IN THE CASE OF:	   

		BOARD DATE:	  13 May 2014

		DOCKET NUMBER:  AR20130008919 


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) for promotion to major (MAJ) from 8 March 2013 to 1 August 2012.  

2.  The applicant states that due to a Department of the Army (DA) Board issue his scroll was stopped after over 90 days in process.  He contends that his packet was sent back to the beginning of the process and he was placed on a new scroll.  

3.  The applicant provides a memorandum from the New York Army National Guard (NYARNG), Director of Military Personnel. 

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed a Reserve commissioned officer on 
30 December 2006.  On 18 May 2007, he was appointed as a second lieutenant in the NYARNG upon his release from the U.S. Army Reserve.  He was appointed in the NYARNG in the rank of captain effective 30 April 2008.

2.  On 13 March 2013, the National Guard Bureau (NGB) published Special Orders Number 74 AR extending him Federal recognition for promotion to MAJ with an effective date and DOR of 8 March 2013.  He had been scrolled on   PL14-13, signed on 8 March 2013.

3.  In the processing of this case, an advisory opinion was obtained from the NGB Personnel Policy Division.  The opinion states:
	a.  The NGB Federal Recognition (FEDREC) Section concurs with a portion of the applicant's request.

	b.  The FEDREC Section has indicated the Directorate of Military Personnel Management (DMPM) cancelled scroll P02-13 and P03-13 due to an NGB, DA Board conflict.  The scrolls in question were forwarded to the Secretary of Defense for processing on 16 October 2012.  The NGB created new promotion scrolls 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. 

	c.  The applicant cannot have a DOR of 1 August 2012 but he can have his DOR changed to read 22 August 2012.  This is based on the Soldier's promotion packet not going before the FEDREC Board at the State level and approved until 22 August 2012.  This is supported by and reflected on NYARNG promotion orders, dated 23 August 2012, which reflect the effective date recommended by the Board.  Once the Soldier's promotion packet is forwarded by the FEDREC Section for processing, Federal recognition is not granted until the scroll the Soldier's name is listed on is signed by the Secretary of Defense.  As a result of the previous mentioned errors, he currently has a DOR and promotion effective date of 8 March 2013.  

	d.  It is the recommendation of their office and the FEDREC Section that the applicant receives partial administrative relief.  Consideration should be given to amending his DOR to read 22 August 2012 as well as amending his promotion effective date to reflect 9 January 2013.  Per guidance provided by the FEDREC Section, the recommended date is based on the approximate date the initial canceled scroll would have been approved by the Secretary of Defense.  It is also recommended the applicant receive all back pay and allowances that may have been lost as a result of this error.  

4.  The advisory opinion was provided to the applicant for comments and/or a rebuttal.  No response was received.  

5.  He provides a memorandum from the NYARNG, Director of Military Personnel explaining the reasons for the delay in his unit vacancy promotion. 

6.  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 position 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.  

7.  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.

8.  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's contention that his DOR to MAJ should be adjusted to 
1 August 2012 has been carefully considered.  

2.  Orders show he was promoted to MAJ by the NYARNG on 22 August 2012.  Normally, processing time for extension of Federal recognition is 90 to 120 days. However, it appears that when his promotion packet was forwarded through the NGB to the DMPM for scrolling action a board conflict resulted in his removal from that scroll.  He was placed on a subsequent scroll that was approved by the Secretary of Defense on 8 March 2013.   

3.  The Army Board for Correction of Military Records (ABCMR) may only correct Army records.  The ABCMR has no authority to correct records created by the other Services or the Department of Defense.  Any correction by the ABCMR must comply 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 and notwithstanding the recommendation of the advisory opinion, the ABCMR does not have the authority to change the applicant’s effective date of promotion.  However, the Board may correct his DOR to show 22 August 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 Special Orders Number 74 AR dated 13 March 2013 to show his DOR to MAJ as 22 August 2012.  

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 (as recommended by the advisory opinion) that pertains to adjusting his effective date of promotion.  



      ___________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)                                         AR20130008919



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ABCMR Record of Proceedings (cont)                                         AR20130008919



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