IN THE CASE OF: BOARD DATE: 8 August 2023 DOCKET NUMBER: AR20230000387 APPLICANT REQUESTS: • in effect, correction of her Date of Rank (DOR) for promotion to captain (CPT) • promotion to the rank of major (MAJ) • correction of all records to show she was promoted to MAJ • a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: • DD Form 149 (Application for Correction of Military Record) • Promotion Checklist • Height and Weight Chart • Orders Number 169-1005 Transfer Orders • Officer Record Brief (ORB) • DA Form 67-9 (Officer Evaluation Report (OER)) • Email regarding Federal Recognition Tracking • Email regarding Pending 250th Military Intelligence (MI) Actions • DA Form 3349 (Physical Profile • Personnel Qualification Record (PQR) • Memorandum, Subject: Verification of Army Military Human Resource Record • Sub-Course Report • DA Forms 705 (Army Physical Fitness Test (APFT) Scorecard) • Document with Applicant's Military Information • Email regarding Federal Recognition Board Packet Review Completed • DA Form 1559 (Inspector General (IG) Action Request) • Email regarding Completed DA Form 1559 • Email regarding Information • Memorandum For Record (MFR), Subject: Promotion Packet • DA Form 67-10-1 (Company Grade OER) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code (USC), 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 effect, a. She is requesting, in effect, that her DOR to CPT be corrected and that she be promoted to MAJ. She would like this change reflected on all records to include pay, disability, retirement, and all personnel records. b. She submitted her packet for promotion from first lieutenant (1LT) to CPT in November 2013. Through no fault of her own, her promotion packet did not reach the board as it should have because it sat on someone's desk for six months. c. When she became aware of what transpired, she did her due diligence and filed an Inspector General (IG) complaint to remedy the issue. The IG's response was they located her promotion packet, it was submitted on time but had sat on someone's desk for 6 months and they would suggest additional training for that person. d. Had her promotion packet been processed, she would have been promoted to CPT in 2014 and she met all requirements for promotion to MAJ educationally and Time in Grade (TIG). e. Army Regulation (AR) 600-8-29 (Officer Promotions) Section 2.7, paragraph c(4) states, CPT, MAJ and lieutenant colonel (LTC) must serve at least 3 years Time in Grade (TIG) to be considered for promotion. National Guard Regulation (NGR) 600-100 (Commissioned Officers Federal Recognition and Related Personnel Actions) Section 8, paragraph 8 states, a commissioned officer must complete the following minimum TIG prior to being considered for promotion and Federal Recognition to the higher grade: CPT to MAJ 4 years. f. According to both AR 600-8-29 and NGR 600-100, she would have met the TIG requirement if her initial promotion packet had been processed and not sat on someone's desk for six months. g. The Board should consider her request because she did all that was required of her. She submitted her initial promotion packet on time; however, the system failed her, and she was penalized for someone else's inefficiency, which impacted her future promotion. Additionally, the IG office did not remedy the situation after confirming the wrong. 3. The applicant's service record contains the following documents for the Board's consideration: a. National Guard Bureau (NGB) Form 337 (Oaths of Office), which shows she completed the oath of office as a first lieutenant (1LT)/O-2 in the California Army National Guard (CAARNG) on 30 March 2011. b. On 8 September 2011, Special Orders Number 215 issued by the NGB extended federal recognition for the applicant's initial appointment in the ARNG, effective 30 March 2011 with a date of rank for 1LT of 30 March 2010. c. DA Form 1059 (Service School Academic Evaluation Report) shows the applicant attended and completed the Chaplain Basic Officer Leader Course from 14 January 2013 through 12 April 2013. d. Special Orders Number 44, published by the NGB, dated 3 March 2016, extended Federal Recognition to the applicant and she was promoted to the rank of CPT with a DOR of 11 February 2016. e. DA Form 1059 shows the applicant attended and completed the Captains Career Course (CCC) (Phase I) from 6 April 2015 through 6 April 2016 and Phase II from 15 August 2016 through 26 August 2016. f. On 21 September 2017, the applicant entered active duty. g. DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings), dated 9 August 2019 shows the applicant was found physically unfit and that her disposition be permanently disability retirement. The applicant concurred with the findings and waived a formal hearing of her case. h. DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 11 December 2019, the applicant was honorably retired in the rank of CPT due to disability, permanent (enhanced). i. NGB Form 22 (Report of Separation and Record of Service) honorably transferred the applicant to the USAR Control Group (Retired) on 11 December 2019. 