BOARD DATE:	  1 November 2012

		DOCKET NUMBER:  AR20110017809 


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, in effect, that her commission as a second lieutenant (2LT) in the New Jersey Army National Guard (NJARNG) be reinstated and she be promoted to first lieutenant (1LT) with all due back pay and allowances (with interest) for all drills, annual training, and other additional duty days that she would have performed as a result of these corrections.  She additionally requests to upgrade her general discharge, under honorable conditions to fully honorable.  

2.  She states the promotion from 2LT to 1LT is automatic but she was not given this opportunity as her unit denied her the right by not submitting her promotion package to the National Guard Bureau (NGB).  She was subsequently discharged by her unit for not being promoted within the prescribed timeframe. 

3.  She indicates she has an honorable discharge and does not want the characteristic to change but there is no other option to request to be reinstated with a promotion. 

4.  The applicant provides:

* several separation documents
* supporting documents for promotion 
* various memoranda 
* unit training assembly (UTA) information
* memoranda of reprimand
* Inspector General (IG) complaint documents
* a discrimination complaint package
* a Standard Form (SF) 50-B (Notification of Personnel Action)
* a Commander's Reprisal Prevention Plan
* Equal Employment Opportunity (EEO) Commission report
* discharge orders
* Federal recognition separation orders
* Army Discharge Review Board (ADRB) packet
* documents showing exhaustion of administrative remedies
* an ARNG promotion process for commissioned officer policy letter
* rebuttal to advisory opinion 

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.  After having had prior enlisted service in the Regular Army and ARNG, the applicant was appointed to the rank of 2LT in the NJARNG on 26 August 2001.  

3.  The applicant's Army Military Human Resources Record (AMHRR) contains records of several events.  

   a.  A civilian performance appraisal for the period 1 August 2001 to 31 July 2002 shows the applicant received an unsatisfactory rating.
   
   b.  On 20 September 2002, she received a letter of reprimand for failure to perform her duties as a Supervisory Pay and Voucher Examiner, General Schedule (GS) – 09, Military Technician in a satisfactory manner. 
   
   c.  A Supervisor's Record of Technical Employment shows that between 
25 July and 4 December 2003 she was cited for numerous infractions concerning her duties as a GS-09 and as a NJARNG Soldier.  Specifically, on 17 October 2003 she was cited for entering her supervisor's office with a recording device.

   d.  A letter of indebtedness was sent to her command on 25 August 2003, for failure to pay make timely payments for an automobile purchase and repairs. 
   
4.  She provided supporting documents for promotion to 1LT which show the following:

* a DA Form 705 (Army Physical Fitness Test (APFT) Scorecard) – she passed a record APFT on 26 April 2002
* a transcript from Roger Williams University – was awarded a Bachelor of Science in Criminal Justice on 18 May 2002 
* a DA From 1059 (Service School Academic Evaluation Report) – completed the ARNG Finance Officer Basic Course on 23 May 2002
* a NJARNG branch designation/functional area memorandum – she was awarded area of concentration 44A (Finance) on 31 October 2002 which was commensurate with the requirements of the position she was assigned in the state of NJ
* a DA Form 3349 (Physical Profile), dated 10 February 2003 – temporary profile for internal knee derangement – no APFT; expiration date of profile was 18 May 2003
* a DA Form 5501-R (Body Fat Content Worksheet (Female)), dated 8 May 2003 – she met the maximum allowable percentage of body fat (34.00)
* a DA Form 3349, dated 15 August 2003 – temporary profile for ovarian cyst – no APFT; expiration date of profile was 22 November 2003
* a DA Form 7349-R (Initial Medical Review – Annual Medical Certificate), dated 4 October 2003 – found fit for duty but recommended for further medical evaluation; granted permanent profile for alternate APFT event 

5.  Her record contains a DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)), dated 8 May 2003, which shows she was removed from the Army Weight Control Program. 

6.  The applicant provided six memoranda for record concerning her request for transfer from the Finance Branch to the Adjutant General Branch and inquiries for promotion to the rank of 1LT.  These documents are dated 19 June 2003, 
8 July 2003, 3 August 2003, 8 August 2003, 14 August 2003, and 21 November 2003.  

   a.  She submitted these documents to her supervisory chain stating she wanted command experience and had been accepted to a unit which would provide her that experience.  
   


   b.  In her requests she also inquired  when her promotion packet for 1LT would go forward to the NGB as her eligibility date for promotion was effective 
26 August 2003. 

