IN THE CASE OF:	  

		BOARD DATE:	    18 July 2013

		DOCKET NUMBER:  AR20130007974 


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 her effective date and date of rank (DOR) to captain (CPT) in the New York Army National Guard (NYARNG) be adjusted from 
8 March 2013 to November or December 2012. 

2.  The applicant states she originally had 97 days on Federal recognition when the scroll she was on was removed and restarted again.  It is her understanding that two other members on the same scroll fell into the Department of the Army cycle resulting in her removal from the scroll.  She believes her Federal recognition orders should have been published in the November or December 2012 timeframe.  Her promotion packet was sent to the Federal Recognition section of the National Guard Bureau (NGB) at the end of August 2012 and the state promotion order was published on 23 August 2012.

3.  The applicant provides state promotion order and a memorandum from the NYARNG. 

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer of the NYARNG and executed an oath of office on 20 November 2008.

2.  She completed the Adjutant General Basic Officer Leader Course from May to July 2010 and she was promoted to first lieutenant on 28 July 2010. 

3.  On 23 August 2012, the NYARNG published Orders 236-1022 promoting her to CPT. 

4.  On 13 March 2013, the NGB published Special Orders Number 74 AR extending her Federal recognition for this promotion with an effective date and DOR as 8 March 2013. 

5.  An advisory opinion was obtained on 12 June 2013 from the NGB in the processing of this case.  An NGB official recommended partial approval.  He stated:

	a.  The Federal Recognition Board (FRB) section of the NGB states the Department of the Army (DA), Office of the Director of Military Personnel Management (DMPM) cancelled scroll P02-13 and P03-13 due to a DA Board conflict.  The scroll left the NGB FRB section for the Secretary of Defense on 
16 October 2012.  The NGB created a new promotion scroll to replace the cancelled scroll for the Soldiers who were negatively impacted.  The two scrolls, PL01-13 and PL04-13 were signed on 9 January 2013. 

	b.  The NGB and state recommend the applicant receive partial administrative relief in that her effective date of promotion and DOR be adjusted to 9 January 2013, the date the Secretary of Defense approved the scroll.  She should also be entitled to back pay and allowances. 

	c.  The state concurs with this recommendation.

6.  The applicant was provided with a copy of this advisory opinion but she did not respond. 

7.  National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions) provides procedures for processing all applications for Federal recognition of ARNG commissioned officers.  Chapter 8 provides for promotions.  It indicates that unit vacancy promotions of qualified officers are based on the recommendations of the member's immediate commander, properly endorsed by all commanders concerned and the Adjutant General.  It also provides procedures for processing all applications for Federal recognition by the NGB.  Section II explains promotions to fill unit vacancies (now called positions vacancies) and states to be considered for Federal recognition and subsequent Reserve of the Army promotion following State promotion to fill a position vacancy, an ARNG commissioned officer must meet the medical, educational, physical, security, and years of service requirements.  

8.  Title 10, U.S. Code, section 14308(f) states that the effective date of a promotion of a Reserve commissioned officer in the Army who is extended Federal recognition in the next higher grade in the ARNG shall be the date in which such Federal recognition in that grade is so extended.

9.  Title 10, U.S. Code, section 12203 provides that appointments of Reserve officers in the grade of lieutenant colonel and below shall be made by the President.  This authority has been delegated to the Secretary of Defense via executive order.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was promoted to 1LT and extended Federal recognition on 28 July 2010.  She was then promoted to CPT by the state in what appears to be a unit vacancy on 22 August 2012.  Normally, processing time for the extension of Federal recognition is 90 to 120 days.  

2.  However, it appears when her packet was forwarded through the NGB to the DMPM for scrolling action, she was also required to go before a mandatory DA promotion which resulted in her removal from that scroll.  She was placed on a subsequent scroll that was approved by the Secretary of Defense on 9 January 2013.  

3.  The Army Board for Correction of Military Records (ABCMR) may only correct Army records.  The Board has no authority to correct records created by the other Services or the Department of Defense.  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.  Consequently, 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.

4.  Based on the foregoing evidence, although the ABCMR does not have the authority to grant the applicant an effective date and DOR for promotion to CPT as November or December 2012, since her scroll was approved on 9 January 2013, she is entitled to correction of her records to show this date as her effective date of promotion and DOR, with entitlement to back pay and allowances. 



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 Special Orders Number 74 AR, dated 13 March 2013, to show her effective date of promotion as 9 January 2013
* paying the applicant back pay and allowances as a result of this correction

2.  The Board further determined that 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 her effective date and date of rank for promotion to CPT to November or December 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)                                         AR20130007974





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ABCMR Record of Proceedings (cont)                                         AR20130007974



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