4. The applicant provides the following documents, for the Board's consideration: a. A document titled Promotion Checklist, which shows the applicant was in the rank of 1LT and indicates the documents she prepared for her promotion packet for promotion to CPT. The entire document is available for the Board's consideration. b. A height and weight chart, which shows the height of the applicant, her age, and body fat standards. It states for promotion to CPT TIG is 2 years. c. Orders Number 169-1005, published by the Joint Force Headquarters, CAARNG, dated 18 June 2013, transferred the applicant from one ARNG unit to another with an effective date of 18 June 2013. d. ORB dated 10 October 2013, which shows the applicant was in the rank of 1LT and her DOR was 20 March 2010. e. DA Form 67-9, from 19 June 2013 through 31 March 2014, evaluated the applicant in the rank of 1LT. She was rated as satisfactory performance, promote. Her senior rater rated her fully qualified and center of mass stating she should strongly be considered for promotion. f. Email: Federal Recognition Tracking, dated 2 May 2014, wherein the applicant's unit was asking for an update on the applicant's promotion packet because the links provided to her to view her Federal Recognition packet status did not hold any data. g. Email: Pending 250th MI Actions, dated 22 May 2014, which states the applicant's promotion packet was still pending. h. DA Form 3349, dated 19 June 2014, shows the applicant had a temporary physical profile for her lower back, which expired on 17 September 2014, and she could not complete the APFT. i. PQR, dated 22 June 2014, which shows the applicant in the rank of 1LT and gives a synopsis of the applicant's military career. j. Memorandum, Subject: Verification of Army Human Resource Record, dated 22 June 2014 states a local records search for the applicant's record was conducted on 22 June 2014. The commander certified the applicant had not received a letter of reprimand. k. A document, which shows the military courses the applicant completed and future reservations at the time. The entire document is available for the Board's consideration. l. DA Forms 705, which show the applicant completed the APFT on: • 15 May 2011, Record, fail • 3 November 2012, Record, fail • 19 March 2013, Record, pass m. A document, which shows information pertaining to the applicant's military career, which is available for the Board's consideration. n. Email: Federal Recognition Packet Review Completed, dated 18 July 2014, which states the promotion packet was returned without action due to the applicant not having an APFT within the 12 month window and not having a profile in March 2014 when she was due for another APFT. The promotion packet was resubmitted to Office of Personnel Management on 27 June 2014. o. DA Form 1559 dated 25 July 2014, wherein the applicant requested IG to investigate and assess whether proper procedures were followed regarding her promotion packet and for them to recommend correction due to improper procedures. The findings of the IG investigation were not available for the Board's consideration. p. Email: Completed DA Form 1559, stating the applicant's DA Form 1559 had been received by the CAARNG IG's office. The entire email is available for the Board's consideration. q. Email regarding information requested, dated 4 August 2014, wherein there were questions regarding the applicant's promotion packet and the applicant responded to the requested information. The entire email chain is available for the Board's consideration. r. MFR, Subject: Promotion Packet, from the State Chaplain, dated 6 November 2014, wherein the State Chaplain supported the applicant's promotion to CPT and clarified the unit position the applicant was in. s. DA Form 67-10-1 showing the applicant was evaluated as a chaplain in the rank of CPT. She was highly qualified and recommended to attend intermediate level education and promote ahead of peers. 5. In the processing of the case, the Army Review Boards Agency requested documentation from the Department of the Army IG pertaining to the applicant. On 22 June 2023, the IG responded stating they did not locate any records regarding the applicant. 