IN THE CASE OF:	  

		BOARD DATE:	    20 August 2013

		DOCKET NUMBER:  AR20120019865 


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 date of rank (DOR) as a captain (CPT) to 7 October 2011 and back pay and allowances as a result of this correction.

2.  The applicant states:

   a.  Due to the needs of his unit and the team he was going to be assigned to, he reverted to the rank of sergeant (SGT) to attend the Special Forces Qualification Course.  Upon completion of this mission he was reappointed as an officer in the Alabama Army National Guard (ALARNG). 

   b.  On 14 June 2011, his promotion packet for CPT was submitted, subsequently approved by the Federal Recognition (FEDREC) Board, and sent to the National Guard Bureau (NGB).  The request was deleted by the NGB on 23 September 2011, for having inadequate time in grade (TIG) for promotion; however, his reappointed DOR as a first lieutenant (1LT) was calculated without consideration of his previous commissioned officer time. 
   
   c.  He further states once the error was identified, it took almost 3 months to correctly recalculate his DOR so that his promotion packet could be resubmitted.  He originally submitted his packet on 14 June 2011.  It took from 14 June 2011 to 10 January 2012 to correct the administrative error with his DOR to allow his packet to go forward to the NGB for processing.  He was subsequently promoted to the rank of CPT on 6 April 2012.  He requests the Board take into consideration the approximately 6 months of administrative wrangling and grant him relief and a DOR to CPT of 7 October 2011.   

3.  The applicant provides:

* Special Orders Number 348 AR
* Two memoranda
* Special Orders Number 320 AR
* Special Orders Number 169 AR
* Orders 178-502
* Special Orders Number 146 AR
* Orders 019-693
* Special Orders Number 131 AR
* Electronic mail (Email) 22 pages 
* ARNG Retirement Points History Statement
* Page 23 of National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions)

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the ALARNG, the applicant was honorably discharged from the ARNG and as a Reserve of the Army and subsequently appointed in the rank/grade of second lieutenant/O-1 in the ARNG.  Special Orders Number 8 AR, dated 15 January 2004, extended him Federal recognition for his initial appointment effective 18 December 2003.  He was subsequently promoted to the rank/grade of 1LT/O-2 effective 18 December 2005.

2.  The applicant submitted a request for unqualified resignation to become effective 14 November 2006 or as soon as practicable thereafter.  He desired to tender his resignation to immediately reenlist and be assigned to a Special Forces Group to attend the Special Forces Qualification Course in January 2007, as a SGT and later to serve as a noncommissioned officer in the Special Forces.

3.  On 14 November 2006, the applicant was honorably separated from the ARNG and transferred to the U.S. Army Reserve (USAR) Control Group (Individual Ready Reserve).  Special Orders Number 320 AR, dated 
19 December 2006, show that FEDREC was withdrawn from the applicant and he was transferred to the USAR effective 14 November 2006.

4.  On 20 December 2006, the applicant enlisted in the ARNG for 3 years, in the rank/pay grade of SGT/E-5.

5.  On 21 April 2010, the applicant was honorably discharged on appointment as a commissioned officer and he was subsequently appointed a Reserve commissioned officer on 22 April 2010 in the rank/grade of 1LT/O-2.  Special Orders Number 169 AR, dated 5 August 2010, show he received FEDREC for his initial appointment on 22 April 2010.

6.  The applicant provides and his record contains Orders 178-502, issued by Joint Force Headquarters ALARNG, dated 27 June 2011, which show he was promoted to the rank/grade of CPT/O-3, effective 22 June 2011.

7.  The applicant also provides and his record contains Orders 019-693, issued by Joint Force Headquarters ALARNG, dated 19 January 2012, which show he was promoted to the rank/grade of CPT/O-3 effective 19 January 2012.

8.  Special Orders Number 131 AR, dated 18 April 2012, show he was extended FEDREC and promoted to the rank/grade of CPT/O-3 effective 6 April 2012. 

