IN THE CASE OF:	  

	BOARD DATE:	  10 July 2008

	DOCKET NUMBER:  AR20080005120 


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 her effective date of rank to Major (MAJ) be adjusted from 28 January 2008 to 8 June 2007.

2.  The applicant states, in effect, after returning from Iraq she was promoted on the State promotion board on 11 February 2007.  She was not allowed to move to her new MAJ position until the equipment hand receipts and change of command had occurred, which caused a delay, and she was not officially transferred until 4 June 2007.  On 8 June 2007, her promotion packet was scheduled to go before the State Federal Recognition board.  However, she was notified that she was being flagged due to an Army Regulation (AR) 15-6 investigation.  

3.  The applicant states, "Also during this time frame, I spoke with the State SJA, COL B___ M_____, who informed me that if I was cleared of the charges that my effective date of promotion would be back dated.  He stated that if the charges "were unfounded" the effective date would be corrected.  She missed three additional boards during the period.  In August 2007, the Appointing Authority concluded the investigation without any unfavorable action against the applicant. The applicant's promotion packet went before the August 2007 State Federal Recognition board and was denied because her flagging action had not been lifted.  



4.  The applicant's Federal Recognition packet again went before the State Federal Recognition board and was denied because she was not qualified for her Battalion position.  She completed the required course in October 2007.  Her Federal Recognition packet went before the State Federal Recognition board and again was denied because the Alabama Senior Army Advisor felt her AR 15-6 investigation needed a legal review.  

5.  On 5 November 2007, her Federal Recognition went through the State Federal Recognition board successfully and she received her Federal Recognition on 28 January 2008.

6.  The applicant provides her State MAJ promotion orders; her National Guard Bureau (NGB) Federal Recognition orders; a Joint Force Headquarters Alabama Army National Guard (ALARNG) memorandum, dated 11 February 2007; a one page letter titled "Federal Recognition Board"; four pages of e-mail messages; a Human Resource Management Course diploma, dated 5 October 2007; Joint Force Headquarters Alabama Army National Guard Orders 155-528, dated 
4 June 2007; and two 22nd Recruiting and Retention Battalion, ALARNG memoranda, with dates 17 October 2007 and 20 February 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior enlisted service in the ALARNG. 

2.  NGB Federal Recognition Orders Number 142 AR, dated 13 August 1998, show that the applicant was awarded permanent Federal Recognition for initial appointment as a Second Lieutenant (2LT)/O-1 in the ALARNG effective 
2 August 1998.

3.  NGB Federal Recognition Orders Number 118 AR, dated 2 August 2000, show that the applicant was awarded Federal Recognition for the purpose of promotion to First Lieutenant (1LT)/O-3 in the ALARNG effective 2 August 2000.

4.  NGB Federal Recognition Orders Number 252 AR, dated 19 September 2002, show that the applicant was awarded Federal Recognition for the purpose of promotion to Captain (CPT)/O-3 in the ALARNG effective 18 September 2002.

5.  ALARNG Orders 155-528, dated 4 June 2007, show that the applicant was transferred from the 690th Chemical Company to the O and T (acronym unknown) Office Recruiting and Retention, ALARNG.

6.  On 5 October 2007, the applicant successfully completed the Human Resource Management Course. 
7.  ALARNG Orders 309-591, dated 5 November 2007, show that the applicant was promoted to the rank and pay grade of Major (MAJ)/O-4 with an effective date and date of rank of 5 November 2007.

8.  NGB Federal Recognition Orders Number 25 AR, dated 30 January 2008, show that the applicant was awarded Federal Recognition for the purpose of promotion to MAJ in the ALARNG effective 28 January 2008.

9.  A NGB memorandum, dated 30 January 2008, show that the applicant was promoted as a Reserve Commissioned Officer of the Army in the rank of MAJ for service in the ARNG with an effective date and date of rank of 28 January 2008.

10.  In the processing of this case an advisory opinion was obtained from the Chief of the Personnel Division of the NGB.  The Chief of the Personnel Division recommended disapproval of the applicant's request for adjustment of her effective date of rank to MAJ from 28 January 2008 to 8 June 2007, reason being that her promotion was based on a position vacancy promotion.

11.  The NGB official further stated that in accordance with the Reserve Officer Personnel Management Act, the effective date of promotion and date of rank of 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.  The promotion effective date is not the date of appointment into the position or the date of State Federal Recognition Board.  Scroll list take approximately 90 to 120 days to be approved by the Secretary of Defense, due to it having to be processed through the following offices before it is approved by the Secretary of Defense:  Office of the Deputy Chief of Staff for Personnel, Office of The Judge Advocated General, Director of Military Personnel Management, Deputy Chief of Staff for Personnel, Assistant Secretary of the Army, Director of the Army Staff, Secretary of the Army, Office of the Secretary of Defense, General Counsel of the Department of Defense, Deputy Assistant Secretary of Defense Military Personnel Policy, Deputy Assistant Secretary of Defense Force Management Policy, and the Under Secretary of Defense Personnel and Readiness.

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

13.  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.  

14.  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.  

15.  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 MAJ is 
7 years.  

16.  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.

17.  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 her appointment to MAJ.  

2.  The applicant states that from June 2007 to November 2007 for one reason or another, her State denied her promotion to MAJ.  Unfortunately, her name was placed on the State Federal Recognition promotion list and she was not promoted by the State until 5 November 2007.  Then, the applicant was not entitled to Federal Recognition as a MAJ until the Secretary of the Defense approved her promotion on 28 January 2008.  Also unfortunately, a unit vacancy promotion is strictly a function of the State.  The Army Board for Correction of Military Records cannot correct State records.

3.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080005120





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ABCMR Record of Proceedings (cont)                                         AR20080005120



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