IN THE CASE OF: BOARD DATE: 4 March 2022 DOCKET NUMBER: AR20210010596 APPLICANT REQUESTS: correction of her record to show: 1. Back date her Date of Rank (DOR) for the rank/grade of major (MAJ)/O-4 to the Fiscal Year (FY) 2019 Army Promotion List 2. Back pay and allowances. 3. She also request a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored statement * Officer Record Brief (ORB) * DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 2 May 2018 * Biographical summary * DA Form 1059 (Service School Academic Evaluation Report) Judge Advocate Officer Basic Course * DA Form 67-9 (Officer Evaluation Report) for period ending 10 November 2011 * DA Form 67-9 for period ending 15 May 2012 * DA Form 67-9 for period ending 15 May 2013 * DA Form 67-10-1 (Company Grade Plate Officer Evaluation Report) for period ending 25 June 2015 * DA Form 67-10-1 for period ending 20 November 2015 * DA Form 67-10-1 for period ending 1 September 2016 * DA Form 67-10-1 for period ending 30 June 2017 * DA Form 67-10-1 for period ending 15 February 2018 * DA Form 67-10-1 for period ending 1 May 2019 * DA Form 1059 Judge Advocate Officer Advanced Course (JAOAC) * DA Form 67-10-1 for period ending 2 May 2020 FACTS: 1. The applicant states in pertinent part, she was incorrectly passed over for promotion to MAJ due to be educationally unqualified; however, the board did not abide by Army Regulation (AR) 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 2-8b (2) (Education substitution). The regulation states an exception to military education requirement for prior active duty officer with more than 2-years of service are deemed educationally qualified due to their active duty service. She served on active duty for 7-years and 6-months and then joined the Colorado Army National Guard (COARNG) without a break in service. The applicant stated a material error occurred when she was incorrectly deemed educationally unqualified contrary to the regulation causing her to be incorrectly passed over for promotion to MAJ/O-4. The remedy to this error is to back date her DOR to the rank of MAJ/O-4 to the FY 19 APL board results and issue back pay compensation. The applicant consulted with a G-1 official, who advised her on the ARNG promotion procedures in general, she was qualified for promotion to the next higher grade due to her service on active duty under the educational substitution provision of the regulation. On 7 August 2019, she was informed she was not selected for promotion on the FY19 MAJ promotion review on the basis of being educationally unqualified as she had not completed the JAOAC. The JAOAC is a requirement, but not necessary for promotion in accordance with AR 135-155, paragraph 2-8b (2), which states if an officer has 2-years or more of active duty service the officer is deemed educationally qualified. Had it not been for the material error the applicant would have had a reasonable chance to be recommended for promotion. 2. A review of the applicant's service record shows: a. On 6 October 2010, Orders Number A-10-028425, issued by the U.S. Army Human Resources Command (HRC), the applicant was ordered to active duty to fulfill an active duty requirement in a voluntary indefinite status, effective 24 October 2010. b. The applicant completed her oath of office on 24 October 2010 and was appointed a Regular Army (RA) officer in the Judge Advocate Corps in the rank/grade of first lieutenant (1LT)/O-2. c. On 1 June 2011, Orders Number 152-009, issued by HRC, the applicant was promoted to the rank/grade of captain (CPT)/O-3, effective on with a DOR of 10 June 2011. d. The applicant was honorably released from active duty on 2 May 2018 and assigned to the COARNG due to an unqualified resignation. DD Form 214 shows the applicant completed 7-years, 6-months, and 9-days of active service. It also shows in items: * 4a (Grade, Rate, or Rank) – CPT * 4b (Pay Grade) – O03 * 12i (Effective Date of Pay Grade) – 10 June 2011 * 14 (Military Education) – * Airborne * Intermediate Trial Advocacy Course * Judge Advocate Officer Basic Course e. On 3 May 2018, HRC notified the applicant of her appointment as a Reserve Commissioned Officer of the Army, effective 3 May 2018, in the rank of CPT. f. On 4 May 2018, Orders Number 124-033, issued by the COARNG, the applicant was appointed in the ARNG in the rank of CPT in the Judge Advocate (JA) Corps, effective 3 May 2018. g. On 26 June 2018, Special Orders Number 145, issued by the National Guard Bureau (NGB), the applicant was transferred from the U.S. Army Reserve (USAR), effective 3 May 2018, and extended a Federal recognition in the ARNG in the rank of CPT with the DOR of 10 June 2011. h. On 30 July 2019, Orders Number NG-9211-00003, issued by the NGB, the applicant was ordered to Active Duty for Operational Support – Reserve Component (ADOS-RC) for full time support, effective 30 July 2019. i. DA Form 1059, dated 19 December 2019, shows the applicant attended and completed the JAOAC during the period of 9 through 20 December 2019. j. On 19 June 2020, Orders Number NG-0171-00002, issued by the NGB, the applicant was ordered to ADOS-RC for full time support, effective 22 June 2020. k. On 17 July 2020, Orders Number 199-004, issued by the COARNG, the applicant was promoted to the rank of MAJ/O-4, effective on with a DOR of 26 June 2020. l. On 10 August 2020, Special Orders Number 236, issued by the NGB, the applicant was promoted to the rank of MAJ/O-4 and extended a Federal recognition in the ARNG effective on with a DOR of 26 June 2020. m. The applicant's service record is void of any evidence she was a non-select on any promotion selection board. 