IN THE CASE OF:	  

		BOARD DATE:	  22 June 2010

		DOCKET NUMBER:  AR20100013053 


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 correction of her date of rank (DOR) as a captain (CPT) from 27 August 2009 to 11 June 2008.

2.  The applicant states she did not receive Federal recognition as a first lieutenant (1LT) in the Michigan Army National Guard (MIARNG) in a timely manner which led to her promotion not being processed in a timely fashion.  She was appointed as a 1LT in the Army Nurse Corps (ANC) of the MIARNG on 18 March 2008 and her Federal recognition packet was uploaded on or about 6 August 2008.  There was a problem with her packet but the MIARNG did not correct the error and resubmit the packet until 27 June 2009.  She ultimately received Federal recognition for her transfer to the ARNG on 8 July 2009.  She was initially submitted for promotion on 11 June 2008 but her packet was rejected because she was not Federally recognized.  After she received her Federal recognition, her promotion recommendation was processed and she was promoted to CPT on 27 August 2009, over a year after her original promotion request of 11 June 2008.

3.  The applicant provides the following documentary evidence:

* A copy of a memorandum for record, Subject: Timeline of Events, dated 30 March 2010
* A copy of Orders 085-068, dated 25 March 2008
* A copy of a memorandum, Subject: Notification of Promotion Status, dated 26 April 2007
* Copies of memoranda, Subject: Recommendation for Promotion of Officer, dated 11 June 2008 and 21 August 2009
* Copies of National Guard Bureau (NGB) Special Orders Number 211 AR and 165 AR, dated 27 August and 8 July 2009, respectively
* A copy of Orders 08-085-00036, dated 25 March 2008
* A copy of a memorandum, Subject: Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty, dated 26 April 2007
* A copy of a memorandum, Subject: Appointment as a Reserve Commissioned Officer of the Army, dated 19 June 2001
* A copy of an email, dated 10 June 2008

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service in the U.S. Army Reserve (USAR) and the ARNG, the applicant's records show she was appointed as a second lieutenant in the USAR and she executed a DA Form 71 (Oath of Office - Military Personnel) on 19 June 2001.  She completed the Reserve Components (RC) Army Medical Department Officer Basic Course and she was assigned to the 256th Combat Support Hospital (CSH), Springfield, OH, and later to the 323rd CSH, Southfield, MI.

2.  Her records also show she was not promoted to 1LT at her promotion eligibility date of 18 June 2003 because she had not met all promotion qualification.  Nevertheless, she was ultimately promoted to 1LT on 7 March 2004.

3.  On 3 February 2007, she requested a conditional release from the USAR to process for entrance into another component of the military service.

4.   On 26 April 2007, by memorandum, the U.S. Army Human Resources Command, St. Louis (USAHRC-STL), notified her that she was selected for promotion to CPT by the Reserve Components Selection Board (RCSB) that convened on 8 January 2007 and adjourned on 19 January 2007 and that her promotion eligibility date (PED) and grade would be used to compute her time in grade (TIG) for promotion to the next higher grade.  The effective date of promotion would be the later of the following:

* 6 March 2009
* Date Federal recognition is extended in the higher grade
* Date following the date Federal recognition is terminated in current Reserve grade

5.  On 18 March 2008, she was appointed as a 1LT in the MIARNG and she executed an NGB 337 (Oaths of Office) on the same date.  She subsequently completed and submitted an NGB Form 62E (Application for Federal Recognition as an Army National Guard Officer) on 20 March 2008.

6.  On 25 March 2008, Department of Military and Veterans Affairs, MIARNG, published Orders 085-068 appointing her as an ANC 1LT in the MIARNG, effective 18 March 2008.

7.  On 11 June 2008, by memorandum to the MIAARNG, her senior commander recommended her for promotion to CPT in the ARNG.  He indicated that she had demonstrated the required fitness for the responsibilities and duties of the position, grade, and branch being recommended.  He further indicated she met the military and civilian education requirements, as well as the height, weight, and fitness requirements.

8.  On 8 July 2009, the NGB published Special Orders Number 165 AR, extending her Federal recognition for her transfer from the USAR to the ARNG, effective 18 March 2008, as a 1LT with a DOR of 7 March 2004.

9.  On 21 August 2009, by memorandum to the MIAARNG, her senior commander recommended her for promotion to CPT in the ARNG.  He again indicated that she had demonstrated the required fitness for the responsibilities and duties of the position, grade, and branch being recommended.  He further indicated she met the military and civilian education requirements, as well as the height, weight, and fitness requirements.

10.  On 27 August 2009, the NGB published Special Orders Number 211 AR, extending her Federal recognition for promotion to CPT, with an effective date and DOR of 27 August 2009.

