IN THE CASE OF: BOARD DATE: 20 January 2023 DOCKET NUMBER: AR20220006388 APPLICANT REQUESTS: to adjust his Date of Rank (DOR) and effective date of promotion for the rank/grade of colonel (COL)/O-6 due to missing military education requirements that led to his non-selection for promotion. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant states: a. He is requesting reconsideration of his DOR. He was passed over for promotion in 2019 to the rank of COL. It was noted that he would have been promoted "save" for not being educationally qualified. After some investigation and rewording of constructive credit, he was selected for promotion by a Special Selection Board (SSB) in 2021. He requests that the Board review and reconsider making his DOR 2019 instead of 2021. He believes that had the board in 2019 recognized his constructive credit, he would have been promoted to COL/O-6 at that time. b. He believes that the correction should be made because the original Department of the Army (DA) board stated that he would have been promoted except that he was educationally unqualified. He believes that they [the board] did not realize he had been awarded constructive credit as the normal education form was not in the packet and the constructive credit was in a different location within the packet which led to the decision that was made to non-select him. 2. A review of the applicant's official military records show the following: a. On 1 February 2005, a memorandum from the National Guard Bureau (NGB), shows the applicant's request for the award of constructive credit for the Army Medical Department (AMEDD) Reserve Component Officer Basic Course was approved. b. On 14 May 2005, DA Form 71 (Oath of Office – Military Personnel) shows the applicant executed an oath of office and was appointed as a Reserve commissioned officer in the rank/grade of second lieutenant (2LT)/O-1. c. NGB Form 337 (Oaths of Office) shows he completed an additional oath of office in the Army National Guard (ARNG) in the rank/grade of captain on 14 May 2005. d. On 19 July 2005, the ARNG, Joint Force Headquarters issued Orders Number 200-022, appointing the applicant in the ARNG as a CPT in the Medical Corps (MC), effective 14 May 2005. e. DA Form 5074-1-R (Record of Award of Entry Grade Credit (Health Services Officers)) dated 30 August 2005 shows, in pertinent part, the applicant was granted credit for his Doctor of Osteopathic Medicine basic qualifying degree on 14 May 2005. The inclusive dates of attendance atwere 9 August 2001 to May 2005. He was awarded 4 years constructive credit. The applicant was granted 4 years total constructive credit and entry grade credit. The constructive credit qualified him for the rank/grade of CPT/O-3 f. On 15 September 2005, the NGB published Special Orders Number 266 AR extending Federal Recognition and appointing the applicant as a CPT in the ARNG, effective on with a DOR of 14 May 2005. g. On 29 December 2014, by memorandum, the NGB notified the ARNG, Adjutant General and the applicant that he was promoted to the rank/grade of lieutenant colonel (LTC) in the Reserve of the Army for service in the ARNG effective 23 December 2014. h. On 23 September 2021, a memorandum shows the U.S. Army Human Resources Command notified the applicant that he was considered and selected for promotion by a SSB 2(special section board) to COL, under the criteria and instructions established for the regularly constituted Fiscal Year (FY) 2019, COL ARNGUS, promotion selection board. i. On 12 December 2021, the NGB published Special Orders Number IP-5939 extending the applicant Federal recognition for promotion to COL with an effective date and date of rank as 29 July 2021. j. On 17 December 2021, the OKARNG, Army Element Joint Force Headquarters published Orders Number promoting the applicant to COL/O-6, effective 29 July 2021. 3. On 17 November 2022, the NGB, Chief, Special Actions Branch, provided an advisory opinion for this case and recommended approval of the applicant's requests to adjust his DOR and effective date of promotion for the rank of COL/O-6 due to missing military education requirements that led to his non-selection for promotion. The advisory official states: a. The applicant was considered for promotion on the fiscal year 2019 (FY19) COL Army Medical Department (AMEDD) DA Board, and non-selected. Reason provided by the board was lack of required military education (AMEDD Officer Basic Course). The applicant received constructive credit for the AMEDD Officer Basic Course in February 2005. This credit made him educationally qualified for promotion. The approval memorandum for the constructive credit was present in his file during consideration. b. A SSB request for the applicant's FY19 COL AMEDD DA Board file was submitted in August 2019, with approval granted and Senate confirmation for promotion to COL on 29 July 2021. The State was notified of the SSB approval on 23 September 2021, and the promotion request was submitted to NGB to publish Federal Recognition Orders on 1 October 2021. Although the FY19 COL AMEDD DA Board was approved on 2 Jul 2019 and Senate confirmed on 31 July 2019, the applicant's promotion could only be backdated to his Senate Confirmation Date of 29 July 2021, per Title 10 United States Code (USC) section 12203(a) and Army Regulation (AR) 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 4-10. c. Based on the circumstances identified, it is the recommendation of this office that the applicant be granted full relief to include DOR and effective date for pay, effective 31 July 2019. This date places him with his peers and grants full relief. The ARNG Federal Recognition Section concurs with this recommendation. The Army National Guard concurs with this recommendation. 4. On 9 December 2022, the applicant was provided a copy of the advisory opinion for comment or rebuttal. He did not respond. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The applicant's contentions, the military record, and regulatory guidance were carefully considered. a. The Board noted that the applicant was considered for promotion on the fiscal year 2019 (FY19) COL AMEDD DA Board, and non-selected due to lack of required military education (AMEDD Officer Basic Course). However, the applicant had received constructive credit for the AMEDD Officer Basic Course in February 2005. This credit made him educationally qualified for promotion. The approval memorandum for the constructive credit was present in his board file during consideration. b. An SSB considered and selected him for promotion, with approval granted and Senate confirmation for promotion to COL on 29 July 2021. The State was notified of the SSB approval on 23 September 2021, and the promotion request was submitted to NGB to publish Federal Recognition Orders on 1 October 2021. Although the FY19 COL AMEDD DA Board was approved on 2 Jul 2019 and Senate confirmed on 31 July 2019, the applicant's promotion could only be backdated to his Senate Confirmation Date of 29 July 2021 (10 USC section 12203(a)). The Board determined that based on the available evidence, the applicant’s date of ran and effective date of promotion should be adjusted to 31 July 2019. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army and Army National Guard records of the individual concerned be corrected by amending NGB Special Orders Number IP-5939, dated 12 December 2021, to show his date of rank and effective date of promotion to COL as 31 July 2019. 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, USC, section 12203(a) (Commissioned Officers: appointment, how made; term) states, appointments of eserve officers in commissioned grades of lieutenant colonel and commander or below, except commissioned warrant officer, shall be made by the President alone. Appointments of reserve officers in commissioned grades above lieutenant colonel and commander shall be made by the President, by and with the advice and consent of the Senate, except as provided in section 624, 12213, or 12214 of this title. 2. AR 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 4-10 (Promotion requiring U.S. Senate confirmation) states, officers selected for promotion to the grade of COL will require Senate confirmation (Title 10 USC 12203(a)). a. The Office of Promotions (Reserve Component (RC)) will produce lists of officers recommended for appointment or promotion to COL by mandatory, position vacancy, special selection, or promotion advisory boards (see chapter 3, section III), or those nominated for promotion to colonel based on selection by a Federal Recognition Board for Federal recognition in that grade. The lists will be forwarded through channels to the U.S. Senate for confirmation. b. Headquarters Department of the Army Office of the Deputy Chief of Staff for Personnel will notify the Office of Promotions (RC) on Senate confirmation. That agency will in turn notify area commanders and Chief, National Guard Bureau. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220006388 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1