3. The applicant provides: a. DA Form 1059 that shows the applicant completed the Judge Advocate Officer Basic Course during the period of 24 October 2010 through 2 February 2011. b. Officer evaluation reports from 24 October 2010 through 2 May 2020 which shows she was rated as proficient and excels with outstanding performance and must promote. She had unlimited potential and should be promoted ahead of peers. Her senior raters rated her potential to the next higher grade as best qualified and she should be sent to the graduate course. 4. On 28 January 2022, in the processing of this case, the National Guard Bureau (NGB) provided an advisory opinion regarding the applicant's request for her DOR to be adjusted to the date of the 2019 MAJ APL Board due to non-selection due to an alleged lack of educational qualification. The advisory official stated in pertinent part, the applicant was selected by the 2020 APL Board under presumably different criteria than what the applicant requested her DOR to be adjusted to the 2019 APL, therefore a simple adjustment to her record to move her to a previous board is not appropriate. The applicant should have her file appear before a Special Selection Board (SSB) utilizing the criteria for the 2019 APL Board. If approved, then adjustment to her records would be appropriate. The advisory official recommended a partial approval of the applicant's request. Based on AR 135-155 the applicant should have been considered educationally qualified or exempt from the requirement at the time of the promotion board. Therefore, it is recommended that the applicant's file appear before a SSB to determine if she would have been promoted if properly considered. If the SSB determines she should have been promoted, then full relief should be granted. 5. On 5 February 2022, the Army Review Board Agency, Case Management Division provided the applicant a copy of the advisory opinion for review and comment. The applicant has not responded. BOARD DISCUSSION: 1. 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. 2. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial 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 determined there is sufficient evidence that shows the applicant’s record should be placed before a SSB to determine if she would have been selected for promotion to Major on an earlier date. 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 placing her record before a SSB to determine if she would have been selected for promotion to MAJ utilizing the criteria for the 2019 APL Board. This recommendation authorizes retroactive pay and entitlements if the effective date of her promotion to Major is adjusted. 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 adjusting her date of rank and effective date of promotion to Major, and retroactive pay and entitlements if not selected for promotion by the 2019 APL Board. 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. AR 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the Army National Guard of the United States (ARNGUS) and of commissioned and warrant officers (WO) of the U.S. Army Reserve (USAR). Paragraph 2-8 b (Education substitution), The following may be substituted for military education for promotion to the grades indicated; (2) An officer will be considered educationally qualified for promotion to the next higher grade under the conditions listed in paragraphs (a) through (c), below. The officer must have completed at least 2-years of consecutive Active Duty List (ADL) service as a commissioned officer but cannot be presently serving on the ADL. * The officer is being considered for promotion to a grade no more than one grade higher than his or her ADL grade * The officer was not considered for promotion to a grade higher than his or her ADL grade that resulted in a recommendation by the board that the officer not be promoted * The officer was released from the ADL as a commissioned officer within 3–years of the date the board convenes Promotion eligibility requirements for promotion to MAJ: * Time in grade - minimum 4-years with a maximum of 7-years * Military education – officer advanced course 2. National Guard Regulation (NGR) 600-100 (Commissioned Officers Federal Recognition and Related Personnel Actions), in effect at the time, prescribes policies and procedures governing the appointment, assignment, temporary Federal recognition, Federal recognition, reassignment, transfers between States, branch transfers, area of concentration designation, utilization, branch detail, attachment, and separation of commissioned officers of the ARNG. Paragraph 8-2 (Promotion criteria), promotion criteria will be based on efficiency, time in grade, time in commissioned service, demonstrated command and staff ability, military and civilian education, and potential for service in the next higher grade. Promotion will not be used solely as a reward for past performance. Promotion to MAJ eligibility requirements: * Time in grade - minimum 4-years with a maximum of 7-years * Military education – officer advanced course 3. Army Regulation (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) AR20210010596 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1