IN THE CASE OF: BOARD DATE: 17 August 2020 DOCKET NUMBER: AR20190012755 APPLICANT REQUESTS: adjustment of his Date of Rank (DOR) to Major (MAJ) / O-4 to reflect September 2017. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Order# NG-7254-00001 dated 11 September 2017 * Order# NG-7254-00001A02 dated 11 September 2017 * FY17 Reserve Component MAJ Army Promotion List Promotion Selection Board (PSB) Release dated 12 September 2017 * Order# NG-8265-00015 dated 22 September 2018 * Secretary of the Army Memorandum for the Deputy Chief of Staff - Promotion Review Board RP1804-23, Fiscal Year 2017, MAJ Army National Guard (ARNG) of the United States, Army Promotion List (APL), Competitive Category (CC), PSB dated 6 December 2018 * Order# NG-8265-00015A01 dated 13 December 2018 * DA Form 268 (Report to Suspend Favorable Personnel Actions – Flag) dated 20 March 2019 * Secretary of Defense letter dated 10 May 2019 * Order# 170-532 dated 19 June 2019 FACTS: 1. The applicant states that in accordance with the Secretary of the Army (SECARMY) memorandum dated 6 December 2018 he was supposed to be promoted in September of 2017. He contests that the SECARMY memorandum articulates that “effective immediately, I retain Captain A_ on the FY17 MAJ, ARNG APL CC PSB recommended promotion list, pursuant to Army Regulation (AR) 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) paragraph 4- 11 (Selected for Promotion); he was not promoted until 5 June 2019. He adds that paragraph 4-11 further provides that “if the determination is made more than 6 months after the effective date of the promotion, the Officer will be deemed to have been in a promotable status on the effective date of the promotion and treated as though the involuntary delay had not been imposed. This is unless the Officer possessed a non-waiverable statutory disqualification for promotion consideration or selection.” The aforementioned guidance was not followed. 2. A review of the applicant’s available personnel records reflects the following: a. After previously serving as an enlisted Soldier within the United States Army Reserve (USAR), on 3 November 2005 he received a Reserve commission at the rank of Second Lieutenant (2LT) /O-1. b. On 14 December 2005 (Special Order# 348 AR) was issued providing Federal recognition of his transfer from the USAR into the ARNG with a 29 July 2005 DOR to 2LT. c. On 18 July 2008 he was promoted by the State to the rank of First Lieutenant (1LT) / O-2 with an effective DOR of 10 June 2008. Federal recognition of promotion was extended on the same day (Special Order# 181 AR). d. On 21 October 2010 (Order# 294-560) he was promoted by the State to the rank of Captain (CPT) / O-3 with an effective DOR of 14 October 2010. e. On 1 March 2011 (Special Order# 42 AR) Federal recognition of promotion to CPT was extended with an effective DOR of 25 February 2011. f. On 28 August 2015 he completed the Logistics Captains Career Course. g. On 10 December 2016 he obtained his Master’s Degree. h. On 11 September 2017 Order# NG-7254-00001 was issued ordering him to Active Duty for Operational Support (ADOS) effective 24 August 2017. His orders were to end on 30 September 2018. i. On 12 September 2017 he was notified by the State that he had been selected by the Department of the Army (DA) Mandatory Promotion Board for promotion as a USAR Officer. This notification further provided that in order to be promoted by the ARNG, he would need to be selected for promotion by the ARNG Career Management Board along with his current DA Mandatory Promotion Board Selection. If he elected to accept the promotion, he would be transferred into the USAR (IRR). If he elected to delay the promotion for 1-3 years, he would not be discharged from the ARNG. At that time, if not promoted in the State, he would be required to transfer to the USAR and accept promotion or decline promotion and be removed from the promotion list. j. On 22 September 2018 Order# NG-8265-00015 was issued retaining him on active duty (ADOS) from 1 October 2018 through 30 September 2019. This order was later amended (Order# NG-8265-00015A01) to reflect an end date of 6 January 2019 k. On 6 December 2018 the SECARMY elected to retain him on the FY 17 MAJ, ARNG APL CC, PSB recommended promotion list. l. On 19 June 2019 (Order# 170-532) was issued amending Order# 169-517 dated 18 June 2019 to reflect a change in his DOR to MAJ to reflect 5 June 2019 rather than 25 August 2017. Order# 169-517 is not available for review within the Interactive Personnel Electronic Records Management System (IPERMS) nor the Integrated Web Systems (IWS). Based upon the amended order content, this order appears to be related to the applicant being selected for promotion by the State. m. On 28 June 2019 (Special Order# 178) Federal recognition of promotion to MAJ was extended with an effective DOR of 5 June 2019. n. On 13 September 2019 (Order# NG-9256-00007) was issued retaining him on active duty from 1 October 2019 through 8 September 2020. 