IN THE CASE OF:	  

		BOARD DATE:	  7 November 2013

		DOCKET NUMBER:  AR20120021008 


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) to captain (CPT) to read 6 October 2010.

2.  The applicant states he could not submit his promotion packet for CPT until the Army Board for Correction of Military Records (ABCMR) had finalized his DOR to first lieutenant (1LT).  With his DOR to 1LT being corrected to 19 July 2008, his promotion eligibility date was amended to 6 October 2010.  Due to the administrative delays in making the DOR corrections he was not able to complete his promotion packet in order to meet the earlier date for consideration and the 
6-month delay in his promotion to CPT should be corrected.  He was deployed to Iraq from 1 April 2010 to 25 January 2011 as the battalion chaplain.  Army regulations state a fully-qualified 1LT chaplain with 2 years of time in grade (TIG) is eligible for promotion to CPT.

3.  The applicant provides:

* 11 April 2011 National Guard Bureau (NGB) CPT promotion orders
* 25 October 2010 NGB 1LT Federal recognition orders for the Georgia Army National Guard (ARNG)
* 27 July 2010 NGB 1LT Federal recognition orders for the Alabama ARNG
* 30 June 2009 1LT Federal recognition orders for the Georgia ARNG
* 22 November 2010 Georgia ARNG CPT promotion orders
* ABCMR Record of Proceedings Docket Number AR20090019781


CONSIDERATION OF EVIDENCE:

1.  Alabama ARNG Orders 197-500, dated 16 July 2007, appointed the applicant as a 2LT in the ALARNG effective 13 July 2007.

2.  On 30 October 2007, NGB Special Orders Number 266 AR extended Federal recognition to the applicant for his transfer from the Alabama ARNG to the Georgia ARNG effective 2 October 2007.

3.  On 26 January 2009, Georgia ARNG Orders 026-775 promoted the applicant to 1LT with an effective date and DOR of 13 January 2009.

4.  NGB Special Orders Number 20 AR, dated 29 January 2009, extended Federal recognition in the ARNG in the rank of 1LT to the applicant with an effective date and DOR of 13 January 2009.

5.  On 26 May 2009, the Georgia ARNG published Orders 146-757 appointing the applicant in the Georgia ARNG, Chaplain Branch, in the rank of 1LT effective 9 May 2009.

6.  On 30 June 2009, NGB Special Orders Number 160 AR extended Federal recognition to the applicant for reappointment as a 1LT to the Chaplain Branch with a DOR of 13 January 2009.

7.  On 26 May 2010, the ABCMR granted the applicant's request by:

	a.  amending NGB Special Orders Number 218 AR, dated 10 September 2007, to show he was extended Federal recognition in the rank of 2LT effective 20 July 2006;

	b.  amending NGB Special Orders Number 20 AR, dated 29 January 2009, to show he was extended Federal recognition for promotion to 1LT with an effective date and DOR of 19 July 2008; and

	c.  paying him all back pay and allowances due as a result of these corrections.

8.  The Alabama ARNG corrected the applicant's records on 27 July 2010 with the Georgia ARNG making the corrections on 25 October 2010.

9.  On 22 November 2010, the Georgia ARNG promoted the applicant to CPT with an effective date and DOR of 17 November 2010.

10.  An advisory opinion was obtained from the Chief, Personnel Policy Division, NGB, in the processing of this application.  It noted that the applicant's records correction was not processed in a timely manner and this delay resulted in a delay of his subsequent promotion to CPT.  The applicant's promotion packet was received on 7 December 2010 and was processed for scrolling on 13 December 2010, with placement on the PL08-11 scroll.  PL08-11 was signed by the Secretary of Defense on 11 April 2011.  While a 1LT is eligible for promotion to CPT upon 2 years of TIG, it does not mean an automatic promotion. 
The scrolling process takes approximately 120 days from the date a promotion packet is received by NGB.  The applicant received a unit vacancy promotion and NGB recommended adjusting the applicant's DOR to CPT to 17 November 2010 with back pay and allowances as a result of the correction.

11.  A copy of the advisory opinion was forwarded to the applicant for comment; no response to the opinion has been received to date.

12.  Army Regulation 135-155 (ARNG and Army Reserve – Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) states promotion from 1LT/O-2 to CPT/O-3 requires a minimum TIG of 2 years with a maximum TIG of 5 years.

13.  Title 10, U.S. Code (USC), section 14308(f), states the effective date of a promotion of a Reserve commissioned officer of the Army or the Air Force who is extended Federal recognition in the next higher grade in the ARNG or the Air National Guard under Title 32, USC, section 307 or 310, shall be the date on which such Federal recognition in that grade is so extended.  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.

14.  Title 10, USC, section 12203, provides that appointments of Reserve officers in the grades of LTC and below shall be made by the President.  This authority has been delegated to the Secretary of Defense via Executive Order 13384, section 1, dated 27 July 2005.

15.  Based on advice from the Department of Justice, that law prohibits redelegation below the Secretary of Defense of the President's authority to appoint military officers, authority granted to the Secretaries of the Military Departments in Secretary of Defense memorandum, dated 9 December 1985, subject:  Redelegation of Authority Under Executive Order 12396, to appoint officers under Title 10, USC, section 642, in the grades of 1LT/O-2 and CPT/O-3, was rescinded effective 1 July 2005.  All military appointments under Title 10, USC, section 12203 (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, must also be submitted to the Secretary of Defense.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DOR to CPT should be adjusted to 6 October 2010 and that he should receive back pay and allowances as a result of this correction was carefully considered; however, there are some errors the ABCMR may not correct.

2.  Without question, the failure to timely process the applicant's earlier correction for Federal recognition resulted in a delay in the processing of his appointment as a CPT.  Title 10, USC, section 1552, the statutory authority for the ABCMR, gives the Board broad 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 Department of the 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 an outcome dictated by, another statute.  However, the ABCMR may accomplish a correction by changing an operative fact in the record, thereby making a correction in compliance with that statute.  Where officer promotion issues are involved that require approval by the Secretary of Defense, the Board's hands are tied.

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

6.  However, when a valid appointment has been accomplished, the Board can grant an officer an earlier DOR if warranted by the facts in the case.  As a matter of equity, it would be appropriate to grant the applicant partial relief in this case by amending his DOR to CPT to 17 November 2010 based on the date he officially became eligible for consideration based on his TIG plus the normal processing time frames.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army and State ARNG records of the individual concerned be corrected by amending his DOR to CPT to read 17 November 2010.

2.  The Board further determined the evidence presented is 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:

	a.  a DOR earlier than 17 November 2010; and

	b.  changing his effective date of promotion to CPT with entitlement to retroactive 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)                                         AR20120021008



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ABCMR Record of Proceedings (cont)                                         AR20120021008



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