6. On 18 July 2023, the NGB, Chief, Special Actions Branch, provided an advisory opinion for the Board's consideration, which states, in effect: a. The applicant requests a correction to her DOR to CPT, promotion to the rank of MAJ, and correction to all her records as such. NGB recommended partial approval to the applicant's request. b. The applicant was promoted to CPT on 11 February 2016, which was a result of a delay due to no fault of her own. The applicant submitted her packet for promotion to CPT in November 2013. As a result of this delay, her promotion to MAJ was also affected. The applicant requests that her DOR to CPT be corrected and she be promoted to MAJ. c. The applicant was promoted to 1LT on 30 March 2011. Based on her promotion date, she would have been eligible for promotion to CPT on 30 March 2013. The applicant submitted her promotion packet to CPT in November 2013, but due to a delay of no fault of her own, the promotion packet was not processed correctly. d. Her CPT promotion packet was sent to the Federal Recognition Branch on 30 June 2015 and her orders were published on 11 February 2016. As a result of this delay, the applicant did not have enough TIG as a CPT for consideration for promotion to MAJ before retiring in December 2019. e. According to NGR 600-100, Chaplains do not have a Department of the Army (DA) Board for promotion from 1LT to CPT. In lieu of a DA board the chaplain proponent has a Chaplain CPT Certification Review. Up to three times a year, the ARNG Chaplain Personnel manager at NGB will review all Chaplain 1LT officers to determine eligibility based on Headquarters, DA guidance. Unit vacancy promotions for Chaplain 1LT officers are not authorized. According to paragraph 8-8, CPT to MAJ minimum TIG in the lower grade is 4 years. f. Based on the applicant's claims and the CAARNG's response, the applicant should have had an earlier date of rank to CPT. It is clear there was a delay in processing her promotion packet. It took about eight months to process her promotion packet once the Federal Recognition Branch received it. g. For those reasons, it is the recommendation of NGB that the applicant's request be partially approved. She should have her DOR to CPT backdated. However, since the applicant, never went through the board process or met requirements for promotion to MAJ, while serving, she should not be promoted to MAJ retroactively. It is difficult to predict promotion results and therefore, it is difficult to say the applicant would have been promoted to MAJ if it were not for her delay in promotion to CPT. h. The ARNG Federal Recognition Branch and the CAARNG concurred with the recommendation. 7. On 24 July 2023, the applicant was provided the advisory opinion to allow her the opportunity to respond. On 2 August 2023, she responded stating, in effect: a. She agreed and accepted having her DOR to CPT backdated; however, she disagreed with the statement that "...the applicant never...met requirement for promotion to MAJ, while serving." b. During her tenure, she operated with integrity and professionalism. She was committed to growth and advancement in her personal life and military life. She believes the following should be taken into consideration when determining her promotion to MAJ. (1) AR 600-8-29, Section 2-7, paragraph 4, which states: CPT, MAJ, and LTC. These officers must serve at least three years TIG to be considered for promotion. This requirement may be waived by the SECARMY only for consideration below the zone. (2) Section 2-9, Paragraph 3(a), states: The fully qualified method will be used when the maximum number of officers authorized to be selected is equal to or greater than the number of available officers from above, in, and below the promotion zone. Under this method, a fully qualified officer is one of demonstrated integrity, who has shown that he or she is qualified professionally and morally to perform the duties expected of an officer in the next higher grade. The term "qualified professionally" means meeting the requirements in a specific branch, functional area, or skill. c. To promote from CPT to MAJ, the applicant needed to complete the CCC once she was promoted to CPT (in her case, it was the Chaplains CCC). She did, scoring an average of 97 percent on all oral assignments and surpassing her peers in media engagement. d. It was required of the applicant to be physically, professionally, and morally qualified and able to fulfill the job duties of the promoted rank. She was. Her OERs speak to her professional and moral qualifications. She epitomized commitment to professional development. e. Prior to the applicant's swearing in, she had already obtained her Master of Theology and served as an Associate Pastor. Within six months of service, she was enrolled in and completed Victims Advocate training. Within 18 months she had completed training courses to include Applied Suicide Intervention Skills Training (ASIST), Strong Bonds, and High Mobility Multipurpose Wheeled Vehicle (HMMWV) Drivers Training. f. Within two years, she had completed a host of training relevant to her Military Occupational Specialty (MOS) and position as an officer to include completing Chaplain Basic Officer Leadership Course (before her peers), ASIST Train the Trainer, Family