delayed by two years compared to his cohort. d. For individuals with no prior service, direct commissions in the grade of 1LT and rapid promotions to CPT are customary and expected in the JAG Corps. These are important recruiting incentives in part because judge advocates do not receive professional pay, even though they are licensed attorneys. e. His cohort is the 196th Judge Advocate Officer Basic Course (JAOBC), which he and his classmates completed on 7 May 2015. As expected, his classmates in the RA were all promoted to CPT approximately two months after graduation. Their CPT DORs range slightly from 7-16 July 2015. For purposes of this application, he will simply use 16 July 2015 as their CPT DOR. All references to "his cohort" or "his classmates" in this application mean his non-prior service JAOBC classmates in the RA. f. While deployed in support of Operation Enduring Freedom, he was selected to transfer from the National Guard to the RA. His actual date of appointment in the RA was delayed, as described in the timeline below, but ended up being 27 September 2017. g. From 16 July 2015 to 27 September 2017, there were 804 days. Of those 804 days, he spent 570 days on orders (nearly all of which were deployed in support of Operation Enduring Freedom). In other words, from the time his classmates were promoted to CPT, until he was appointed in the RA, he was on orders more than 70 percent of the time. h. In addition to those 570 days on orders, there were 173 days he should have been on orders if it were not for significant errors and injustices described below. This would have brought his total time on orders to 743 days, or more than 92 percent of the time. i. He requests that his CPT DOR be readjusted to 15 September 2015. He calculated that date by subtracting 743 days from 27 September 2017. This would be fair and just because those 743 days' account for the time he actually spent on orders as well as the time he should have been able to spend on orders, from the date his classmates were promoted to CPT until the date of his actual appointment in the RA. It is also fair and just because it accounts for the time he spent off orders before deploying. This would allow his classmates to still be slightly senior in grade to him while simultaneously keeping him in the same cohort for promotion to MAJ. It would also help him avoid being penalized simply for deploying and transferring from the National Guard to the RA. j. Timeline of Errors and Injustices. In support of this request, please consider the following information, in chronological order. (1) On 22 October 2014, he was commissioned and appointed in the CAARNG. See exhibit 1. As a non-prior service attorney entering the JAG Corps, he was directly commissioned in the rank of 1LT with assurances from the CAARNG that he would be provided 18 months of time in grade to ensure rapid promotion to CPT with his cohort. (2) On 11 January 2015, he was activated to attend JAOBC. See exhibit 2. (3) On 18 February 2015, nearly four months after commissioning, the CAARNG finally attempted to issue him the 18 months of time in grade. However, the CAARNG erroneously pushed his DOR 18 months into the future instead of backdating it. Until he notified the CAARNG of this error – and requested that it be fixed – he had an inexplicable 1LT DOR of 22 April 2016. See exhibit 3. This error would end up significantly delaying his promotion to CPT. (4) On 6 April 2015, more than five months after commissioning, the CAARNG finally corrected his 1LT DOR and backdated it to 22 April 2013 with assurances of being promoted to CPT with his cohort. See exhibit 4. (5) On 7 May 2015, he completed JAOBC. Release from Active Duty (REFRAD) and returned to the CAARNG. See exhibit 5. (6) From 7-16 July 2015, his classmates were promoted to CPT. See exhibit 6. However, without explanation and despite its previous assurances, the CAARNG failed to promote him at this time. (7) On 27 July 2015, while on his honeymoon, the CAARNG sent out a short- notice deployment opportunity in support of Operation Enduring Freedom. After discussing it with his wife and his civilian employer (a very small law firm with only two other attorneys), he volunteered to go. He would become the first person from his cohort, in any component, to deploy. (8) From 11-25 August 2015, annual training with his CAARNG unit in preparation to deploy. See exhibit 7. He inquired about the status of his promotion to CPT, which should have been imminent at that time. Leadership was largely nonresponsive, backpedaled on their original promises, and suggested he submit a unit vacancy packet during the upcoming deployment. Disappointed about not getting