RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 22 August 2006
DOCKET NUMBER: AR20050015370
I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.
| |Mr. Carl W. S. Chun | |Director |
| |Mr. W. W. Osborn, Jr. | |Analyst |
The following members, a quorum, were present:
| |Ms. Linda D. Simmons | |Chairperson |
| |Mr. John T. Meixell | |Member |
| |Mr. Jerome L. Pionk | |Member |
The Board considered the following evidence:
Exhibit A - Application for correction of military records.
Exhibit B - Military Personnel Records (including advisory opinion,
if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests correction of his date of rank as a colonel and
corresponding back pay.
2. The applicant states that his promotion was inadvertently delayed
because the United States (U.S.) Senate misplaced the promotion list (02-
05) containing his name.
3. The applicant provides copies of a 42 page printout from the U.S.
Senate website of confirmed military officer promotions; an email about the
problem; 3 August 2005, 31 August 2005 and 23 October 2005 special orders
from the National Guard Bureau extending, revoking and again extending
federal recognition; an Army National Guard (ARNG) Federal Recognition
Update; a 1 February 2005 Memorandum from the NGB forwarding Senate
Confirmation List 02-05 to the Deputy Chief of Staff, G-1; a 31 January
2005 status matrix for Senate Confirmation List 02-05 orders promoting the
applicant to colonel with a pen and ink correction changing the date of
rank and effective date from
17 December 2004 to 30 September 2005; proceedings of a 17 December 2004
Federal Recognition Board; Oregon Army National Guard (ORARNG) orders
transferring the applicant; November 2001 NGB orders extending federal
recognition to the applicant as a lieutenant colonel.
CONSIDERATION OF EVIDENCE:
1. The applicant, a career ARNG officer was selected for promotion to
colonel and his name was submitted to the Senate for confirmation.
2. On 14 December 2004, a Federal Recognition Board was held by the ORARNG
to determine if the applicant was qualified to be awarded Federal
Recognition. The proceedings indicated that the applicant was satisfactory
in his physical qualifications, moral character and general qualifications.
3. ORARNG Orders Number 004-005, dated 4 January 2005, show that the
applicant was promoted to the grade of colonel on 17 December 2004. These
orders further show that the date 17 December 2004 was lined through and
the date 30 September 2005 was stamped on the orders.
4. National Guard Bureau Federal Recognition Orders Number 227 AR, dated
3 August 2005, awarded the applicant permanent Federal Recognition for
promotion to the grade of colonel, effective 3 August 2005.
5. National Guard Bureau Federal Recognition Orders Number 256 AR, dated
31 August 2005, revoked National Guard Bureau Federal Recognition Order
Number 227, dated 3 August 2005.
6. National Guard Bureau Federal Recognition Orders Number 282 AR, dated
30 October 2005, awarded the applicant permanent Federal Recognition for
promotion to the grade of colonel, effective 30 September 2005.
7. During the processing of this case, the National Guard Bureau (NGB)
provided an advisory opinion from the Chief of the Personnel Division.
8. The Chief of the Personnel Division recommended that the applicant's
request for adjustment of his date of rank as a colonel from 30 September
2005 to 30 June 2005 be approved.
9. The Chief of the Personnel Division stated that the applicant's name
was among those listed on the promotion scroll SL02-05 and that this
promotion scroll was submitted for Senate confirmation on 6 June 2005 along
with scroll numbers SL01-05 and SL03-05. The Chief of the Personnel
Division continues that scroll numbers SL01-05 and SL03-05 were confirmed
by the Senate and that SL02-05 was not available for confirmation.
10. The Chief of the Personnel Division stated that SL02-05 was
resubmitted to the Senate and was eventually confirmed on 30 September 2005
which resulted in delay of 92 days of pay and date of rank.
11. The Chief of the Personnel Division continued that the National Guard
Bureau Federal Recognition Section policy states that effective 1 July
2005, all State held Federal recognition Boards for promotion
recommendations for the grades captain through lieutenant colonel must be
approved by the Secretary of Defense and promotions for the grade of
colonel require Senate confirmation. The Federal Recognition Section
policy further states that this process requires a list of names to be
compiled for the President or Senate and then the list or scroll is
forwarded through appropriate Department of the Army offices to the Office
of the Secretary of Defense. The policy continues that once the signature
of the Secretary of Defense is obtained, orders are published by the
National Guard Bureau for promotion and the effective date of the promotion
is the date that the list is signed by the Secretary of Defense or
confirmed by the Senate.
12. The advisory opinion was provided to the applicant for comment or
rebuttal and he concurred.
13. Executive Order Number 13359, dated 28 September 2004, states that the
President of the United States delegated his appointment authority to the
Secretary of Defense to sign and approve the Presidential List. However,
the Department of Justice advised the Secretary of Defense that further
delegation of authority was prohibited. Therefore, without the delegation
of authority, the Chief of the National Guard Bureau can no longer appoint
and promote officers prior to the Secretary of Defense signing appointment
scrolls.
DISCUSSION AND CONCLUSIONS:
1. The applicant’s name was listed among those on the promotion scroll
SL02-05 which was not available and therefore not considered in a timely
manner by the Senate. As a result the applicant's promotion effective date
was delayed through no fault of his own.
2. Although, the Senate did not confirm promotion scroll SL02-05 until
30 September, the facts in this case show that the other two lists
submitted with the SL02-05 list were confirmed by the Senate on 30 June
2005. Therefore, it would be equitable in this case to grant the
applicant's request for correction of his records to show that he was
promoted to the grade of colonel with the effective date of 30 June 2005.
3. The foregoing is in consonance with the advisory opinion from the NGB.
BOARD VOTE:
__JTM___ __LDS__ _JLP____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief. As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by
correcting his date of rank as a colonel, date of Federal recognition and
the effective date to 30 June 2005 and by paying him any back pay accruing.
___Linda D. Simmons____
CHAIRPERSON
INDEX
|CASE ID |AR20050015370 |
|SUFFIX | |
|RECON | |
|DATE BOARDED |20060822 |
|TYPE OF DISCHARGE | |
|DATE OF DISCHARGE | |
|DISCHARGE AUTHORITY | |
|DISCHARGE REASON | |
|BOARD DECISION |GRANT |
|REVIEW AUTHORITY | |
|ISSUES 1. |135.1 |
|2. | |
|3. | |
|4. | |
|5. | |
|6. | |
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