7.  She also provided copies of several email transmissions between 22 August and 21 November 2003 that show she followed up several times concerning her requests for branch transfer and promotion to 1LT. 

8.  On 17 October 2003, she filed an IG complaint for her unit's refusal to submit her promotion for 1LT to the NGB.  She also prepared a memorandum on 
20 October 2003, addressed to Colonel (COL) K.L.M., in which she addressed her concerns with lieutenant colonel (LTC) H.R.S.

9.  The applicant also provided the following documents pertaining to the UTA and Split Unit Training Assembly (SUTA) for November 2003.

   a.  A Headquarters, NJ Army and Air National Guard, Army Bulletin, dated 
6 August 2003, which the applicant provides shows drill dates for Fiscal Year 2004.  A UTA was scheduled for 1 and 2 November 2003.

   b.  An email dated 29 October 2003, sent from LTC H.R.S. to the applicant, shows he requested she support the unit Mobilization Exercise (MOBEX) on 
22 and 23 November 2003 by performing a Split Unit Training Assembly (SUTA) for the previously scheduled UTA of 1 and 2 November 2003.

   c.  A memorandum, dated 22 November 2003, subject:  Request for SUTA for November Drill, indicates a request that orders be published for the applicant for the period 22 and 23 November 2003 for the purpose of supporting the unit MOBEX.

   d.  A NJARNG document, dated 23 November 2003, shows name of the applicant, date and inclusive hours of the SUTA as 1 and 2 November 2003 from 0700 hours to 1900 hours, and date of the scheduled SUTA as 22 to 
23 November 2003 for the purpose of supporting the MOBEX. 

	e.  A Leave and Earnings Statement shows, in part, she was paid for inactive duty training (IDT) during the 22 and 23 November 2003 UTA. 

10.  Her record contains a second DA Form 638 that shows she was Flagged for adverse actions which occurred on 22 November 2003.

11.  The applicant provided two memoranda of reprimand that include her rebuttal statements.
	a.  On 22 November 2003, the Deputy J1, COL K.L.M., reprimanded the applicant for appearing for IDT on 1 November 2003.  He stated she flagrantly ignored the orders of two superior officers not to perform IDT on 1 and 
2 November 2003 because her IDT weekend had been changed to 22 and
23 November 2003 in order to support the MOBEX.  Even after being told by these officers to leave the assembly, she refused to leave until he personally had to order her to depart.  

	b.  COL K.L.M. also stated her misconduct constituted a serious departure from the high standards expected of a commissioned officer in their command and her behavior would not be tolerated.  He recommended the permanent filing of the reprimand in her Official Military Personnel Record (presently named the Army Military Human Resources Record (AMHRR)).  He provided her with 
7 calendar days to submit any matters on her own behalf.  

	c.  On 24 November 2003, she submitted her rebuttal which stated she was informed in writing by her superiors to perform the scheduled drill on 1 and 
2 November 2003.  When she was asked by both LTCs to come to the UTA on 22 and 23 November 2003, she informed them she had an obligation to attend school on those days but was willing to alternate or assist in future MOBEX.

	d.  She also submitted that the reasons for her reprimand were unfair and unjustifiable.  She felt she should not be accountable for conflicting instructions and communication between a COL and LTC.  She added that LTC H.R.S. was qualified and available to conduct the briefing during the MOBEX.  If he had conducted the briefing during the MOBEX and she drilled during the 1 and 
2 November 2003 UTA, then both events would have been covered.  She supplied her supervisors a copy of her school schedule but it was not taken into consideration.  She requested the reprimand not go in her AMHRR.

	e.  On 6 December 2003, she received a General Officer Memorandum of Reprimand (GOMOR) from Brigadier General (BG) T.J.S., Assistant Division Commander, for appearing for IDT on 22 November 2003 with a personal recording device.  Despite previously receiving several orders from three superior commissioned officers forbidding her to possess a personal recording device while in a Government facility or during official time because of disruption to good order and discipline, she began utilizing a recording device during the MOBEX.  When she was ordered to turn off the device by a superior commissioned officer, she chose to openly and contemptuously defy this order by refusing to turn the recorder off.  

	f.  BG T.J.S. stated her misconduct constituted a serious departure from the high standards expected of a commissioned officer in their command and his intent was to permanently file the GOMOR in her AMHRR.  He gave her 
7 calendar days to submit any matters on her own behalf.  

