IN THE CASE OF:	  

		BOARD DATE:	  20 June 2013

		DOCKET NUMBER:  AR20120018545 


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 record to show he received Federal recognition in the rank/grade of lieutenant colonel (LTC)/O-5 on 20 October 2008 instead of 6 January 2009. 

2.  He states his promotion to LTC/O-5 was delayed approximately 81 days due to an administrative error in his promotion packet.  State orders were issued with a promotion effective date of 31 July 2008 and sent to the National Guard Bureau (NGB) on 14 August 2008 for issuance of Federal recognition orders.  The administrative error (an incorrect signature by a board member that was no fault of his own) was discovered on 14 October 2008 by the NGB.  The promotion packet was resubmitted to the NGB on 17 October 2008.  Federal recognition orders were then issued with an effective date of 6 January 2009.  If not for the clerical error, his promotion would have been effective on or about 20 October 2008.  

3.  He provides copies of State orders and officer action logs.  

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.  Having had prior enlisted service in the Regular Army and Ohio Army National Guard (OHARNG), on 1 February 1992, the applicant accepted an appointment as a Reserve commissioned officer of the Army in the rank/grade of second lieutenant/O-1.  On 6 February 1992, he took the oaths of office as an officer in the OHARNG.  

3.  On 7 January 2004, NGB issued Special Orders Number 2 AR extending Federal recognition to him in the rank/grade of major (MAJ)/O-4 effective the date of the orders.

4.  An NGB Form 89 (Proceedings of a Federal Recognition Examining Board (FREB)), dated 31 July 2008, shows an FREB recommended he be granted Federal recognition as a LTC/O-5 in the OHARNG.

5.  On 17 October 2008, the Adjutant General's Department, State of Ohio, issued Orders 291-169 promoting him to LTC/O-5 effective 17 October 2008.  The effective date on the orders is lined through and the date "JAN 06 2009" is stamped on the orders. 

6.  Also on 17 October 2008, the same department issued Orders 291-170 revoking Order 225-058 of the department's 12 August 2008 series.  Order 
225-058 is not available for review; however, the revocation order indicates it pertained to the applicant's promotion.  The revocation order shows the reason for revocation of Order 225-058 was "WRONG EFFECTIVE DATE."

7.  A second NGB Form 89, dated 17 October 2008, shows a second FREB recommended that he be granted federal recognition as a LTC/O-5 in the OHARNG.  

8.  On 6 January 2009, the NGB issued Special Orders Number 5 AR extending Federal recognition to him in the rank/grade of LTC/O-5 effective the date of the orders.

9.  On 31 January 2012, he retired as a LTC/O-5 after completing 21 years, 1 month, and 24 days of active duty service.  

10.  He provides copies of the State orders addressed above and two Officer Action Logs.  The logs show a promotion action was sent to the NGB on 
14 August 2008 and returned to the State for corrections on 14 October 2008.  This packet was reboarded by an FREB on 17 October 2008 and returned to the NGB on 17 October 2008.  The logs also show a Federal recognition order was issued on 6 January 2009.  

11.  On 11 October 2012, during the processing of this case, the Chief, Personnel Policy Division, NGB, provided an advisory opinion.  The advisory official recommended disapproval of the applicant's request for an adjustment of his date of rank (DOR) stating that while the delay was not the applicant's fault, it does not appear the error was malicious or intentional on the part of the OHARNG.  Once the error was discovered, the OHARNG acted expeditiously to correct the problem and get the applicant promoted.  The OHARNG does not concur with the recommendation for disapproval.  

	a.  The advisory official states the applicant's promotion packet was submitted to an OHARNG FREB for review on 31 July 2008.  He was selected for promotion and the OHARNG issued Orders 225-058, dated 12 August 2008, promoting him to LTC/O-5 effective 31 July 2008.  The OHARNG forwarded his promotion packet to the NGB Federal Recognition section on 14 August 2008.

	b.  Upon review, the NGB Federal Recognition section found an error and the promotion packet was returned to the OHARNG on 14 October 2008.  The OHARNG had selected ineligible board members to serve on the 31 July 2008 FREB.  A second FREB was convened and the applicant's promotion packet was re-boarded on 17 October 2008.  He was selected for promotion again, and the results were immediately forwarded to the NGB Federal Recognition section for processing.  NGB Special Orders Number 5 AR, dated 6 January 2009, promoted him to LTC/O-5 effective 6 January 2009.

	c.  In consultation with the NGB Federal Recognition section, it was confirmed his promotion was a unit vacancy promotion.  The effective date of promotion and DOR of an officer promoted under the position vacancy system is the date the Chief, NGB, extends Federal recognition.  Title 10, U.S. Code, Section 14308, paragraph (f), 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."  There is no entitlement to pay and allowances prior to the date the Chief, NGB, extends Federal recognition.

	d.  Even if consideration were given to when the initial promotion package was received by the NGB Federal Recognition section, one would have to take into account the approximately 120 days for a promotion packet to go through the necessary approval channels and be signed by the Secretary of Defense.  As originally submitted, he could have been promoted to LTC/O-5 sometime in December 2008.  The time between this date and the date he was actually promoted is minimal and does not necessarily warrant an amendment.  The DOR is not normally reflected on Federal recognition orders.  While the promotion effective date cannot be changed, for promotion eligibility purposes, the State could correct his record in the Standard Installation/Division Personnel System (SIDPERS) to show his DOR as 31 July 2008.

12.  The applicant was provided a copy of the advisory opinion for his review and comment.  He did not respond in the time allotted.  

13.  Title 10, U.S. Code, Section 12203 (a) states:  “Appointments of reserve officers in commissioned grades of lieutenant colonel and commander or below, except commissioned warrant officer, shall be made by the President alone.”

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request for correction of his record to show he received Federal recognition in the rank/grade of 
LTC/O-5 on 20 October 2008 instead of 6 January 2009.

2.  Although, through no fault of his own, there was a delay in the processing of his Federal recognition packet, the evidence shows the impact of this delay was minimal.  The OHARNG acted quickly to correct the error and resubmit his packet.  After his packet was resubmitted, he was granted Federal recognition and promoted effective 6 January 2009 in accordance with the applicable law and regulation.  

3.  Before receiving Federal recognition, his name would have been placed before the Secretary of Defense, who has been delegated Presidential authority to approve promotion of officers in the rank/grade of LTC/O-5.  The governing statutes effectively prohibit changing the effective date of Federal recognition to a date earlier than that on which an officer's promotion is approved under Presidential authority.  

4.  The advisory official has opined that the State could change the DOR for LTC/O-5 shown in SIDPERS.  If he so desires, the applicant may pursue that change through the State Adjutant General.  

5.  In view of the foregoing, there is an insufficient basis upon which to grant the requested relief.  

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)                                         AR20120018545



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ABCMR Record of Proceedings (cont)                                         AR20120018545



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