3. The applicant provides the following: a. Order# NG-7254-00001 dated 11 September 2017 see 2g. above. b. Order# NG-7254-00001A02 dated 11 September 2017 reflective of Order# NG- 7254-00001 being amended to reflect a tour length of 287 days with a new start date of 9 September 2017. c. FY17 Reserve Component MAJ Army Promotion List Promotion Selection Board Release dated 12 September 2017 reflective of the applicants name appearing on the “Non-Active Guard Reserve and ARNG Competitive Categories” list. d. Order# NG-8265-00015 dated 22 September 2018 – see 2i. above. e. Secretary of the Army Memorandum for the Deputy Chief of Staff - Promotion Review Board RP1804-23, Fiscal Year 2017, MAJ Army National Guard (ARNG) of the United States, Army Promotion List (APL), Competitive Category (CC), Promotion Selection Board (PSB) dated 6 December 2018 reflective of the applicant being retained on the on the FY 17 MAJ, ARNG APL CC, PSB recommended promotion list. f. Order# NG-8265-00015A01 dated 13 December 2018 – see 2i. above. g. DA Form 268 (Report to Suspend Favorable Personnel Actions – Flag) dated 20 March 2019 reflective of the flag imposed on 9 August 2017 being lifted; Flag code “F” (HQDA imposed flag – Delay of or Removal from Selection list) was previously imposed – document reflects that the flag was erroneous. h. Secretary of Defense (SECDEF) letter dated 10 May 2019 reflective of the applicant being appointed to the rank of MAJ by the acting SECDEF under the provisions of Title 10, United States Code (U.S.C.) section 12203. i. Order# 170-532 dated 19 June 2019 – see 2k. above. 4. See applicable regulatory guidance below under REFERENCES. BOARD DISCUSSION: After review of the application and all evidence, including the applicant’s statement, the Board determined there is insufficient evidence to grant relief. The Board carefully considered the applicant’s assertion that his Date of Rank (DOR) to Major (MAJ)/O-4 should be adjusted to reflect September 2017 because the Secretary of the Army memorandum, dated 6 December 2018, retained him on the FY 17 MAJ, ARNG APL CC, PSB recommended promotion list. However, the Board found no error, inequity, or injustice in the applicant’s case. The applicant’s records contain a memorandum dated 12 September 2017 that advised the applicant that if he elected to accept the promotion, he would be transferred into the USAR (IRR). If he elected to delay the promotion for 1-3 years, he would not be discharged from the ARNG. If, after three years, he was not promoted in the State, he would be required to transfer to the USAR and accept promotion or decline promotion and be removed from the promotion list. From the applicant’s NGB ADOS orders dated 11 September 2017 and 22 September 2018, the applicant did not join the IRR and remained in the ARNG. Therefore, the applicant would have been promoted when promoted in the State ARNG. The record is void of and the applicant did not provide promotion orders from the State ARNG or a State promotion list. The record only contains a 19 June 2019 amendment that reflects a change in the applicant’s DOR to MAJ to reflect 5 June 2019 rather than 25 August 2017. The original order (Order# 169-517) is not available for review within the Interactive Personnel Electronic Records Management System (IPERMS) nor the Integrated Web Systems (IWS). Therefore, the Board found insufficient evidence for granting the applicant's request. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :XX 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. 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, U.S. Code, Section 14308(f) (Effective Date of Promotion after Federal Recognition) states that the effective date of a promotion of a Reserve commissioned Officer of the Army or the Air Force who is extended Federal recognition in the next higher grade in the Army National Guard or the Air National Guard under section 307 or 310 of title 32 shall be the date on which such Federal recognition in that grade is so extended. Further stated is that if the Secretary concerned determines that there was an undue delay in extending Federal recognition in the next higher grade in the Army National Guard or the Air National Guard to a Reserve commissioned officer of the Army or the Air Force, and the delay was not attributable to the action (or inaction) of such Officer, the effective date of the promotion concerned may be adjusted to a date determined by the Secretary concerned, but not earlier than the effective date of the State promotion. 