IN THE CASE OF:  

		BOARD DATE:  19 August 2021

		DOCKET NUMBER:  AR20210006915


APPLICANT REQUESTS:  correction of his record to show his date of rank for 
promotion to the rank/grade of captain (CPT)/O-3 as 10 September 2016.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	Self-Authored Statement
*	NGB Form 0122E (Departments of the Army and the Air Force National Guard 
Bureau Extract), Special Orders Number 103, 25 May 2016
*	NGB Form 0122E, Special Orders Number 291, 11 October 2019
*	Record of Proceedings in Docket Number AR20040006332 of the Army Board 
for Correction of Military Records, 14 April 2005
*	Excerpt from the Judge Advocate Legal Services Publication 1-1 (Personnel 
Policies), 1 May 2018
*	DA Form 1059 (Service School Academic Evaluation Report), The Judge 
Advocate Officer Basic Course (JAOBC), 8 September 2016
*	DD Form 214 (Certificate of Release or Discharge from Active Duty), for the 
period ending 8 September 2016
*	Four DA Forms 67-10-1 (Company Grade Plate (O1 – O3; WO1 – CW2) Officer 
Evaluation Report), for the periods ending 8 September 2017, 8 September 
2018, 31 December 2019, and 23 August 2020

FACTS:

1.  The applicant states he was promoted to CPT with an effective date of 9 September 
2019 based upon almost 5 years’ time in grade from his first lieutenant (1LT) date of 
rank of 10 September 2014. He was in an authorized position in the higher grade and 
granted Federal Recognition with an effective date of 10 October 2019. Since only 2 
years’ time in grade as a 1LT are required for promotion to CPT and upon completion of 
JAOBC (Judge Advocate Officer Basic Course) the educational requirement is met; he 
should have been immediately promotion to CPT/O-3 with a date of rank of 10 
September 2016 absent some unfavorable action which the record does not indicate. 
He adds: 

	a.  He was appointed as a 1LT in the Army National Guard (ARNG) in the Judge 
Advocate General’s Corps (JAGC) on 10 March 2016. He was granted Federal 
Recognition effective 25 May 2016 for the purpose of initial appointment with a 1LT date 
of rank of 10 September 2014.

	b.  He was promoted to CPT effective 9 September 2019 in an authorized position at 
the higher grade and granted Federal Recognition for the purpose of promotion effective 
11 October 2019.

	c.  All judge advocate (JA) slots in the ARNG are CPT/O-3 or higher. 1LT is simply 
the rank provided at initial appointment to non-prior service candidates upon accession; 
based on the constructive service credit provided for 3 years of law school.

2.  The applicant provides:

*	his Federal Recognition order to 1LT, dated 25 May 2016, with an effective date 
of 10 March 2016 and effective date of rank as 10 September 2016
*	his Federal Recognition order to CPT, dated 11 October 2019, with an effective 
date of 9 September 2019 and effective date of rank as 9 September 2019
*	a previous ABCMR Record of Proceedings for an applicant requesting his 1LT 
date of rank be adjusted
*	an excerpt from the JALS Pub 1-1, specifically, Paragraph 3-1 (Direct 
Commission and Order to Active Duty) and Paragraph 3-2 (Initial Active Duty 
Grade)
*	his academic evaluation report, which shows he completed JAOBC on  
8 September 2016
*	his officer evaluation reports, which show his duties, performance evaluations, 
and potential
 
3.  A review of the applicant’s service records shows:

	a.  Having prior enlisted service in the U.S. Air Force, the applicant was appointed 
as a Reserve commissioned officer on 10 March 2016 in the rank/grade of 1LT/O-2, and 
executed an oath of office.

	b. The NGB published orders on 25 May 2016 extending him Federal Recognition 
for initial appointment as a 1LT, with an effective date of 10 March 2016 and effective 
date of rank as 10 September 2014.

	c.  The applicant attended and completed JAOBC from 27 June 2016 to  
9 September 2016.

