IN THE CASE OF: 

		BOARD DATE:  15 June 2022

		DOCKET NUMBER: AR20210014072


APPLICANT REQUESTS:  correction of his date of rank (DOR) to first lieutenant 
(1LT)/O-2 from 1 June 2005 to 10 August 2004.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	Orders Number 158-011 dated 7 June 2005

FACTS:

1.  The applicant did not file within the three-year time frame provided in Title 10, United 
States Code, section 1552(b); however, the Army Board for Correction of Military 
Records (ABCMR) 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 in pertinent part that his DOR to 1LT of 1 June 2005 is incorrect 
and should be changed to 10 August 2004 as reflected on his promotion orders. He 
argues that this error has resulted in a delay of promotion eligibility throughout his 
career causing him to be considered for promotion with the subsequent year group. He 
recently received the corrected orders reflective of the requested 10 August 2004 DOR.

3.  A review of the applicant's available personnel records reflects the following: 

   a.	On 6 January 2003, the applicant was appointed a Regular Army commission 
within the Military Police (MP) Corp and subsequently ordered to active duty on  
10 February 2003. 

   b.	On or about 8 October 2004, the applicant received a "Referred" DA Form 67-9 
(Officer Evaluation Report) covering the period of 17 September 2003 through 16 
September 2004. He was a second lieutenant (2LT)/O-1 during this period. The 
applicant's senior rater recommended that he not be promoted due to his marginal 
performance of duty. The applicant declined to make comments.

   c.	On or about 3 January 2005, the applicant received a "Referred" DA Form 67-9 
covering the period of 16 September 2003 through 31 December 2004. He was a 2LT 
during this period. The applicant's senior rater recommended that he not be promoted 
due to his satisfactory performance of duty. The applicant declined to make comments.

   d.	On 7 June 2005, U.S. Army Human Resources Command (HRC) issued Orders 
Number 158-011 promoting the applicant to 1LT effective 10 August 2004 with a DOR 
of 10 August 2004. 

   e.	On or about 17 January 2006, the applicant received a DA Form 67-9 covering 
the period of 1 January 2005 through 31 December 2005. He was a 1LT during this 
period with a DOR of 1 June 2005. The applicant's senior rater rated him as "Best 
Qualified" and further referred to him as the best Executive Officer (XO) within the 
battalion.

   f.	On 3 February 2007, HRC issued Orders Number 044-054 promoting the 
applicant to captain (CPT)/O-3 effective 1 February 2007 with a DOR of 1 February 
2007.

   g.	On 17 September 2013, HRC issued Orders Number 260-024 promoting the 
applicant to major (MAJ)/O-4 effective 1 October 2013 with a DOR of 1 October 2013.

   h.	On 21 September 2020, HRC issued Orders Number 265-013 promoting the 
applicant to lieutenant colonel (LTC)/O-5 effective 1 October 2020 with a DOR of 
1 October 2020.

4.  On 16 March 2022, the HRC, Chief, Officer Promotions Board Announcements, 
Support and Promotion Orders provided an advisory opinion in the processing of this 
case. The advisory official stated: 

	a.  Based on a review of the information provided, their records, laws, regulations, 
policies and the systems available to HRC Officer Promotions, they found it difficult to 
affirm the validity of the order and request to adjust the applicant's 1LT DOR after nearly 
two decades have passed, to include but not limited to several years of records review 
and subsequent years of promotion considerations with no challenge or question prior 
to this year (at HRC). Unfortunately, there are no employees currently assigned to 
officer promotions from 2004 who may be able to provide additional information for this 
request, furthermore, the applicant's Army Military Human Resource Records (AMHRR) 
have been made unavailable for subsequent review since their initial analysis of his 
AMHRR (which is customary and part of their process to provide the best possible 
responses or opinion to such requests).

	b.  Nonetheless, it is noted that the applicant received a “Do Not Promote” referred 
OER as a 2LT, signed by him for around or about the time in question, in which they 
retrieved before his records were made unavailable. The applicant's following OER also 
signed by him, reflects a 1LT date of rank of 1 June 2005. As such, they could only 
speculate that there may have been more than a reasonable chance that an August 
2004 promotion order was published, yet rescinded upon notification of the error from 
the applicant's command or receipt of the referred “Do Not Promote” OER (prior to any 
change in monies or entitlements by a Finance and Accounting Officer.