Wellness Instructor, 7 Habits for Single Soldiers, and more. Within three years, she had completed the Combat Medical Ministry Course and others. g. Years four and five were the same. During these years, she completed the Chaplain CCC and other training such as Ask, Care, and Escort Train the Trainer, and Defense Support of Civil Authorities to name a few. h. There was not lack of commitment to professional development on her part at any time, during her military career. She has included other certificates to verity that she met the requirements for her MOS. Therefore, it was her hope that after reviewing her statement and the additional documentation provided for the Board's consideration, the Board would find that in addition to deserving to have her rank to CPT backdated, she also met the requirements to be promoted to MAJ. 8. The applicant provided the following documents, with her rebuttal, for the Board's consideration: a. Certificates of Completion/Training, which show she completed: • Sexual Assault Prevention and Response Victim Advocate Training, 10 June 2011 • ASIST, 5 June 2012 and 8 April 2013 • HMMWV Driver Training, 30 July 2012 • 7 Habits for Single Soldiers, 18 October 2012 • Ask, Care, Escort - Suicide Intervention Train-the-Trainer Workshop, 12 March 2015 • Support of Civil Authorities Phase I Course, 3 April 2016 b. DA Form 1059 Chaplain Basic Leader Course Certificate, dated 12 April 2013, showing she completed Chaplain Basic Officer Course. c. DA Form 67-9, from 2 August 2012 through 1 August 2013, rated the applicant as a 1LT as the Battalion Chaplain. In Part V (Performance and Potential Evaluation (Rater)) block c (Comment on Potential for Promotion) "should be promoted as soon as possible" and in Part VII (Senior Rater) "should be promoted as soon as possible. d. The applicant attached a second copy of the DA Form 67-9 and highlighted the following in Part VII "the applicant is quality officer with excellent potential and certainly excel in chaplain position that she is assigned." e. Certificate of Achievement from Emergency Management Institute, dated 6 December 2013 for training in Introduction to Incident Command System. f. DA Form 1059, dated 7 February 2014, showing she completed Combat Medical Ministry. She highlighted "outstanding academic student, scoring in the top of her class with a final exam score of 105. g. Certificate of Recognition, dated 10 April 2014, recognizing her as a Registered Trainer of ASIST. h. DA Form 67-10-1, from 1 April 2014 through 31 March 2015, the applicant was a 1LT promotable. In Part VI (Senior Rater), she highlighted "she is an outstanding officer and fully capable of succeeding with minimal oversight. Promote ahead of peers." i. DA Form 1059, dated 25 August 2016, showing she completed the Chaplain CCC. BOARD DISCUSSION: 1. The Board determined 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 relief was partially warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The Board reviewed, was persuaded by, and agreed with the NGB advisory official‘s finding that: a. The applicant was promoted to 1LT on 30 March 2011. Based on her promotion date, she would have been eligible for promotion to CPT on 30 March 2013. She submitted her promotion packet to CPT in November 2013, but due to a delay of no fault of her own, the promotion packet was not processed properly. The Federal Recognition Branch published her promotion orders to 1LT on 1 March 2013, which is incorrect because she was appointed in the ARNG on 30 March 2011 as a 1LT (CH). b. Based on the applicant's claims and the CAARNG's response, the applicant should have had an earlier date of rank to CPT. The promotion packet to CPT was submitted to the Federal Recognition in mid-November 2013. There was a delay in processing her promotion packet. It took many months to process her promotion packet once the Federal Recognition Branch received it. The Board found it reasonable to presume a 90-day timeline for the Federal Recognition Board Staffing process, and since the effective date of rank is the date of the Federal Recognition approval, in the applicant’s case this date should have been around 1 March 2014. c. The Board also reviewed the NGB’s recommendation regarding her MAJ promotion, together with her rebuttal statement. The Board was persuaded by the NGB’s finding that since the applicant never went through the board process or met requirements for promotion to MAJ, while serving, she should not be promoted to MAJ retroactively. The Board also agreed that it is difficult to predict promotion results and therefore, it is difficult to say the applicant would have been promoted to MAJ if it were not for her delay in promotion to CPT. