IN THE CASE OF:	  

	BOARD DATE:	  26 June 2008

	DOCKET NUMBER:  AR20080000568 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his date of rank be adjusted from 29 November 2007 to 30 August 2007.

2.  The applicant states that the promotion packets were submitted to the State on or about the first of June and went before the August Federal Recognition board.  On 4 September 2007, the packets were submitted electronically to the National Guard Bureau (NGB).  The packet was approved by NGB on               29 November 2007.  He was assigned to an O-3 position for one year prior to his promotion eligibility date and has been performing the duties of an O-3 for the past year.

3.  The applicant provides a memorandum of support, dated 12 December 2007, from the State of North Carolina; Active Guard Reserve (AGR) orders, dated     25 September 2006; Federal Recognition orders, dated 30 November 2007; State promotion orders, dated 4 September 2007; a promotion memorandum, dated 30 November 2007; assignment orders, dated 14 September 2006; and a portion of a unit manning document, dated 16 November 2006.

CONSIDERATION OF EVIDENCE:

1.  After having had prior enlisted service, the applicant was appointed a second lieutenant in the Army National Guard (ARNG) on 16 August 2003.  He was promoted to first lieutenant on 24 August 2005. 

2.  Effective 1 September 2006, the applicant was assigned to an O-3 position with Headquarters and Headquarters Company, 449th Theater Aviation Brigade, as a liaison officer.  On or about 25 September 2006, he was ordered to active duty in an AGR status in this O-3 position.

3.  Effective 30 August 2007, the State promoted the applicant to captain, O-3.  

4.  National Guard Bureau Special Orders Number 300 AR dated 30 November 2007 extended Federal Recognition to the applicant as a captain effective         29 November 2007.

5.  The applicant was promoted as a Reserve Commissioned Officer (captain) of the Army with a date of rank and effective date of 29 November 2007.  

6.  In the processing of this case, an advisory opinion was obtained from the Personnel Division, NGB.  That office recommended disapproval of the applicant’s request as the applicant was promoted under the position vacancy promotion system.  The promotion effective date is established by the Secretary of Defense, the date on which the scroll list is approved.  In accordance with the Reserve Officer Personnel Management Act (ROPMA) the effective date of promotion and the date of rank for an officer who is promoted under the position vacancy promotion system will be the date the Chief, NGB extends Federal Recognition, based on the approved scroll list from the Secretary of Defense.  Scroll lists take about 90 to 120 days to be approved by the Secretary of Defense due to the fact that the lists are processed through 12 offices before being approved by the Secretary of Defense.  

7.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He did not respond within the given time frame.

8.  National Guard Regulation 600-100 prescribes policies and procedures governing, in part, the appointment, Federal Recognition, and separation of commissioned officers of the ARNG.  Chapter 8 states the promotion of officers in the ARNG is a function of the State.  A commissioned officer promoted by State authorities has a State status in the higher grade under which to function.  However, to be extended Federal Recognition in the higher grade, the officer must have satisfied the requirements prescribed in this chapter.  

9.  National Guard Regulation 600-100, paragraph 8-6, states wearing of  insignia of the higher grade is not authorized until Federal Recognition has    been extended by the Chief, NGB.  

10.  Title 10, U. S. Code, section 14304, states officers shall be placed in the promotion zone for that officer’s grade and competitive category and shall be considered for promotion to the next higher grade by a promotion board far enough in advance of completing the years of service in grade specified so that, if the officer is recommended for promotion, the promotion may be effective on or before the date on which the officer will complete those years of service.  The maximum years of service for (mandatory) promotion to the rank of captain is     5 years.  

11.  Authority granted to the Secretaries of the Military Departments in Secretary of Defense Memorandum, Subject:  Redelegation of Authority under Executive Order 12396, dated 9 December 1982, to appoint officers under section 624 of Title 10, U. S. Code, in the grades of O-2 and O-3 was rescinded effective 1 July 2005 based on advice from the Department of Justice that prohibits redelegation below the Secretary of Defense of the President’s authority to appoint military officers.  All military officer appointments under section 12203 of Title 10, U. S. Code, including original appointments, in the Reserve of the Army, Reserve of the Air Force, Naval Reserve, and Marine Corps Reserve, not previously approved by 30 June 2005, shall also be submitted to the Secretary of Defense.

12.  Title 10, U. S. Code, section 1552(a)(1), allows the Secretary of a military department to correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or restore an injustice.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been considered; however, the advisory opinion correctly points out that Federal Recognition could not be granted until the Secretary of Defense approved his appointment to captain.  

2.  The applicant stated that his promotion packet was submitted to NGB on        4 September 2007.  He was granted Federal Recognition 87 days later, on       29 November 2007.  That is not an excessively long period of time for his promotion to have been processed through channels to the Secretary of Defense’s office.  

3.  The only way that the date the applicant was granted Federal Recognition could be changed would be to show that the Secretary of Defense approved his promotion on an earlier date.  However, the Army Board for Correction of Military Records has no jurisdiction over Department of Defense records and therefore could not make that type of correction.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  __xx____  ___xx___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




 _    ______xxxxx___________
       CHAIRPERSON
      
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.



ABCMR Record of Proceedings (cont)                                         AR20080000568





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ABCMR Record of Proceedings (cont)                                         AR20080000568



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