5.  On 28 March 2022, the applicant was provided with a copy of the advisory opinion 
and afforded 15 days to provide comments. As of 13 June 2022, the applicant had not 
responded. 

BOARD DISCUSSION:

1. After reviewing the application, all supporting documents, and the evidence found 
within the military record, the Board found that relief was not warranted. The Board 
carefully considered the applicant's record of service, documents submitted in support 
of the petition and executed a comprehensive and standard review based on law, policy 
and regulation.  Upon review of the applicant’s petition, available military records and 
HRC, Chief, Officer Promotions Board Announcements, Support and Promotion Orders 
advisory opinion, the Board concurred with the advising official finding it difficult to
affirm the validity of the order and request to adjust the applicant’s 1LT DOR after nearly
two decades have gone by, to include but not limited to several years of records review
and subsequent years of promotion considerations with no challenge or question prior
to this year. 

2. The Board determined, based on the HRC opinion that employees currently assigned 
to officer promotion from that time period in 2004 are no longer there at HRC. 
Furthermore, the Board found that the applicant’s Army Military Human Resources 
Records (AMHR) have been made unavailable for subsequent review since the initial 
analysis of the applicant’s AMHRR (which is customary and part of the HRC process to 
provide the best possible responses or opinion to such requests). However, the Board 
noted that the applicant received a “DO NOT PROMOTE “referred OER as a 2LT 
(THRU date 20041231) signed by him for around or about the time in question, in which 
we retrieved before his records were made unavailable. The applicant’s following OER 
also signed by him reflects a 1LT date of rank of 1 June 2005 (THRU date 20051231).
The Board determined based on the preponderance of evidence, relief was not 
warranted. 


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.


		  
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, United States Code, section 1552(b), provides that applications for 
correction of military records must be filed within 3 years after discovery of the alleged 
error or injustice. This provision of law also allows the ABCMR to excuse an applicant's 
failure to timely file within the 3-year statute of limitations if the ABCMR determines it 
would be in the interest of justice to do so.

2. Army Regulation (AR) 600-8-29 (Officer Promotions) provides policies and 
procedures governing promotion of Army Commissioned and Warrant Officers on the 
Active Duty List (ADL). Commissioned officers are promoted from promotion lists in 
order of seniority as additional Officers are needed within each competitive category. 
Unless an officer declines a promotion in writing, he or she is considered to have 
accepted the promotion on the effective date announced in the promotion order. 

   a.	Paragraph 1-19 (Non-Promotable Status) provides that an officer’s promotion is 
automatically delayed (that is, the officer is not promoted in spite of the publication of 
promotion orders) when the officer is the recipient of a referred Academic Evaluation 
Report (AER), a referred Officer Evaluation Report (OER), or a Memorandum of 
Reprimand (directed for filing in the official military personnel file before the date he or 
she would otherwise have been promoted) which was not considered by the board that 
selected him or her for promotion.

   b.	Paragraph 1-20 (Delay of Promotion) provides that 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. If within 6 months after the effective date of 
promotion, new information results in a determination by HQDA that an officer was, on 
the effective date of the promotion, in a non-promotable status, that promotion will be 
deemed to have been automatically delayed. In such a case, the officer’s promotion is 
void and the order 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 
delay had not been imposed.

   c.	Paragraph 1-21 (Date of Rank and Effective Date of Promotion after a Delay) 
provides that when a delay in promotion is ended, the promotion approval authority will 
determine if the officer was in fact unqualified for promotion during all or part of the 
delay and will adjust the DOR and effective date of promotion accordingly.

   d.	Paragraph 1-22 (Revocation of Promotion Orders and De Facto Status) provides 
that a promotion order will be revoked when an officer declines promotion or when the 
commander who executed the promotion, or a higher commander, determines that the 
promotion is void because the officer was in a non-promotable status on the effective 
date of the promotion

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20210014072


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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