promoted in a timely fashion, but determined to get deployment experience, he continued on without complaining, even though he knew it would mean losing out on thousands of dollars. As a newly married man trying to provide for his wife, buy furniture, repay student loans, and save to start a family, this was a tough pill to swallow at the time. They even decided to delay trying to have their first child due to budgetary reasons. (9) On 30 September 2015. He was activated on Title 10, United States Code (USC) orders to deploy in support of Operation Enduring Freedom. See exhibit 8. He would have – and should have – been on orders continuously from that time until now if it were not for additional errors and injustices, described below, during the process of his transfer to the RA. (10) On 24 May 2016, more than 10 months after his classmates were promoted to CPT, and nearly eight months into his deployment, the CAARNG finally issued a promotion order with a CPT DOR of 19 May 2016. See exhibit 9. There was no explanation of how it came up with that date. However, his "real" promotion to CPT still required Federal Recognition before he could officially pin on or receive CPT pay. (11) On 23 August 2016, the CAARNG unit redeployed. Being determined not to go home still wearing 1LT rank, and becoming increasingly disillusioned with the errors and delays of the CAARNG, he volunteered for an in-theater extension and decided he would apply to transfer to the RA during the upcoming application cycle. (12) On 28 September 2016, while still deployed, he submitted a formal application to transfer to the RA and was interviewed by the Deputy Staff Judge Advocate, XVIII Airborne Corps, who was the Field Screening Officer (FSO) in theater at that time. (13) On 3 November 2016, for his in-theater extension, began Contingency Operation for Active Duty Operational Support (CO-ADOS) orders. No break in service or REFRAD at that time. See exhibit 10. The CO-ADOS orders ran until 1 July 2017, and he would have stayed on these orders until then if it were not for additional errors and injustices described below. (14) On 5 December 2016, more than 16 months after his classmates were promoted to CPT, and more than 14 months into his deployment, the NGB finally completed the Federal Recognition process and gave him a new CPT DOR of 21 November 2016 without any explanation of how that date was calculated. See exhibit 11. He finally pinned on and began receiving CPT pay, but he did not receive back pay for the time it took the Federal Recognition process to run, which was more than six months. (15) On 21 December 2016, he received informal notice from his FSO that his application had been approved and that he was selected to transfer to the RA. (16) On 1 January 2017, he signed and submitted a DD Form 368, requesting to be released from the CAARNG upon appointment in the RA. The DD Form 368 is a routine document when transferring from one component to another, and it clearly describes the release is only to become effective upon actual appointment in the other component. See exhibit 12. (17) On 6 January 2017, he received a formal letter from the Judge Advocate Recruiting Office (JARO), congratulating him on being selected to transfer to the RA. The letter said he may be required to demobilize early and should expect to be appointed in the RA in the summer of 2017. See exhibit 13. Additional communication from JARO revealed that he could and should expect to report to Fort Knox on 1 May 2017. In direct reliance on that reporting date, he began making preparations to be released from theater and to be released from his CO-ADOS orders earlier than anticipated. (18) On 21 March 2017, the CAARNG Chief of Staff signs and approves the DD Form 368. See exhibit 12 again. Note that Section 3 (Notification of Enlistment/Appointment Action) of the DD Form 368 was never completed because the CAARNG would end up wrongfully transferring him to the IRR in the U.S. Army Reserve (USAR) on 1 May 2017 in direct violation of the terms of the DD Form 368, as described below. (19) On 6 April 2017, after 555 continuous days on orders in support of Operation Enduring Freedom, he redeployed, was REFRAD, and received a DD Form 214. See exhibits 14-15. He went home to the CAARNG, fully expecting to be immediately appointed in the RA with a reporting date of 1 May 2017 as JARO previously informed him. He and his wife both quit their civilian jobs and packed up their household goods in anticipation of moving to Fort Knox, KY, in a matter of days. However, they soon found out the scroll that he was on was delayed without explanation. He and his wife also quickly found out she was