	d.  His record contains a DD Form 214, for the period ending 9 September 2016, 
which shows he was honorably released from active duty training and transferred to the 
Joint Force Headquarters – NJ.

	e.  On 11 October 2019, the ARNG published Special Orders 291, which shows the 
applicant was promoted to the rank/grade of CPT/O-3 with an effective date of rank of  
9 September 2019.

	f.  On 17 October 2019, the NJARNG published orders number 0000037306.00, 
which shows, in pertinent part:

*	Action Type:  Promotion
*	Paragraph/Line Number:  003/13
*	Position Number:  03323283
*	Duty Position Title:  Deputy Chief Administrative Law Branch
*	Promotion Rank:  CPT
*	Promotion Rank Entry Date:  9 September 2019
*	Promotion Grade Entry Date:  9 September 2019
*	Additional Instructions:  Promotion is not valid and is not effective if the 
Soldier is not in a promotable status on the effective date of promotion

	g.  The applicant served in Iraq from 10 July 2020 to 10 March 2021. He is currently 
serving in the ARNG.

4.  By statute, the effective date of a promotion of a reserve commissioned officer of the 
Army who is extended Federal Recognition in the next higher grade in the ARNG under 
section 307 or 310 of Title 32 shall be the date on which such Federal recognition in that 
grade is so extended. If the Secretary concerned determines that there was an undue 
delay in extending Federal recognition in the next higher grade in the ARNG, 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.

BOARD DISCUSSION:

1.  After reviewing the application and all supporting documents, the Board found relief 
is not warranted.

2.  The Board found insufficient evidence to support a conclusion that the applicant was 
assigned to a CPT position prior to 9 September 2019 and also found insufficient 
evidence to support a conclusion that the NJARNG erred in this case.  The Board 
agreed that the applicant would not have been promoted until a CPT position became 
available.  In the absence of evidence indicating the applicant was serving in a CPT 
position prior to 9 September 2019, the Board determined his date of rank is not in error 
or unjust.  


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 624 (Promotions:  how made) states, in pertinent part, 
appointments under this section shall be made by the President, by and with the advice 
and consent of the Senate, except that appointments under this section in the grade of 
first lieutenant or captain, in the case of officers of the Army, Air Force, or Marine 
Corps, or lieutenant (junior grade) or lieutenant, in the case of officers of the Navy, shall 
be made by the President alone.

2.  Title 10 U.S. Code, section 741 (Rank:  commissioned officers in the armed forces), 
states, in pertinent part, the Secretary concerned may adjust the date of rank of an 
officer appointed under section 624(a) of this title to a higher grade that is not a general 
officer or flag officer grade if the appointment of that officer to that grade is delayed 
from the date on which (as determined by the Secretary) it would otherwise have been 
made by reason of unusual circumstances (as determined by the Secretary) that cause 
an unintended delay in (i) the processing or approval of the report of the selection board 
recommending the appointment of that officer to that grade; or (ii) the processing or 
approval of the promotion list established on the basis of that report.

3.  Title 10 U.S. Code, section 14308 (Promotions:  how made) provides:

	a.  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.

	b.  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 under paragraph (a) above may be adjusted to a date 
determined by the Secretary concerned, but not earlier than the effective date of the 
State promotion.

4.  Department of Defense Instruction 1310.01 (Rank and Seniority of Commissioned 
Officers) provides that 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 U.S. Code, section 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 and will notify the 
Under Secretary of Defense for Personnel and Readiness (USD (P&R)) of adjustments 
exercised under this authority.  The notification will include the name of the officer(s) 
and a discussion of the reasons for the adjustment of the date of rank.

5.  National Guard Regulation 600-100 (Commissioned Officers – Federal Recognition 
and Related Personnel Actions), in effect at the time, provides procedures for 
processing all applications for Federal recognition.  Paragraph 2-2(b) states the 
effective date of Federal recognition for original appointment is that date on which the 
commissioned officer executes the oath of office in the State.
//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20210006915


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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