IN THE CASE OF:
BOARD DATE: 6 January 2011
DOCKET NUMBER: AR20100010903
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 adjustment to the effective date of his promotion to the rank of captain.
2. The applicant states that he was overlooked for promotion to the rank of captain due to a miscommunication between the Office of Personnel Management (OPM) and the forward unit. He goes on to state that he should have been considered by the Federal Recognition Board on 19 August 2009; however, through no fault of his own, his packet was delayed until the
16 September 2009 board. Accordingly, he desires his date of rank to be adjusted to an appropriate date as if his packet had gone to the 19 August 2009 board.
3. The applicant provides:
* Memoranda from two officials of the Wyoming Army National Guard (WYARNG)
* Copies of emails between the WYARNG and OPM
CONSIDERATION OF EVIDENCE:
1. The applicant accepted a commission as a second lieutenant in the WYARNG on 7 May 2005. He was promoted to the rank of first lieutenant on 9 August 2007.
2. On 19 September 2009 his records were reviewed by a Federal Recognition Examining Board in Cheyenne, WY. The applicant was found physically and morally qualified and he was recommended for Federal Recognition.
3. On 22 September 2009, orders were published by the WYARNG promoting the applicant to the rank of captain, effective 16 September 2009.
4. On 5 January 2010, National Guard Bureau (NGB) Special Orders 316 AR extended Federal Recognition to the applicant for the purpose of promotion, effective 30 December 2009.
5. In the processing of this case, on 29 October 2010, a staff advisory opinion was obtained from the NGB which recommends disapproval of the applicants request. The advisory official stated, in effect, that the delay between when the applicant contends he should have been considered and when he was actually considered was negligible and would have resulted in only 16 days difference in when his Federal Recognition was granted. The advisory official also contends that a 16-day delay is not unreasonable under the circumstances and does not constitute an error or injustice under the meaning of Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) or Title 10, U.S. Code, section 1552.
6. The advisory opinion was forwarded to the applicant on 29 October 2010 for information and to allow him the opportunity to submit comment or a rebuttal. The applicant did not respond.
7. National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions) provides procedures for processing applications for Federal Recognition. Paragraph 2-1 states that commissioned officers of the ARNG are appointed by the States under Article 1, section 8 of the U.S. Constitution. These appointments may be federally recognized by the Chief, NGB under such regulations as the Secretary of the Army may prescribe and under the provisions of this regulation. Officers who are federally recognized in a particular grade and branch shall be tendered an appointment in the same grade as Reserve commissioned officers of the Army with assignment to the Army National Guard of the United States if they have not already accepted such appointment.
8. National Guard Regulation 600-100, paragraph 8-1, states that the promotion of officers in the ARNG is a function of the State. Paragraph 8-3 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 of the United States.
9. Title 10, U.S. Code, section 14308(f), states that the effective date of a promotion of a Reserve commissioned officer in the Army who is extended Federal Recognition in the next higher grade in the Army National Guard shall be the date in which such Federal Recognition in that grade is so extended.
DISCUSSION AND CONCLUSIONS:
1. While the applicants Federal Recognition packet may have been delayed in processing, it does not appear that the delay was of such length to cause any unreasonable harm to the applicant and it does not appear that the delay was of such length to be deemed unreasonable when compared to the process involved in obtaining Federal Recognition.
2. Information obtained from the NGB indicates that the difference between when the applicant claims he should have been considered and when he was considered was 16 days difference. Given the complexities of the Federal Recognition process, such a short delay is not unreasonable and does not constitute an injustice to the applicant.
3. Accordingly, there appears to be no basis to grant the applicants request for an adjustment of his Federal Recognition date.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
_____X___ ____X____ ____X____ 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.
___________X____________
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) AR20100010903
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ABCMR Record of Proceedings (cont) AR20100010903
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