IN THE CASE OF: BOARD DATE: 29 April 2022 DOCKET NUMBER: AR20210016768 APPLICANT REQUESTS: in effect, adjustment of his lieutenant colonel (LTC) and colonel (COL) promotion dates of rank and effective dates for pay entitlements, to include entitlement to back pay and allowances based on these corrections. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), dated 9 June 2021 * memorandum, U.S. Army Human Resources Command (HRC), Subject: (Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty), dated 12 January 2006 * HRC Orders B-06-602560A01, dated 17 November 2017 * memorandum, HRC, Subject: (Advisory Opinion Regard Date of Rank Adjustment on (Applicant)), dated 17 November 2017 * letter, ARBA, dated 4 December 2017 * ABCMR Docket Number AR20160014139, dated 12 December 2017 * eight copies of DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 31 December 2017 * memorandum, HRC, Subject: (Special Selection Board (SSB) notification omission), dated 23 January 2018 * memorandum HRC, Subject: (Promotion as a Reserve Commissioned Officer of the Army (Army Regulation 135-155)), dated 31 December 2020 * HRC Orders P-04-190005, dated 21 April 2021 * letter, Defense Financial Accounting Service (DFAS), dated 30 June 2021 * DD Form 827 (Application for Arrears in Pay), undated, unsigned FACTS: 1. The applicant states, in effect, his pay should have been adjusted and he should have received pay for his grade and time served due to the promotion dates and adjusted dates of rank. This payment should include the date of his separation and the dated of retirement from the Army. 2. On 12 December 1989, the applicant was appointed a Reserve commissioned officer in the rank/grade of second lieutenant (2LT/O-1) following prior enlisted service in the Army National Guard (ARNG). 3. His Officer Record Brief shows he was promoted to the following ranks/grades: * to first lieutenant (1LT)/O-2 on 26 August 1994 * to captain (CPT)/O-3 on 3 February 1996 * to major (MAJ)/O-4 on 14 January 2000 4. On 8 November 2001, the National Guard Bureau (NGB) issued orders 312-7, ordered him to active duty in an Active Guard Reserve (AGR) status, effective 28 January 2002. 5. A memorandum, dated 12 January 2006, issued by HRC shows he was eligible for promotion to lieutenant colonel (LTC) as a Reserve Commissioned Officer not on active duty (AD). This memorandum states the date of the promotion would be either 13 January 2007, 30 September 2005 (the date Federal recognition would be extended in the higher grade), or a date following the date Federal recognition would be terminated in the current Reserve grade. 6. On 12 December 2013, the ABCMR (Docket AR201300008732) denied his request for promotion to LTC with a date of rank no later than 13 January 2007. In its decision, the Board considered an advisory opinion from the NGB which noted the applicant was on a voluntary AGR status subject to the strength limitations of Title 10, U.S.C., Section 14311 and Section 12011. The Board further stated, the applicant always had the option of leaving the AGR and becoming a drilling member of the ARNG in order to preserve his promotion. 7. On 31 May 2015, he was honorably released from AD by reason of completion of required active service. His DD Form 214 (Certificate of Release or Discharge from Active Duty), and subsequently issued DD Form 215 (Correction to DD Form 214) for this period show: * item 4a (Grade, Rate or Rank) – MAJ * item 9 (Command to which Transferred) – Maryland Army National Guard, Element Joint Force Headquarters, Fifth Regiment Armory. 8. On 31 May 2015, he was honorably released from the MDARNG by reason of resignation and transferred to control of the USAR (IRR). His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows his rank a MAJ. 9. A memorandum issued by the Secretary of the Army, on 10 June 2016, Subject: Promotion Review Board…, Calendar Year 2005 Lieutenant Colonel, ARNGUS, Army Promotion List, Competitive Category, Promotion Selection Board, directed the applicant's placement on the subject promotion list, effective immediately. 10. HRC issued orders B-06-602560, dated 23 June 2016, promoted him to LTC with a DOR of 1 June 2015. 11. On 24 August 2017, HRC issued orders C-08-711163, releasing him from USAR Control Group (Reinforcement) and assigning him to the Retired Reserve with an effective date of 1 January 2018. 12. On 17 November 2017, HRC issued orders B06-602560A01, amending HRC orders B-06-602560 with a new LTC DOR of 13 January 2007. 13. On 12 December 2017, the ABCMR (Docket AR20160014139) recommended his records be forwarded to a special selection Board (SSB) for consideration for promotion to colonel, and if selected, correcting his records to show his DOR on the date of his eligibility for COL. 14. On 31 December 2017, he was released from active duty and assigned to the USAR Control Group (Reinforcement) Inactive Ready Reserve (IRR). This DD Form 214 issued on 29 December 2017, and subsequently issued DD Form 215, dated 6 August 2018, show: * item 4a (Grade, Rate or Rank) – LTC * item 4b (Pay Grade) – O-5 * item 9 (Command to Which Transferred) – USAR Control Group (Reinforcement) * item 12i (Effective Date of Pay Grade) – 13 January 2007 15. A memorandum from HRC issued on 31 December 2020, shows he was promoted to COL and as a Reserve Commissioned Officer with an effective date of 1 June 2015. 