IN THE CASE OF: STEINER, CASEY B.
BOARD DATE: 12 November 2013
DOCKET NUMBER: AR20130005074
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 adjustment of his date of rank (DOR) to major (MAJ) to 1 November 2012.
2. The applicant states that:
a. He was selected by a Department of the Army (DA) promotion board for MAJ. His DOR is listed as 9 January 2013, but it should be 1 November 2012.
b. DA Personnel Policy Guidance, page 196 states that: "A mobilized officer who is selected for promotion by a DA Mandatory promotion board and is on an approved promotion list shall (if not promoted sooner or removed from the promotion list by the President or declination) be promoted without regard to the existence of a vacancy, on the date on which the officer completes the maximum years of service in grade as indicated on table 1." Per Title 10, U.S. Code (USC), section 14303, the maximum years of service in grade for a captain (CPT) is 7 years.
c. He is currently a mobilized Army National Guard Officer. He was promoted to CPT on 1 November 2005, while in the Regular Army. He has provided his DD Form 214 (Certificate of Release or Discharge from Active Duty) showing he left active duty service on 20 December 2008. He also provided several documents showing he had no break in service and became a member of the Missouri Army National Guard (MOARNG) on 21 December 2008. He reached his maximum years of service in the grade of CPT on 1 November 2012.
d. When he brought this issue to the attention of his Brigade S1 and after checking with the MOARNG J1, it was determined that since his promotion orders were cut, the Army Review Boards Agency was his only recourse to have his DOR amended to 1 November 2012.
3. The applicant provides copies of:
* his CPT promotion orders
* his DD Form 214
* his Federal Recognition (FEDREC) orders to CPT
* his active duty orders reporting 4 June 2012
* his deployment temporary change of station orders, dated 19 July 2012
* his Personnel Qualification Record, prepared 28 November 2012
* FY12 MAJ promotion list results showing his name as recommended
* his MAJ promotion orders
* his FEDREC orders to MAJ
* National Guard Bureau (NGB) letter for promotion to MAJ with a DOR of
9 January 2013
* MOARNG letter announcing his promotion to MAJ
* pages of Title 10, USC, section 14304, Eligibility for Consideration for Promotion: Maximum years of service in grade
* DA Personnel Policy Guidance for Overseas Contingency Operations, pages 1-5 and 194-196
CONSIDERATION OF EVIDENCE:
1. The applicant is currently serving as a MAJ in the MOARNG.
2. He was promoted to MAJ with an effective date and DOR of 9 January 2013. Federal recognition of the promotion was granted on 30 January 2013.
3. In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB, Arlington, Virginia. The advisory official recommends partial approval of the applicant's request and notes:
a. The applicant was selected for promotion by the FY12 DA Promotion Board; the official release date of the board results was 8 November 2012. He was promoted to MAJ with an effective date and DOR of 9 January 2013.
b. The applicant was mobilized on 3 August 2012. The DA Personnel Policy Guidance, paragraph 13-10b(3)(d) states: "A mobilized officer who is selected for promotion by a DA Mandatory promotion board and is on an approved promotion list shall (if not promoted sooner or removed from the promotion list by the President or declination) be promoted without regard to the existence of a vacancy, on the date on which the officer completes the maximum years of service in grade."
c. The applicant reached the maximum TIG as a CPT on 1 November 2012. Because of this, he contends he should be promoted effective that date because of Title 10, USC, section 14304 and the DA Personnel Policy Guidance, which both state the maximum time in grade (TIG) is 7 years.
d. Although the maximum TIG as a CPT is 7 years, Army Regulation (AR) 135-155 (Army National Guard and U.S. Army Reserve - Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) states: "If an officer selected by a mandatory promotion board has a maximum TIG date that is before the approval date of the board, the officer's promotion date and effective date will be no earlier than the date of approval of the mandatory board by which recommended." The applicant's DOR cannot be earlier than 8 November 2012.
e. His DOR should be backdated to 8 November 2012 and he should receive back pay and allowances.
4. On 19 June 2013, a copy of the advisory opinion was sent to the applicant for information and an opportunity to submit comments and/or rebuttal. A response was not received.
5. 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 via Executive Order 13384, section 1, dated 27 July 2005.
6. 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 for the Secretary of Defense.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his DOR should be adjusted to 1 November 2012 because that is the date he reached the maximum TIG as a CPT.
2. NGB recommended the applicant's DOR be backdated to 8 November 2012, and that he receive back pay and allowances. Although the applicant reached the maximum TIG of 7 years as a CPT on 1 November 2012, Army Regulation 135-155 states an officer's promotion date and effective date will be no earlier than the date of approval of the mandatory board by which recommended. The applicant was selected for promotion on the FY12 DA Promotion Board; the official release date of the board results was 8 November 2012. He was promoted to MAJ with an effective date and DOR of 9 January 2013. The applicant's DOR cannot be earlier that 8 November 2012.
3. 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.
4. 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.
5. 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. 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.
6. 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.
7. However, when a valid appointment has been accomplished, the Board may 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 relief by amending his DOR to MAJ to
8 November 2012. His effective date of promotion to MAJ remains 9 January 2013.
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 the applicant's DOR to MAJ to read 8 November 2012.
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 changing his DOR to 1 November 2012.
_______ _ _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) AR20100013074
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ABCMR Record of Proceedings (cont) AR20130005074
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