IN THE CASE OF:
BOARD DATE: 20 August 2013
DOCKET NUMBER: AR20130008230
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 an earlier date.
2. The applicant states that his original promotion scroll P02-13 was cancelled and he was placed on promotion scroll P14-13 through no fault of his own. New York State's Federal Recognition Board published Orders 236-1033 with a State promotion effective date of 22 August 2012.
3. The applicant provides copies of:
* New York Army National Guard (NYARNG) Orders 236-1033 showing his promotion effective date and DOR for MAJ of 22 August 2012
* Headquarters, NYARNG memorandum, dated 26 March 2012, subject: Delay in Unit Vacancy Promotion
CONSIDERATION OF EVIDENCE:
1. The applicant is currently serving as a MAJ in the NYARNG.
2. He was promoted to MAJ with an effective date and DOR of 22 August 2012. Federal recognition of the promotion was granted on 8 March 2013.
3. In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, National Guard Bureau (NGB), Arlington, Virginia. The advisory official recommends approval of the applicant's request and notes:
a. The applicant's promotion effective date should be adjusted to 9 January 2013 and he should receive back pay and entitlements at the MAJ rate. His promotion eligibility date should be 22 August 2012.
b. The applicant's promotion was Federally recognized effective 8 March 2013; this date is 6 months after his packet was submitted to NGB. He was placed on a promotion scroll, but the scroll was recalled due to issues pertaining to other officers on the scroll. He was then placed on a later scroll.
c. The NGB Federal Recognition Section indicated that promotion scrolls P02-13 and P03-13 were sent to the Secretary of Defense on 16 October 2012 but were cancelled due to a "DA [Department of the Army] Board conflict." NGB created new promotion scrolls to replace the cancelled scrolls for the Soldiers affected. The two scrolls, PL01-13 and PL04-13, were signed on 9 January 2013; therefore, Soldiers affected during the time period were given promotion effective dates of 9 January 2013.
4. On 26 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, U.S. Code, section 14038, 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. In addition, the Reserve Officer Personnel Management Act, section 1-2, provides that the effective date of promotion and DOR for an officer who is promoted under the position vacancy system will be the date the Chief, NGB, extends Federal recognition.
6. Title 10, U.S. Code, 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.
7. Per Title 10, U.S. Code, 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 an earlier date. His original promotion scroll was recalled and he was placed on a later scroll through no fault of his own.
2. NGB recommended adjustment of the applicant's DOR and effective date of promotion to MAJ to 9 January 2013. The applicant was on a promotion scroll that was recalled due to a DA Board conflict. NGB created new promotion scrolls to replace the cancelled scrolls for the Soldiers affected. The new scrolls were signed on 9 January 2013; therefore, Soldiers affected during the time period were given promotion effective dates of 9 January 2013.
3. Title 10, U.S. Code, 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 DOR 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 9 January 2013. His effective date of promotion to MAJ remains 8 March 2013.
BOARD VOTE:
___x____ ____x___ ____x___ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined the evidence presented is sufficient to warrant a recommendation for 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 9 January 2013.
____________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) AR20130008230
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