IN THE CASE OF:	  

		BOARD DATE:  2 August 2012

		DOCKET NUMBER:  AR20110015866 


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 his military records to adjust his date of rank to captain, pay grade O-3, based on his assumption of company command.

2.  The applicant states he served as a company commander in an O-3 position from October 2006 until May 2008 as a first lieutenant, pay grade O-2.  Due to the failure of his battalion personnel officer to complete the process and paperwork in a timely manner, he lost valuable time which is now affecting his future promotions.

3.  The applicant provides no additional documentation.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show:

	a.  he was appointed in the Georgia Army National Guard (GAARNG) on 
19 November 2003;

	b.  he was assigned to lieutenant authorized positions from the date of his appointment to 31 December 2006;

	c.  he was assigned to a captain position as commander, D Company, 2nd Battalion, 121st Infantry Regiment on 1 January 2007;

	d.  he was locked out from unit vacancy position (UVP) on or about 1 April 2007 due to a Department of the Army (DA) Mandatory Board Position Vacancy Packet;

	e.  he was considered by a DA Army Promotion List (APL) for captain  in 2007;

	f.  he was selected by DA for promotion to captain with results published on or about 15 November 2007;

	g.  he signed a delay of promotion letter on 28 February 2008; and

	h.  he received Federal Recognition to captain effective 22 April 2008.

3.  In the processing of this case, an advisory opinion was obtained from the National Guard Bureau (NGB) wherein it recommended that the applicant be granted a partial approval of his request.  The opinion states:

	a.  Federal Recognition (FEDREC) Order Number 103 AR, dated 22 April 2008, should be amended to show his promotion effective date and date of rank as 19 September 2007.

	b.  He should receive all back pay and allowances due as a result of this correction.

4.  The opinion provides the following discussion:

	a.  The applicant became a member of the GAARNG on 19 November 2003.  Army Regulation 135-155 indicates he became eligible for promotion to captain as early as 19 November 2005.  GAARNG State Order Number 363-131, dated 29 December 2006, placed the applicant in an O-3 position effective 1 January 2007.
	b.  National Guard Bureau (NGB) Form 89 (Proceedings of a Federal Recognition Examining Board) indicates he was qualified and recommended for FEDREC.  GAARNG Order Number 217-004 was issued promoting him to captain effective 19 July 2007.  This order was subsequently revoked because a promotion electronic packet (epacket) had not been submitted by the state in order for him to receive FEDREC.

	c.  The delay in submitting the promotion epacket caused him to fall within the 90-day window to go before a DA Mandatory Board.  Because of the need to staff UVPs, the NGB established a 90-day blackout period.  This is in accordance with NGB-ARP-C memorandum, dated 14 January 2005; NGB-ARP-C memorandum, dated 17 March 2010, and the subsequently adopted ARNG-HRH policy memorandum #10-068, dated 3 November 2010.

	d.  A waiver of this 90-day blackout period was available.  The FEDREC Section calculates the 90-day suspense schedule at the beginning of each fiscal year and provides this information to the States.  The DA Mandatory Board convened on 6 November 2007.  The UVP Board at the State was held on 
19 July 2007.  According to the above-referenced memoranda, as long as the applicant's promotion packet was submitted prior to 8 August 2007, submission of the UVP would have been valid.  Due to the small window of opportunity (about 3 weeks) prior to the 90-day blackout period to submit the UVP request, the State could have requested a waiver to avoid the packet being returned without action.

	e.  GAARNG issued a State order dated 19 July 2007, the same day it held the captain UVP Board.  This would suggest it was the intent of the State to promote the applicant to captain.

	f.  National Guard Regulation 600-100, paragraph 8-1 states, "the promotion of officers in the ARNG is a function of the State."  It would appear that an administrative error was the cause of the UVP epacket not being submitted in a timely manner, and was not due to any fault of the applicant.

	g.  The GAARNG should generate a State order promoting the applicant to captain with a promotion effective date and date of rank no earlier than 
19 September 2007.  The recommended effective date of promotion is 60 days from the date the State held the FEDREC Board which would be the reasonable amount of time given for the FEDREC Section to have processed the epacket and to receive the appropriate signatures.  Additionally, FEDREC Order Number 103 AR, dated 22 April 2008, should be amended to show the promotion effective date and date of rank no earlier than 19 September 2007.

	h.  The State concurs with this recommendation.

5.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his military records should be corrected by adjusting his date of rank to captain, pay grade O-3, based on his assumption of company command.  He served as a company commander in an O-3 position from October 2006 until May 2008 as a first lieutenant, pay grade O-2.  His battalion personnel officer failed to complete the process and paperwork in a timely manner, causing him to lose valuable time which is now affecting his future promotions.

2.  The advisory opinion from the NGB recommends adjusting the applicant's effective date and date of rank for captain, pay grade O-3 to 19 September 2007, based on an administrative delay by the state that was not due to any fault of the applicant.

3.  It further recommends that FEDREC Order Number 103 AR, dated 
22 April 2008, be amended to show the promotion effective date and date of rank no earlier than 19 September 2007.

4.  Effective 1 July 2005, the authority to delegate appointments below the level of the Secretary of Defense was rescinded.  Accordingly, this Board does not have the jurisdiction to amend any military Reserve officer appointments under section 12203 of Title 10, U.S. Code.

5.  The evidence of record clearly shows that on 28 February 2008, the applicant had requested a delay of his promotion to captain.  He was subsequently promoted to captain with a date of rank and effective date of 22 April 2008.

6.  In view of the above, the applicant's request should be denied.

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)                                         AR20110015866





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ABCMR Record of Proceedings (cont)                                         AR20110015866



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