2. National Guard Regulation (NGR) 600-100 (Commissioned Officer Federal Recognition and Related Personnel Activities) states that a commissioned Officer who has been promoted by the State and extended Federal Recognition in the higher grade will be concurrently promoted to the higher grade in the Reserve of the Army with assignment to the Army National Guard. Federal recognition will be extended by the NGB to those Officers found qualified by the board and approved by the Secretary of the Army after Senate confirmation of appointment. The effective date of Federal recognition will be the date of Senate confirmation if vacancies exist within the statutory limitation prescribed by Title 10, U.S. Code, section 3218, or, if no vacancies exist at that time, on the date such vacancies occur. 3. AR 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) states that the minimum Time in Grade (TIG) for promotion to Major (MAJ) is 4 years with 7 years being the maximum TIG. Paragraph 4-11 provides that an officer’s promotion will be automatically delayed when the officer is under, or should be under, suspension of favorable personnel actions. A promotion will not be delayed under this paragraph unless the officer is given written notice of the grounds for delay before the intended date of promotion or as soon as possible thereafter. If promotion is delayed, the officer must be given an opportunity to make a written statement to the Secretary of the Army for his or her consideration. a. Automatic delays under this provision will be resolved within 6 months of the date the officer would have been promoted. An officer’s promotion will not be delayed more than 6 months unless the SA, or the Secretary’s designee, grants a further delay. Additionally, a “further period of delay” is deemed to have been granted in any case that has been referred to a promotion advisory board; the delay in such cases extends until final action. b. If within 6 months after the effective date of promotion, new information results in a determination by Cdr, PERSCOM, Chief, Office of Promotions (RC) that an officer was, on the effective date of the promotion, in a nonpromotable status, that promotion will be deemed to have been automatically involuntarily delayed. In such a case, the officer’s promotion is voided and the memorandum announcing the promotion will be revoked. The officer must be immediately notified of this fact. Also, immediate steps will be taken to resolve the case or seek further delay. However, if the determination is made more than 6 months after the effective date of the promotion, the officer will be deemed to have been in a promotable status on the effective date of the promotion and treated as though the involuntary delay had not been imposed. This is unless the officer possessed a nonwaivable statutory disqualification for promotion consideration or selection. c. Paragraph 4-18 (Date of rank and Effective date of promotion after Involuntary Delay) provides that only the Secretary of the Army is authorized to determine whether an officer was unqualified for promotion during any part of an involuntary delay of promotion. Accordingly, except as provided herein, only the Secretary of the Army may determine whether an adjustment must be made to an officer’s date of rank and effective date of promotion. For commissioned officers, the DOR and effective date of promotion following an involuntary delay may be earlier than the date of the promotion memorandum. However, it cannot be earlier than the approval date of the board that selected the officer unless the officer concerned obtains correction of his or her records from the Army Board for Correction of Military Records. 4. 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. 5. Title 10, United States Code (U.S.C.) section 12203 provides that appointments of Reserve officers in commissioned grades of Lieutenant Colonel or below, except commissioned warrant officer, shall be made by the President alone. Subject to the authority, direction, and control of the President, the Secretary of Defense may appoint as a Reserve commissioned officer any regular officer transferred from the Active-Duty List of an armed force to the Reserve Active-Status List of a Reserve Component under section 647 of this title, notwithstanding the requirements previously listed. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190012755 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1