16. On 13 May 2021, HRC reissued his DD Form 214 for the period ending 31 December 2017. It shows in: * item 4a his rank as COL * item 4b his pay grade as O-6 * item 9 he was transferred to USAR Control Group (Reinforcement) * item 12i his effective date of pay grade 1 June 2015 17. The applicant provides a letter from DFAS, dated 30 June 2021, stating their office reviewed the directive AR20160014139 issued by the Office of the Secretary of the Army, that corrected his military records. He was informed that no monetary benefits were due to him at that time. 18. On 23 February 2022, HRC provided an advisory opinion in response to the applicant's request. It reads, in part: a. The applicant's request has no merit. He was awarded the correct effective date and dates of rank as a transfer from the National Guard to the USAR Individual Ready Reserve (IRR) in accordance with Army Regulation 135-155, Chapter 4-21(c) and Chapter 4-21(d) for both LTC and COL respectively. b. The LTC promotion order, B-06-602560, awarded the effective date for pay purpose as 1 June 2015, the date of transfer to the IRR. The USAR cannot award pay during the time he was a member of the National Guard. His DOR of LTC (The maximum time in grade for LTC) was amended from his date of rank of 1 June 2015 to 13 January 2007, based on the fact he was an AGR, ARNG member that was past the maximum time in grade upon transfer to the USAR. c. His manual promotion letter, awarded the effective date for pay purposes as 1 June 2015, his date of transfer to the IRR. The USAR cannot award pay during the time he was a member of the ARNG. His DOR of COL as 12 January 2013 (maximum time in grade for COL) was based on the fact he was an AGR, ARNG member that was past the maximum time in grade upon transfer to the USAR. 19. On 7 March 2022, the applicant responded by letter to the HRC advisory opinion. It reads, in part: a. The Army Regulation governing this request is Army Regulation 37-104-4 (Military Pay and Allowance Policy), Chapter 3, basic pay 3-1. The authority states Soldiers are paid per Department of Defense Financial Management Regulation (DODFMR), Volume 7A, Chapter 1, and tables 1-1 through 1-15. Soldiers are entitled to receive pay according to their pay grades and years of service if on active duty in a pay status. b. This regulation applies the Active Army, Army National Guard, and USAR. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was/was not 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 insufficient evidence that shows there was an error or injustice in this case. 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. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) National Guard of the U.S. Army Reserve Officers, this regulation provides policy for selecting and promoting commissioned officers of both the Army National Guard of the United States (ARNGUS) and the U.S. Army Reserve (USAR), and warrant officers of the USAR. This regulation covers promotion eligibility and qualification requirements, board schedules, and procedures, and procedures on processing selection board recommendations. a. Chapter 4-21(c) Promotion of unit officer selected by mandatory boards who transfer to a nonunit status to accept promotion. Part (4) provides that officers who transfer from the ARNGUS to USAR nonunit status on or after reaching maximum TIG are promoted effective on the date of transfer to a nonunit status. b. Chapter 4-21(d) Promotion of AGR officers. AGR officers selected by a mandatory board will be promoted provided they are assigned/attached to a position in the higher grade. An AGR officer who is selected for promotion by a mandatory promotion board, but who is not assigned/attached to a position in the higher grade will be promoted on the date of assignment/attachment to a higher graded position or the day after release from AGR status. The date of rank will be the date the officer attained maximum TIG or the date on which assigned/attached to a position in the higher grade, whichever is earlier. 2. Army Regulation 37-104-4 (Military Pay and Allowances Policy), Chapter 3-1 provides Soldiers are paid per DODFMR, Vol. 7A, chapter 1, and tables 1-1 through 1-15. Also see Army regulation (AR) 612-201. The law prescribes the pay of soldiers. Soldiers are entitled to receive pay according to their pay grades and years of service if (1) On active duty in a pay status and (2) Not prohibited by law from receiving such pay. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210016768 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1