pregnant with their first child. Therefore, he requested that the CAARNG put him on orders, pending his actual appointment in the RA, so that he could maintain a regular income and maintain TRICARE Prime eligibility. Unfortunately, the CAARNG completely ignored his request. Little did he know at that time the CAARNG was preparing to transfer him to the IRR, as described below. (20) On 1 May 2017, without informing him or giving him any notice, the CAARNG erroneously and prematurely separated him from the National Guard and transferred him to the IRR. This action was a clear and direct violation of the DD Form 368 for two major reasons: (1) He had not yet been appointed in the RA at that time; and (2) the DD Form 368 was explicitly for transfer to the RA, not the IRR (USAR). See exhibit 16. After an extended deployment, this action by the CAARNG was especially egregious for the following reasons: it unilaterally and fundamentally changed his military status without his knowledge or consent; it prevented him from continuing to earn a regular income for months; it prevented him from going on any kind of orders pending his appointment in the RA; it removed his TRICARE Prime eligibility while his wife was pregnant with their first child; and it revoked the certificates on his common access card, preventing him from accessing his military email address for months. (21) On 8 September 2017, more than five months later than anticipated, the scroll that he was on was finally approved, and he was appointed in the RA. See exhibit 17. (22) On 13 September 2017, after waiting and worrying all summer, he finally received his RA activation and permanent change of station orders with a reporting date later that month. With just a few days left of transitional healthcare, and a wife in her third trimester of pregnancy, these orders allowed them to finally move their household goods and hit the road. See exhibit 18. (23) On 27 September 2017, he reported to Fort Knox and execute a new oath of office for the RA. See exhibit 19. (24) On 28 February 2018, the U.S. Army Human Resources Command (HRC) adjusted his CPT DOR to 13 May 2017, presumably in accordance with Army Regulation (AR) 600-8-29 (Officer Promotions), paragraph 1-44 (Grade and active DOR of other than RA Judge Advocate General’s Corps officers upon placement on the active duty list). However, that portion of the regulation, as applied to his career, has resulted in clear and manifest injustice due to the foregoing errors. See exhibit 20. He decided to appeal HRC’s decision, which eventually resulted in a final administrative denial and referral to the Army Review Boards Agency (ARBA), as described below. (25) On 1 March 2018, The Judge Advocate General approved the FY 2018- 2022 primary zone forecast for RA MAJ promotion boards. The promotion zone for CPT's with DORs from 2 May 2014 to 30 September 2015 is FY 2021. That includes his cohort. The DOR zone for FY 2022 is 1 October 2015 to 1 August 2016. The zone for FY 2023 has not been published at the time of this writing, but it is anticipated to include his current DOR, which would unjustly push him back two full years compared to his cohort. See exhibit 21. (26) On 2 August 2018, in an email from the HRC DOR Adjudications Department to the HRC legal office, his request to readjust his CPT DOR was officially denied on behalf of the Director, Officer Personnel Management Directorate, citing inflexibility under AR 600-8-29, paragraph. 1-44. As a final administrative denial, HRC specifically referred him to ARBA at that time. See exhibit 22. k. Summary of Errors and Injustices. (1) The CAARNG mishandled his 1LT DOR, which unjustly and significantly delayed his promotion to CPT. (2) Even after correcting his 1LT DOR, the CAARNG wrongfully failed to promote him to CPT with his cohort, even after he volunteered to deploy in support of Operation Enduring Freedom. (3) The Federal Recognition process was excessively long and unjust. (4) He lost out on thousands of dollars while deployed in support of Operation Enduring Freedom due to CAARNG’s errors, CAARNG’s wrongful failure to promote him with his cohort, and the excessive Federal Recognition process. (5) The NGB gave him a CPT DOR more than six months later than the DOR issued by the CAARNG, without any explanation or calculation of how it came up with a date. (6) In reliance on information from JARO about his RA reporting date, he demobilized from CO-ADOS orders much earlier than turned out to be necessary and lost out on thousands more dollars when the scroll he was on got delayed. (7) The CAARNG grossly mishandled his DD Form 368 and wrongfully transferred him to the IRR (USAR) without any