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF xx: xx: xx: 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 and Army National Guard records of the individual concerned be corrected by amending Special Orders Number 44, issued by the NGB on 3 March 2016 to show the applicant’s effective date and date of rank to CPT as 1 March 2014 vice 11 February 2016. 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 promotion to major (MAJ) and correction of all records to show she was promoted to MAJ. 8/8/2023 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 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. Title 10, USC, section 14308(f) (Effective Date of Promotion after Federal Recognition) states that 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 ARNG under section 307 or 310 of Title 32 shall be the date on which such Federal recognition in that grade is so extended. Further stated is that if the Secretary concerned determines that there was an undue delay in extending Federal recognition in the next higher grade in the ARNG to a Reserve commissioned officer of the Army, 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. 3. Title 10, USC, section 14303. Eligibility for consideration for promotion: minimum years of service in grade states in subparagraphs— a. Officers in Pay Grades O–1 and O–2.—An officer who is on the reserve active-status list of the Army and holds a permanent appointment in the grade of second lieutenant or first lieutenant as a reserve officer of the Army, may not be promoted to the next higher grade until the officer has completed two years, in the case of an officer holding a permanent appointment in the grade of first lieutenant as a Reserve officer in the Army. b. Officers in Pay Grades O–3 and Above.—Subject to subsection (d), an officer who is on the reserve active-status list of the Army and holds a permanent appointment in a grade above 1LT, may not be considered for selection for promotion to the next higher grade until the officer has completed three years, in the case of an officer of the Army holding a permanent appointment in the grade of captain, major, or LTC 4. National Guard Regulation (NGR) 600-100 (Commissioned Officer Federal Recognition and Related Personnel Activities) states that a commissioned Officer who has been promoted by the State and extended Federal Recognition in the higher grade will be concurrently promoted to the higher grade in the Reserve of the Army with assignment to the Army National Guard. Federal recognition will be extended by the NGB to those Officers found qualified by the board and approved by the Secretary of the Army (SECARMY) after Senate confirmation of appointment. The effective date of Federal recognition will be the date of Senate confirmation if vacancies exist within the statutory limitation prescribed by Title 10, USC, section 3218, or, if no vacancies exist at that time, on the date such vacancies occur. 5. The ABCMR may correct an officer's date of rank/effective date of rank when a proper appointment has already occurred. a. Title 10, USC, sections 624 and 741 provide for situations in which properly appointed officers are provided "backdated" dates of rank and effective dates to remedy errors or inequities affecting their promotion. The authority to remedy these errors or inequities is given to the Service Secretaries. b. Department of Defense Instruction 1310.01 ((Rank and Seniority of Commissioned Officers) (23 August 2013) provides that a Service Secretary may "adjust the date of rank of an officer appointed to a higher grade if the appointment of that officer to the higher grade is delayed by unusual circumstances." c. What constitutes "unusual circumstances" will, generally, be for the Board to determine based on the available evidence, which often includes an advisory opinion. d. There may be cases (specifically correction of constructive credit that affects original appointment grade) where relief is not possible because an appointment to a higher grade has not yet occurred. In those cases, the Board should be advised of the limits of its authority. The Board may also be advised that the applicant can submit a request for reconsideration after he or she has been appointed to a higher grade. 6. AR 135-155 (Army National Guard (ARNG) and U.S. Army Reserve (USAR) – 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 ARNG of the United States. To be considered for promotion by a selection board, a commissioned officer (other than a commissioned warrant officer) must have continuously performed service on the RASL, the ADL, or a combination of both during the 1-year period ending on the date the board convenes. To be considered for promotion to Major, the Soldier must have a minimum time in grade of 4-years and have completed the officer advanced course. 7. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the SECARMY, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states 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//