	g.  The applicant provided copies of email transmissions which occurred on 
10 and 11 December 2003.  She requested an office call with BG T.J.S. prior to submitting her response to the reprimand.  He agreed to meet with her but strongly encouraged her to submit her response to the GOMOR in writing.  The meeting was scheduled for 19 December 2003; however, on 11 December 2003, the applicant requested to reschedule for a later date.

   h.  On 14 December 2003, she responded to the GOMOR and stated the allegation of her having a recording device was not true.  She felt the reprimand was unfair and unjustifiable.  She also added that she had never received an initial counseling regarding her duties as a Traditional Drilling National Guardsmen or provided a sponsor to train, assist, or guide her in the position she held.  She described the projects she completed for the unit and benefits of each.

   i.  She also stated she had spoken with the IG, an EEO counselor and The Adjutant General (TAG) secretary concerning these matters.  It was when she informed her supervisory chain that she had spoken with the TAG secretary that she received the reprimands.  She requested the GOMOR not be filed in her AMHRR.  
   
12.  Within the period her GOMOR was processed she completed an NGB Form 333 (Discrimination Complaint in the Army and Air National Guard), dated 
6 December 2003.  She provided the ABCMR a copy of this document in which she states she was being harassed and treated unfairly.  She was held up from conducting her APFT, being promoted, and transferring branches.  Also during this period she submitted the following actions:

   a.  On 8 December 2003, she filed an IG complaint against BG T.J.S. for giving her a GOMOR as he was not in her chain of command.  She stated he was not the TAG and therefore could not direct the filing of the document in her AMHRR.  She also stated she had filed other complaints against her chain of command which were not processed in accordance with applicable regulatory guidance. 

   b.  She filed another IG complaint on 10 December 2003 in regard to her request for promotion and branch transfer. 

13.  The applicant's record contains a memorandum, subject:  Proposed Adverse Action, dated 15 December 2003 to remove her from her position as a Guidance Counselor, Series 1740, GS-09, with the Education Services Section, Joint Headquarters, NJARNG and from the Federal Technician Program, effective not less than 30 days after her receipt of the proposed action.  She was cited for several adverse actions. 

14.  On 25 December 2003, she acknowledged receipt of the proposed action and submitted a 5-page rebuttal. 

15.  She provided an SF 50, dated 15 January 2004 that shows she was removed from her position as a GS-09, Series 1740 with the Federal government. 

16.  The applicant provided a copy of a Commander's Reprisal Prevention Plan showing she and her supervisory chain were counseled in March 2004.  

17.  An EEO Commission report, dated 10 February 2006, shows the applicant filed seven claims against her previous supervisory chain.  The EEO Commission ordered the applicant's agency to issue a letter to the applicant acknowledging receipt of the amendment of the original complaint, which included responses to claim 1, 2, 3, 6, and 7 as claims 4 and 5 were dismissed.  The final action taken on these complaints was not provided to the ABCMR. 

18.  Her record contains a separation packet which contains a request for exception to policy, dated 21 July 2005.  This memorandum requested to separate the applicant without a Federal recognition withdrawal board.  

   a.  It stated she had less than 5 years commissioned service and the law permitted separation without a board if the officer had less than 5 years commissioned service.  
   
   b.  Both Army Regulation 135-175 (Separation of Officers) and National Guard Regulation 635-101 (Efficiency and Physical Fitness Boards) were written under the provisions of ROPA (Reserve Officer Personnel Act) and each regulation reflects that an officer is entitled to a Federal Recognition Withdrawal Board if the officer has less than 3 years of commissioned service.  
   
   c.  The applicant was commissioned on 26 August 2001 and by law she could be separated without a board due to her date of commission which exceeds 
3 years. 

	d.  Her separation packet also contains a request for withdrawal of Federal recognition, dated 10 May 2005.  This document further recommended she be issued a General Discharge Certificate and was signed by the TAG, New Jersey National Guard.  

	e.  On 26 January 2006, the exception to policy to separate the applicant without a board was approved by the Deputy Chief of Staff, Army G-1.

19.  She provided copies of Orders 033-4, dated 2 February 2006, and Special Orders Number 34 AR, dated 2 February 2006.  These documents show she was honorably discharged from the NJARNG effective 24 January 2006.  

20.  The applicant's record contains Orders 243-003, dated 31 August 2006, and Special Orders Number 257 AR, dated 4 October 2006.  These orders amended the previously-issued orders which directed she be separated with an Honorable Discharge Certificate and show she was issued a General Discharge Certificate at both the State and Federal levels.