notice. This action was completely contrary to the express terms of the DD Form 368 and caused enormous headaches for his wife and him for several months. (8) The scroll he was on was not approved in a timely fashion. (9) HRC failed to consider or weigh these errors and injustices when calculating his active duty CPT DOR. l. Discussion. His request is fundamentally about fairness, the interests of justice, and ensuring his career continues on pace with his cohort in a timely and meritorious manner. (1) Experience. He should be allowed to compete for promotion to MAJ with his cohort. He has the same professional experience in the JAG Corps as his classmates, if not more so, considering his extended deployment time. All of his OERs and senior rater comments fully support his potential and maturity. See exhibits 23-26. (2) Financial Considerations. Even though he lost out on thousands of dollars while deployed in support of Operation Enduring Freedom – and thousands more upon redeployment – the primary purpose of this request is not to seek back pay. Instead, the primary purpose of this request is to make him eligible for promotion to MAJ with his classmates. However, he would specifically note that failure to grant this request will certainly cause him to lose out on thousands more dollars by forcing him to wait an additional two years for promotion to MAJ. m. Conclusion. In light of the foregoing errors and injustices, he requests that his CPT DOR be readjusted to 15 September 2015. That is a fair and just date because it accounts for the time he spent on orders since his classmates were promoted to CPT, a large majority of which was deployed in support of Operation Enduring Freedom. It also accounts for the time he should have been on orders if not for serious errors and injustices by the CAARNG and other agencies. Granting this request would go a long way to make up for the errors and injustices described above. It would also help him avoid being penalized simply for deploying and transferring from the National Guard to the RA. Most importantly, it would allow him to stay in his cohort by putting him in the zone for promotion to MAJ in FY 2021 with the rest of his classmates. 2. A review of the applicant's official records shows the following: a. On 22 October 2014, the applicant was appointed as a Reserve commissioned officer in the CAARNG in the rank/grade of 1LT and executed an oath of office. b. Orders Number 301-1070, issued by the CAARNG, dated 28 October 2014, appointed the applicant in the CAARNG in the rank of 1LT, effective 22 October 2014, under the authority of National Guard Regulation (NGR) 600-100 (Commissioned Officers Federal Recognition and Related Personnel Actions). c. Orders Number 49-1009, issued by the CAARNG, dated 18 February 2015, amended Orders Number 301-1070 pertaining to the applicant's appointment and changed his appointment DOR to 22 April 2016. d. Orders Number 96-1028, issued by the CAARNG, dated 6 April 2015, amended Orders Number 301-1070, pertaining to the applicant's appointment and changed his effective date from 22 October 2014 to 22 April 2013. e. SO Number 101, issued by the NGB, dated 19 May 2015, extended Federal Recognition to the applicant with an effective date of 22 October 2014 and a DOR of 22 April 2013. f. Orders Number 145-1048, issued by the CAARNG, dated 24 May 2016, promoted the applicant to the rank of CPT, effective 19 May 2016. These orders state the effective date of promotion in the ARNG will be indicated on the Federal Recognition order. g. SO Number 254, issued by the NGB, dated 5 December 2016, extended Federal Recognition and promoted the applicant to the rank of CPT, effective on, with a DOR of 21 November 2016. h. Orders Number 95-1035, issued by the CAARNG, dated 5 April 2017, separated the applicant from the CAARNG and transferred him to the U.S. Army Reserve (USAR) Control Group (Reinforcement), effective 1 May 2017. i. SO Number 73, issued by the NGB, dated 14 April 2017, withdrew the applicant's Federal Recognition and transferred him to the USAR. j. NGB Form 22 (Report of Separation and Record of Service), ending on 1 May 2017, honorably released the applicant from the ARNG and transferred him to the USAR Control Group (Reinforcement), under the authority of NGR 635-100 (Termination of Appointment and Withdrawal of Federal Recognition), paragraph 5a(3)(a). Item 5a (Rank) "CPT" and item 6 (DOR) shows 21 November 2016. k. Orders Number A-09-702154, issued by HRC, dated 13 September 2017, ordered the applicant to active duty in a voluntary indefinite status, with a reporting date of 29 September 2017. l. On 27 September 2017, the applicant was appointed as a Regular