9.  An advisory opinion was obtained on 5 November 2012 during the processing of this case.  The Deputy Chief of the Personnel Policy Division, NGB, recommended that the applicant's request for an adjustment of his DOR and back pay and allowances due to this adjustment be approved.  Additionally, this official stated:

   a.  When calculating the applicant's DOR following his reappointment as a commissioned officer, the ALARNG did not factor in his prior service as an officer; therefore, an administrative error resulted in a promotion delay of approximately 6 months due to no fault of the applicant.  

   b.  The applicant was promoted by the ALARNG to the rank of CPT on 
27 June 2011.  The ALARNG submitted the promotion to the NGB for FEDREC.  His packet was visible on the FEDREC website in August 2011; however, it was deleted from the site in November 2011 and returned to the State as a result of the applicant having not met the TIG requirements for promotion.

	c.  Upon review of the promotion packet, the ALARNG realized the administrative error and worked to correct the TIG.  After a lengthy process, the correction was made, and a new promotion packet was submitted to the NGB in January 2012 for FEDREC.

   d.  The State concurred with the recommendation.

10.  On 5 November 2012, the applicant was provided a copy of the NGB's advisory opinion.  On 20 November 2012, he concurred with the findings and the opinion of the NGB.

11.  Title 10, USC, section 14308(f) (Effective date of promotion after FEDREC), states the effective date of a promotion of a Reserve commissioned officer of the Army or the Air Force who is extended FEDREC in the next higher grade in the ARNG or the Air National Guard under section 307 or 310 of Title 32 shall be the date on which such FEDREC in that grade is so extended.  Pursuant to Title 10, USC, section 741(d) (2) provides that unless otherwise provided by law, the DOR of an officer who holds a grade as a result of a promotion is the date of his appointment to that grade.

12.  Title 10, USC, section 12203, provides that appointments of Reserve officers in the grades of lieutenant colonel and below shall be made by the President.  This authority has been delegated to the Secretary of Defense.  

13.  Per Title 10, USC, section 1552, the Army Board for Correction of Military Records (ABCMR) acts on behalf of the Secretary of the Army in correcting Army records.  This statute does not provide the Board with authority to correct a determination reserved under law to the Secretary of Defense.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DOR to CPT should be corrected to
7 October 2011 and that he receive back pay and allowances as a result of this correction was carefully examined; however, there are some errors the ABCMR may not correct.

2.  Without question, the failure to process the applicant's FEDREC paperwork for his reappointment as a CPT was in error and occurred through no fault of his own.  Title 10, USC, section 1552, the statutory authority for the ABCMR, gives the Board authority to correct Army records to remove errors or to remedy an injustice; however, the authority granted by this statute is not unlimited.

3.  The ABCMR may only correct Army records.  The Board has no authority to correct records created by the other Services or the Department of Defense.

4.  Any correction by the ABCMR must comport with other laws.  The Board may not ignore a requirement contained in, or outcome dictated by, another statute.  Typically, the ABCMR achieves this by changing an operative fact in the record, thereby making a correction in compliance with that statute.  Where officer personnel issues are involved that require approval by the Secretary of Defense, the Board's hands are often tied.

5.  Consequently, based on the authorities cited above, any correction to the applicant's effective date of promotion would effectively amend the Secretary of Defense's action and goes beyond the authority of this Board.

6.  However, when a valid appointment has been accomplished, the Board can take action to grant an officer an earlier DOR if warranted by the facts in the case.  Based upon this guidance, and as a matter of equity, it would be appropriate to grant the applicant partial relief in this case by amending the applicant's DOR to CPT to 7 October 2011 with an effective date of promotion of 6 April 2012.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant's DOR to CPT to 7 October 2011. 

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing his effective date of promotion to CPT to 7 October 2011 and payment of back pay and allowances.



      __________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)                                         AR20120019865



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ABCMR Record of Proceedings (cont)                                         AR20120019865



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