IN THE CASE OF:	  

		BOARD DATE:  11 March 2014

		DOCKET NUMBER:  AR20130011721 


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 captain (CPT) in the California Army National Guard (CAARNG), from 17 October 2012 to 7 September 2012.

2.  The applicant states:

   a.  The Senior Army Advisor made an administrative error on his Federal Promotion Board swearing-in form.  The swearing-in form of the board members was not dated and signed.  As such, the National Guard Bureau (NGB) sent his promotion packet back to the State (CAARNG) to be corrected and then resubmitted.  This error resulted in exactly 40 days of lost time in his present rank of CPT; therefore, his record is in error.

   b.  He has communicated with the Chief, Officer Personnel Management (OPM), Chief Warrant Officer Four (CW4) Dxxxxx, regarding the error.  CW4 Dxxxxx advised and specifically indicated that based on the fact that the error occurred in the Senior Advisor's office and not at the NGB any request for correction to the NGB would be bounced back to the CAARNG.  Therefore, he was specifically advised to apply to the Army Board for Correction of Military Records (ABCMR).

   c.  OPM, CAARNG, and his chain of command fully support his request to the ABCMR for correction of his DOR based on an error. 


3.  The applicant provides copies of the following:

* chronological timeframe of his Federal Recognition promotion packet
* Orders Number 170-1013
* email correspondence between himself and a staff member of the CAARNG
* OPM update
* Special Orders Number 367 AR
* CPT promotion memorandum

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed in the CAARNG, Judge Advocate General’s Corps, as a first lieutenant (1LT), on 20 May 2010, with an adjusted DOR of       20 May 2009.  

2.  On 14 June 2012, a CAARNG Federal Recognition Examining Board (FREB) determined the applicant to be qualified for promotion to CPT.

3.  He provided copies of the following:

* Orders Number 170-1013, issued by the CAARNG, dated 18 June 2014, promoting him to CPT effective 14 June 2012
* email correspondence between himself and a staff member of the CAARNG, dated 23 and 24 July 2012, which pertained to the status of his promotion packet
* An OPM update, dated 24 July 2012, which advised him to apply to the ABCMR for an adjustment of his DOR of CPT
* Special Orders Number 367 AR, issued by the NGB, dated 19 October 2012, extending him Federal Recognition and promoting him to CPT effective 17 October 2012
* A Promotion as a Reserve Commissioned Officer of the Army memorandum, dated 19 October 2012, promoting him to CPT with an effective date and DOR of 17 October 2012

4.  In an advisory opinion, dated 13 September 2013, the Chief, Personnel Policy Division, NGB, recommended disapproval of the applicant's request for adjustment to his DOR of CPT to 7 September 2012.  The NGB official stated:

   a.  Federal Recognition Orders Number 277 AR, dated 15 December 2010, show the applicant was initially appointed in the CAARNG on 20 May 2010 with a DOR as a 1LT of 20 May 2009.  The applicant would have been eligible for promotion to CPT as of 20 May 2011.  The CAARNG stated the applicant was recommended for promotion on 6 June 2012.  That was reflected on CAARNG Orders Number 170-1013, dated 18 June 2012.  National Guard Regulation (NGR) 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions), paragraph 8-1, states, "the promotion of officers in the ARNG is a function of the State."

   b.  The attached affidavit submitted by the applicant indicated that his Federal Promotion Board Swearing-In Form (NGB Form 89) was not properly dated and signed by the appropriate board members.  The applicant feels that resulted in his promotion being delayed by 40 days.  The NGB Form 89 shows the applicant's promotion packet was boarded by the CAARNG on 14 June 2012.  

   c.  The administrative error was caught by the NGB Federal Recognition Section who subsequently returned the applicant's promotion packet for corrective action.  In an email from the CAARNG, dated 19 August 2012, the applicant's packet was received on 23 July 2012, the corrective action was completed, and was returned to the Federal Recognition Section on the same day.

   d.  Based on that timeframe the Soldier's claim as to a delay in promotion is not valid.  It normally takes approximately 90 days for a promotion packet to go through the necessary approval channels.  Thus, the applicant's promotion packet effective date of 17 October 2012 is reasonable.  Additionally, nothing in the Soldier's case file supported the request to change his DOR to 7 September 2012.

   e.  At the minimum, consideration can be given to amending the applicant's DOR in the Standard Installation/Division Personnel System (SIDPERS) at the State and Federal levels to 14 June 2012.  That was the date the FREB at the State recommended the applicant for promotion.  The correction of the applicant's DOR would be applicable when the Soldier was considered for promotion to the next higher grade.  The Federal Recognition Section and Officer Policy Branch support the correction to the applicant's DOR in SIDPERS.  The CAARNG concurred with that recommendation.