Army commissioned officer and executed an oath of office. m. Orders Number 059-005, issued by HRC, dated 28 February 2018, adjusted the applicant's active DOR for promotion to CPT to 13 May 2017. n. On 8 May 2020, a Physical Evaluation Board (PEB) convened and the PEB found the applicant physically unfit and recommended a rating of 80 percent, and his disposition be placement on the Temporary Disability Retired List (TDRL) with a re- examination during February 2021. o. Orders Number 167-0029, issued by Headquarters, National Training Center and Fort Irwin, CA, dated 15 June 2020, released the applicant from active duty and placed him on the TDRL in the rank of CPT with an effective DOR of 13 May 2017. p. DD Form 214, ending on 29 September 2020, honorably retired the applicant from active duty by reason of temporary disability. Item 4a (Grade, Rate or Rank) shows "CPT." 3. The applicant provides: a. NGB Form 337 showing his initial appointment in the CAARNG. b. Orders Number 364-304, issued by the Office of the Adjutant General, ordered the applicant to active duty to attend the Basic Officer Leaders Course. c. DD Form 214, ending on 7 May 2015, showing the applicant's REFRAD. d. JAG Corps consolidated DOR roster of Active Component Judge Advocates showing a listing of the applicant's cohort and their DOR for promotion to CPT. e. Orders Number 223-301, issued by the Office of the Adjutant General, ordered the applicant to active duty for training for mobilization training. f. Orders Number 266-474, issued by the Office of the Adjutant General, ordered the applicant to active duty in support of Operation Enduring Freedom for a period of 400 days. g. Orders Number 05-6287-00005, issued by the Office of the Adjutant General, ordered the applicant to active duty for operational support for a period of 241 days. h. DD Form 368 showing the applicant's request to transfer from the ARNG to the RA. i. JAG letter wherein the applicant was congratulated and offered an active duty commission. j. Orders Number 066-0112, issued by Headquarters III Corps and Fort Hood, TX, released the applicant from his current assignment. k. DD Form 214, showing the applicant's second REFRAD. l. Orders Number 917-256-JA13-2, issued by HRC, appointed the applicant in the RA JAG Corps in the rank of CPT. His effective date of his RA appointment was the execution of the oath of office. Office of the Secretary of Defense authorization date was 8 September 2017. m. FY 2018-2022 JAG Active Component Promotion Selection Board Primary Zone forecast showing the FY 2021 board would consider members with a DOR from 2 May 2014 to 30 September 2015. n. Email correspondence wherein an HRC official stated the applicant was given day for day credit for all active duty from his current grade before placement on the RA active duty list. He had a total of 137 active duty days from his current grade promotion to the day before placement on the RA active duty list. He could petition the Board. o. DA Form 67-10-1, ending on 31 January 2016, showing the applicant was evaluated as a trial counsel while deployed to Kuwait. p. DA Form 67-10-1, ending on 23 August 2016, showing the applicant was again evaluated as a trial counsel while deployed to Kuwait. q. DA Form 67-10-1, ending on 11 March 2017, showing the applicant was evaluated as an administrative law attorney while deployed to Kuwait. r. DA Form 67-10-1, ending on 15 June 2018, showing the applicant was evaluated as a defense counsel while deployed to Kuwait. 4. An advisory opinion was provided by the National Guard Bureau (NGB) and CAARNG, in which they both agreed partial relief is warranted to show his DOR to CPT as 22 May 2016. This would compensate for the 6-months it took to amend and correct his DOR to 1LT. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that some relief was warranted. The applicant’s contentions, the military record, an advisory opinion, and regulatory guidance were carefully considered. Based upon a preponderance of the evidence, the Board concurred with the advising official’s findings that an adjustment to his DOR is warranted; however, not at the date requested by the applicant. 2. His record is absent evidence that shows he was selected for promotion to MAJ by a promotion selection board. Official promotion and selection boards select members for promotion based upon their performance and potential; the Board does not. The Board may refer records to appear before a special selection board (SSB) for promotion consideration when there is a clear error or injustice. The Board agreed the request for promotion to Major has no merit as the available evidence does not clearly indicate that he was selected for promotion; however, the Board determined the adjusted DOR may have created conditions for referring the applicant’s record to an SSB was met. 