IN THE CASE OF:	  

		BOARD DATE:	    24 July 2012

		DOCKET NUMBER:  AR20120008292 


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 show his effective date for promotion to captain, pay grade O-3 as 20 November 2010.

2.  The applicant states an injustice was caused by the length of time it took to evaluate his service for constructive credit as a Medical Service (MS) Corps officer.  He was originally given a date of rank to first lieutenant of 14 June 2010, which was later corrected to 20 November 2008.  This error made him ineligible to submit a packet for promotion to captain until after his appointment as an MS officer had been reviewed.  If this review had not been necessary, he could have submitted his promotion packet in time for selection effective 20 November 2010.

3.  The applicant provides copies of:

* Emails dated in April 2012 between himself and the California Army National Guard (CAARNG)
* Special Orders Number 90 AR, National Guard Bureau (NGB), dated         9 April 2009
* Special Orders Number 65 AR, NGB, dated 22 March 2011
* Special Orders Number 223 AR, NGB, dated 15 September 2011
* Special Orders Number 128 AR, NGB, dated 16 April 2012

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was serving as a captain, pay grade O-3 in the CAARNG.
2.  Special Orders Number 317 AR, NGB, dated 14 December 2006, show that the applicant was extended Federal Recognition as a second lieutenant, Infantry, effective 8 November 2006.

3.  Special Orders Number 90 AR, NGB, dated 9 April 2009, show that the applicant was extended Federal Recognition as a first lieutenant, Infantry, effective 20 November 2008.

4.  Special Orders Number 65 AR, NGB, dated 22 March 2011, show that the applicant was initially appointed as a first lieutenant, MS, effective 21 January 2011.  His date of rank as a first lieutenant is shown as 14 June 2010.

5.  Special Orders Number 223 AR, NGB, dated 15 September 2011, amended Special Orders Number 65 AR, NGB, dated 22 March 2011, to change the applicant's date of rank as a first lieutenant to 20 November 2008.

6.  Special Orders Number 128 AR, NGB, dated 16 April 2012 show that the applicant was extended Federal Recognition as a captain, MS effective 
15 February 2012.

7.  The email, dated in April 2012, as provided by the applicant, states that he was informed by a representative of the CAARNG that the state could not change the effective date of rank that was given by the Federal Recognition Board at NGB.

8.  Title 10, U.S. Code, section 14308f (Effective date of promotion after Federal Recognition) states the effective date of a promotion of a reserve commissioned officer of the Army who is extended Federal recognition in the next higher grade in the ARNG under section 307 or 310 of Title 32 shall be the date on which such Federal Recognition in that grade is so extended.

9.  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.

10.  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.  Chapter 8 of this regulation 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.  Promotion from 1LT to CPT requires a minimum of 2 years time in grade.

11.  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 that his military records should be corrected to show his effective date for promotion to captain, pay grade O-3 as 20 November 2010 because of the time it took to evaluate his service for constructive credit as an MS officer.

2.  The available evidence of record does not indicate any reason the applicant could not have submitted a promotion packet for captain as an Infantry officer in 2010.  The applicant has not provided any argument or explanation as to why he did not submit such.  It appears that he chose to wait until he could compete for promotion as an MS officer.  In addition, since he was not appointed as an MS officer until 21 January 2011, it does not appear that he could have submitted a promotion packet for captain as an MS officer in 2010.

3.  The available evidence of record does show that the applicant's date of rank for first lieutenant, MS was initially entered incorrectly when he was extended Federal Recognition.  However, this error was subsequently corrected.

4.  Scroll changes cannot be accomplished due to change in the delegation authority.
5.  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)                                         AR20120008325



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ABCMR Record of Proceedings (cont)                                         AR20120008292



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