21.  She applied to the ADRB for an upgrade of her discharge within that board's 15-year statute of limitations and on 6 May 2011, the ADRB determined she was properly and equitably discharged.  Accordingly, her request for a change in the character of her service was denied. 

22.  The applicant provided a copy of an ARNG Promotion Process for Commissioned Officers policy letter, dated 16 December 2003.  This document outlines the procedures for requesting Federal recognition of 1LTs.

23.  On 10 August 2012, during the processing of this case, an advisory opinion was obtained from the Chief, Policy Personnel Branch, NGB who recommended disapproval of the applicant's request to be reinstated, promotion to 1LT and to receive back pay.  He stated upon review of the applicant's current request, no additional materials were provided to demonstrate that the actions of her command were not justified.

24.  She was provided a copy of the advisory opinion for rebuttal or response.  She responded on 28 August 2012 and wrote, in part:

	a.  An officer will be involuntarily separated without board action when the member has less than 3 years commissioned service and the only reason is for failure to meet the standards of a service school or detailed branch course due to academic or leadership deficiencies or for other disciplinary reasons.  She contends she was never disciplined while attending any of her service schools.  

	b.  She adds she was reprimanded for wanting to change her drill dates and did not get paid for all the days she attended.  She provided further argument that a State ARNG entity does not have the authority to revoke a federal order in order the change the characterization of her service.  She contends her reprimands were due to her filing EEO and EO complaints.  

25.  Army Regulation 135-155 (Army National Guard and Army Reserve Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for the promotion of Reserve Component officers.  Table 2-1 provides the time in grade requirements for promotion of commissioned officers.  It states for promotion from 2LT to 1LT, the minimum number of years in the lower grade is 2 years and the maximum number of years in the lower grade is 42 months.  

26.  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.

     a.  Chapter 8 states 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.  It also states a commissioned officer must complete the required minimum years of promotion service prior to being considered for promotion and Federal recognition in the higher grade.  

     b.  Paragraph 8-2 states promotion criteria is based on efficiency, time in grade, time in commissioned service, demonstrated command and staff ability, military and civilian education, and potential for service in the next higher grade.  Promotion is not used solely as a reward of past performance.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that she be reinstated into the NJARNG and be promoted to 1LT with all due back pay and interest was carefully considered.  

2.  Implicit in the Army's promotion and personnel systems are the universally accepted and frequently discussed principles that officers have a responsibility for their own careers.  The applicant was a 2LT in the ARNG with prior enlisted service.  She knew or should have known what it takes to get promoted.  

3.  National Guard Regulation 600-100 specifically states promotion criteria is based on efficiency, time in grade, time in commissioned service, demonstrated command and staff ability, military and civilian education, and potential for service in the next higher grade.  The evidence of record shows the applicant would have first been eligible for consideration for promotion to 1LT on 26 August 2003.  However, her record contains numerous documents which show her substandard performance as a Military Technician and an officer in the NJARNG.  Her record shows she was repeatedly counseled and/or reprimanded by her command for infractions such as insubordination and refusal to comply with direct orders and several of these infractions occurred prior to 26 August 2003.  

4.  There is no directive or law which states promotion to 1LT is automatic.  Promotions in the ARNG are a function of the State and in order to be extended Federal recognition in the higher grade, the officer must have satisfied the promotion requirements.  It is reasonable to presume that given her record of service, her command chose not to promote her to 1LT, which was their prerogative and within their authority.  As such, there appears to be no error or injustice which would warrant correction of her records to show she was promoted to 1LT.

5.  With respect to the applicant’s discharge, she contends she was not given a Federal recognition board prior to her separation and that her command acted unjustly and with prejudice.  By law and regulation, officers who have less than 
5 years of commissioned service are not required to be given a Federal recognition withdrawal board.  Her record further shows that even though a board was not required, her command requested an exception to policy to separate her without one.  This request was approved by the Chief of Staff of the Army G-1.

6.  As such, her separation was just and without violation of her rights.  Furthermore, the fact that the characterization of her service changed from Honorable to General was directed by the TAG of the NJARNG who works in conjunction with the NGB for Federal level actions. 

7.  In view of the foregoing, she is not entitled to reinstatement or an upgrade of her discharge.   





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)                                         AR20110017809





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ABCMR Record of Proceedings (cont)                                         AR20110017809



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