11.  She submitted a memorandum for record, dated 30 March 2010, authored by the noncommissioned officer in charge (NCOIC) as a timeline of events that occurred.  It shows:

* On 26 April 2007, she was selected for promotion by the RCSB
* On 18 March 2008, she was appointed in the ARNG
* On 8 June 2008, her Federal recognition packet was uploaded
* On 10 June 2008, an NGB official confirmed her eligibility
* On 11 June 2008, her promotion packet was submitted to MIARNG
* On an unknown date, her initial Federal recognition packet was rejected
* 
On 10 February 2009, additional documents were provided regarding her Federal recognition
* On 8 July 2009, she was extended Federal recognition for transfer to the ARNG
* On 21 August 2009, a second promotion packet was submitted
* On 27 August 2009, she was promoted to CPT

12.  In the processing of this case, on 6 May 2010, an advisory opinion was obtained from the Chief, Personnel Division, NGB.  The advisory official recommended disapproval of the applicant's request for correction of her DOR due to lack of error or injustice in the processing of her promotion.  He states:

	a.  She was selected for promotion by the RCSB on 19 January 2007.  Her PED to the grade of CPT is 6 March 2009.  The MIARNG recommended her for promotion on 11 June 2008.  The MIARNG Officer Branch NCOIC states on an unknown date, her 11 June 2008 Federal recognition packet was rejected and it was not until 10 February 2009 when the unit provided additional documents.

	b.  Between 11 June 2008 and 10 February 2009, she failed to follow up or correct the discrepancy regarding the rejection of her Federal recognition packet. She had the burden of proving an error or injustice by the preponderance of evidence.  She has not done so.

	c.  The recommendation for promotion memorandum does not dictate the recommended officer's DOR.  It is a recommendation for promotion, not an order for promotion.  A Federal Recognition Board has to convene to extend Federal recognition for promotion.

13.  On 10 May 2010, the applicant was provided with a copy of the advisory opinion for information and to allow her the opportunity to submit comments or a rebuttal.  On 27 May 2010, she submitted a rebuttal wherein she argued that she actively pursued the Federal recognition issue through various members of her chain of command as well as through the Office of the Inspector General, as shown on multiple emails.  She also conducted several verbal communications with her commander, supervisor, and administrative officials.

14.  National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions) prescribes policies and procedures governing the appointment, assignment, temporary Federal recognition, Federal recognition, reassignment, and other personnel issues related to commissioned officers of the ARNG.  It states commissioned officers of the ARNG are 
appointed by the several States.  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 ARNG, as provided by law.

15.  National Guard Regulation 600-100, chapter 8, provides for promotion of officers.  It states, in pertinent part, that the promotion of officers in the ARNG is a function of the State, and as in original appointments, 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 promotion requirements.  Paragraph 8-2a(2) states the DOR as a Reserve of the Army for an ARNG traditional (M-day) commissioned officer, who is promoted as a result of selection by a mandatory selection board, is the date the Chief, NGB extends Federal recognition.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her DOR should be changed from 27 August 2009 to 11 June 2008.

2.  The evidence of record shows she was selected for promotion by a mandatory RCSB that convened in January 2007.  She then transferred to the ARNG on 18 March 2008 and the MIARNG uploaded her Federal recognition packet on or about 8 June 2008.  However, it appears that her packet was missing certain documents and it was not processed.

3.  Meanwhile, she was recommended for promotion to CPT by her chain of command on 11 June 2008 and had met promotion requirements.  However, at the time her promotion recommendation was submitted, she still had not received Federal recognition for appointment in the ARNG.  Therefore, her promotion could not be processed.

4.  The MIARNG resubmitted her Federal recognition packet on 10 February 2009 and she was ultimately extended Federal recognition on 8 July 2009 for her transfer from the USAR to the ARNG, effective 18 March 2008.  Once she was extended Federal recognition, her chain of command submitted another recommendation for promotion on 21 August 2009 and she was finally extended Federal recognition for this promotion a week later, on 27 August 2009.

5.  There were administrative and procedural errors in the applicant's appointment and transfer to the ARNG as well as her Federal recognition packet, 

caused primarily by the MIARNG but not necessarily due to her own fault.  Had the MIARNG submitted the proper documentation, she would have timely received Federal recognition for her transfer to the ARNG and her first promotion recommendation would have also been timely processed.  She aggressively pursued her Federal recognition issue through her commander, supervisor, and the Inspector General.

6.  Notwithstanding the NGB's advisory opinion, it is clear that various administrative errors denied her promotion on 11 June 2008 as she was fully qualified for promotion on that date.  Therefore, she is entitled to adjustment of her promotion effective date and DOR to CPT to 11 June 2008 and payment of back pay and allowances as a result of this correction.

BOARD VOTE:

__X_____  ___X____ ____X___  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:

	a.  amending Special Orders Number 211 AR, dated 27 August 2009, to show she was promoted to CPT with an effective date and date of rank of 11 June 2008 and extended Federal recognition on that date in the grade of CPT; and

	b.  paying her any back pay and allowances due as a result of this correction.



      __________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)                                         AR20100013053



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