5.  On 20 September 2013, the advisory opinion was forwarded to the applicant for acknowledgment and/or rebuttal.  In his response, dated 20 October 2013, the applicant stated:

   a.  The advisory opinion clearly stated that the administrative error was caught by the NGB Federal Recognition Section and was subsequently returned for corrective action.  Indeed, as a consequence he lost 40 days DOR as a CPT. The opinion did not state at all why he should have to incur and lose 40 days loss of rank as a CPT due to that administrative error.
   
   b.  The opinion's conclusions omit the premise and material issue at stake (the administrative error) and the reason for his application for correction of his military records.  The opinion forgets to mention in its reasonableness as to whether it was reasonable for him to have to suffer an administrative error and clear injustice on part of the Senior Army Advisor.  The opinion neglected to opine as to his essential reasons, arguments, and application to the ABCMR.

   c.  The opinion recommended the promotion effective date of 14 June 2012 be his DOR in the SIDPERS at the State and Federal levels.  Based on the foregoing, he requests his DOR in SIDPERS at the State and Federal levels be corrected to 14 June 2012 with authorization for pay and allowances in the higher grade effective 14 June 2012.

   d.  The opinion stated he would have been eligible for promotion to CPT as of 20 May 2011.  There is nothing in his records to justify or support any reason for his promotion effective date not to be 20 May 2011.  Therefore, it is unjust for his military records not to indicate his promotion effective date to CPT to be 20 May 2011.  He is enclosing his officer evaluation report (OER) for the period 20 May 2010 through 20 May 2012 and an approved promotion endorsement to CPT by the Chief, ARNG, Trial Defense Service, dated 22 March 2013.

   e.  Based on the foregoing, he requests his promotion to CPT be effective 20 May 2011 or at least 22 March 2012 based on the NGB's advisory opinion, his entire military record, and formal documents submitted for review and analysis.  Or in the alternative, his DOR of CPT be effective 14 June 2012 at both the Federal and State levels to cure the injustice and errors in his record.  At a minimum, his promotion date to CPT should be adjusted to 7 September 2012.  He provided copies of the following:

* An OER for the period 20 May 2010 through 4 May 2012 which shows he was assessed as "outstanding performance, must promote," "best qualified," and "above center of mass," with his senior rater twice entering the comment "promote immediately"
* An Over-Strength Promotion to CPT memorandum, dated 22 March 2012, wherein the Chief, ARNG, Trial Defense Service, requested an exception to policy for promotion of the applicant to CPT while assigned as over-strength to his position

6.  There is no evidence in his records whether the 22 March 2012 exception to policy for promotion was processed, approved, or disapproved.
7.  National Guard Regulation 600-100, chapter 8, establishes the policies and procedures for promotion of officers in the ARNG.  The regulation states that until Federal Recognition in the new rank is extended by the NGB, the individual cannot be promoted and paid in the higher rank.  The NGB has advised in similar cases such as this that recommendations for promotion must be processed through NGB staff of obtain approval of the promotion by the President, and that the approval process normally takes approximately 3 months (90 days).

8.  Title 10, U.S. Code (USC), 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 (E.O. 13384, Section 1, 27 July 2005).  

DISCUSSION AND CONCLUSIONS:

1.  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.    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, 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.  However, when a valid appointment has been accomplished, the Board can take action to grant an officer an earlier DOR if warranted by the facts in the case.  

2.  The applicant in this case was recommended for promotion to CPT by an FREB on 14 June 2012.  He may have been eligible for an earlier recommendation but he was not recommended for promotion until 12 June 2012 and the State published the promotion order after the FREB had found the applicant qualified for promotion.  The NGB recommended his DOR of CPT be adjusted to 14 June 2012 in SIDPERS at the State and Federal levels.  The Federal Recognition Section, Officer Policy Branch, and the CAARNG concurred. In view of the foregoing, action should be taken to correct his DOR of CPT in SIDPERS to 14 June 2012.  

3.  With respect to adjustment to his DOR of CPT to 7 September 2012, notwithstanding the NGB Form 89 not being dated and signed by the appropriate board members, the evidence shows it was received for corrective action by the CAARNG on 23 July 2012 and returned to the NGB on the same day.  The NGB federal recognition process normally takes 90 days for a promotion packet to go through the necessary approval channels.  

4.  There is no evidence of record and he did not sufficient evidence showing his promotion CPT was unjustly or erroneously delayed.  Once the administrative error was caught, the form was returned for correction, corrected, and promptly returned for completion of its approval.  He was extended Federal Recognition and promoted to CPT effective 17 October 2012.  This is reasonable and in does not appear to be unjust.  

5.  With respect to adjustment to his effective date of CPT to 14 June 2012, the foregoing correction does not entitle him to back pay and allowances.  Pay and allowances are based on the effective date.  The effective date is tied to the scrolling action.  An individual cannot be paid until Federal Recognition is extended by the NGB in the higher grade.  The NGB extended Federal Recognition and promoted him to CPT effective 17 October 2012.  This is the earliest date he is entitled to pay and allowances in the rank of CPT.  

6.  With respect to adjustment to his promotion to CPT to be effective 20 May 2011 or 22 March 2012, there is no evidence and he did not provided sufficient evidence showing he was recommended for promotion to CPT earlier than 14 June 2012.  Being eligible for promotion is not the same as being recommended for promotion and the latter is not the same as being promoted.  His record does not contain and he provided no evidence showing the exception to policy request for his promotion to CPT in March 2012 was processed, approved, or disapproved.  

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 of the State and the Department of the Army records be corrected by showing in the Standard Installation/Division Personnel System at the State and Federal levels the applicant's date of rank to captain as 14 June 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 that pertains to correction of his records by:

* adjusting his promotion effective date and date of rank of captain to 7 September 2012 with entitlement to back pay and allowances
* adjusting his promotion effective date of captain to 14 June 2012 with entitlement to back pay and allowances
* adjusting his promotion effective date and date of rank of captain to 20 May 2011 or 23 March 2012 with entitlement to back 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)                                         AR20130011721



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ABCMR Record of Proceedings (cont)                                         AR20130011721



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