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: 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: a. adjusting his date of rank and effective date of promotion to CPT to show 22 May 2016, and paying him the appropriate back pay and entitlements as a result of the correction; b. referring his record to HRC for review by a SSB to determine if he would have been promoted to Major by an appropriate fiscal year promotion selection board based upon the adjusted DOR; and c. if selected for promotion to Major, amending his DD Form 214 and retirement orders to show the promotion. 2. The Board further determined 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 further relief. 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. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers): a. Table 2-1 states, promotion from 1LT to CPT is 2 years' minimum time in grade in the lower grade and a maximum of 5 years in the lower grade for promotion. b. Paragraph 4-17b (Promotion eligibility and DOR) states, the DOR is the date the officer actually or constructively was appointed or promoted to a specific grade. It is the date used to determine the relative seniority for officers holding the same grade. An officer’s DOR will be used to establish time in grade requirements to the next grade. 2. AR 135-100 (Appointment of Commissioned Officers and Warrant Officers of the Army): a. Paragraph 3-12a (Grade) states, persons receiving original appointments as Reserve officers of the Army with assignment to the JAG Corps will be appointed in the highest grade entitled under Title 10, USC, section 3359 (Commissioned officers: original appointment; determination of grade). b. Paragraph 3-12b (DOR) states, the DOR of an officer commissioned in the Reserve of the Army and assigned to the JAG Corps is the date of appointment. c. Table 3-3 (Appointment grades) states commissioned service credit of 3 years, a member will be appointed in the rank of 1LT. d. Table 3-4 states constructive credit of 3 years will be computed and awarded for award of the first professional law degree by a law school accredited by the American Bar Association at the time the applicant received the degree. 3. Title 10, USC, section 533 (f) (Service credit upon original appointment as a commissioned officer) states, a Reserve officer (other than a warrant officer) who receives an original appointment as an officer (other than as a warrant officer) in the Regular Army, shall— in the case of an officer not on the active-duty list immediately before that appointment as a regular officer, be appointed in the same grade and with the same DOR as the grade and DOR which the officer would have held had the officer been serving on the active-duty list on the date of the appointment as a regular officer. 4. AR 600-8-29 (Officer Promotions). paragraph 2-7 (Promotion eligibility) states to be considered for promotion by a selection board, an officer must be on the active duty list on the day the board convenes. CPTs must meet the minimum time in grade of three years for consideration for promotion to MAJ. 5. AR 635-40 (Disability Evaluation for Retention, Retirement, or Separation) paragraph 4-30c states the grade at which a Soldier is retired will be the highest grade to which the Soldier would have been promoted had it not been for the physical disability for which the Soldier was determined unfit. In general, this provision pertains to Soldiers on a promotion list. For Active Army and Reserve Component officers, upon the U.S. Army Physical Disability Agency confirming that the officer meets the requirements below, as applicable, the officer’s orders will list the higher grade at the order’s lead line for retired grade. Promotion orders are not issued. The officer is on an approved (and confirmed, if required) promotion list prior to the effective date of transfer to the retired list. 6. Title 10, USC, section 1372 states unless entitled to a higher retired grade under some other provision of law, any member of an armed force who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the temporary disability retired list under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following: a. The grade or rank in which he is serving on the date when his name is placed on the temporary disability retired list or, if his name was not carried on that list, on the date when he is retired. b. The permanent regular or reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180011556 15 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1