IN THE CASE OF:	  

		BOARD DATE:  22 August 2013

		DOCKET NUMBER:  AR20130011782 


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, in effect, adjustment to his date of rank (DOR) and promotion effective date for captain (CPT) from 1 August 2013 to 19 October 2012 with entitlement to back pay allowances.

2.  The applicant states:

	a.  His promotion packet for CPT was held up at each level of administration until it was finally determined past date by the Personnel Command (PERSCOM) after being approved by the National Guard Bureau (NGB).  The packet sat as an "Initial Packet Review:  HRH-A" from the end of July to 19 August 2012.  It was reviewed for 3 months then returned on the last day for approval of vacancy promotions on 19 October 2012.

	b.  This resulted from two things:

		(1)  PERSCOM published a policy changing the vacancy promotion deadlines from 90 to 120 days prior to a Department of Army (DA) board.  This policy was somehow overlooked by everyone in the review chain, the brigade, the State, and NGB.  They all sent the packet forward as valid and it was scanned into the Federal recognition by the State and sat in the "Initial Packet Review:  HRH-A" for over 90 days, only to be returned on the last day possible for a Federal recognition/NGB error from 18 months prior.  NGB pushed forward his promotion operating off the former 90-day policy that was still being operated under.  The unit, the State, and NGB were never made aware of the PERSCOM policy until this incident.

		(2)  His promotion packet sat at each level for a considerable amount of time.  Records indicate the packet sat at the battalion level from around 14 June until 27 July 2012.  His packet sat at the administration desk of NGB for 90 days before being moved.  These delays at each level ensured the packet never made the deadline and the battalion, brigade, and whoever was supposedly talked to at NGB were unaware of it.

	c.  Upon guidance from his chain of command and State, he requests adjustment of his DOR to the date his packet was returned to the State on 19 October 2012 with entitlement to back pay and allowances from that date.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed in the U.S. Army Reserve on 5 May 2006 after having prior enlisted service.  He was appointed as a second lieutenant in the South Carolina Army National Guard (SCARNG) effective 6 May 2006.  He was promoted to first lieutenant effective 5 May 2008.

2.  A Unit Vacancy Promotion form shows he was selected for a unit vacancy promotion to CPT with a DOR of 5 May 2012.

3.  In a memorandum, dated 5 June 2012, the applicant's battalion commander recommended the applicant's promotion to CPT in the SCARNG and confirmed that he met all qualifications for that promotion.

4.  The SCARNG issued the following orders:

* Orders 212-827, dated 30 July 2012, promoting him to CPT with a DOR and effective date of 30 July 2012
* Orders 213-961, dated 1 August 2013, promoting him to CPT with a DOR and effective date of 1 August 2013

5.  In an advisory opinion, dated 28 June 2013, the Chief, Personnel Policy Division, NGB, stated:

	a.  The applicant requested to be promoted to CPT with a DOR of 19 October 2012.  Through no fault of his own, the applicant's vacancy promotion packet was delayed in processing at the State level and at NGB and he was not promoted because of it.  He then prepared a board file for the DA Selection Board for CPT; the board results have not yet been published.

	b.  The applicant was promoted to CPT by the SCARNG on 20 July 2012 and his packet for Federal recognition was submitted to NGB on 20 July 2012 as well. 
The applicant requests establishment of his DOR for CPT as 19 October 2012 because that is 90 days after his packet was submitted for Federal recognition.  There were several delays in processing his packet, both at the State level and at NGB; the delays were no fault of the applicant.  Because of the delay, his packet was pulled and then fell into the DA promotion cycle instead of completing the vacancy promotion.  The applicant completed his promotion packet for the DA board.  As of the date of this memorandum, the DA board results are yet to be published.

	c.  The Federal Recognition Board (FRB) section of NGB partially concurs with the applicant's request.  The following sequence of events affected the applicant's promotion packet.  The FRB section states the Department of Military Personnel Management cancelled scroll P02-13 and P03-13 due to a DA board conflict.  The scroll left the NGB FRB section for the Office of the Secretary of Defense on 16 October 2012.  NGB created a new promotion scroll to replace the cancelled scrolls for the Soldiers negatively impacted.  The two scrolls, 
PL01-13 and PL04-13, were signed on 9 January 2013.  The applicant's promotion packet would have been on this scroll based on when it was submitted to NGB.

	d.  The NGB Personnel Policy Division and FRB section recommend awarding the applicant partial administrative relief by making his DOR for CPT effective 9 January 2013.  NGB also recommends payment of back pay and allowances based on the applicant's adjusted DOR.  The SCARNG concurs with this recommendation.

6.  The advisory opinion was forwarded to the applicant for acknowledgement and/or rebuttal on 2 July 2013.  He 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 NGB.

8.  Title 10, U.S. Code, section 12203, provides that appointments and promotion 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 13384, section 1, dated 27 July 2005.

9.  Title 10, U.S. Code, section 14308(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 shall be the date in which such Federal recognition in that grade is so extended.

10.  Authority granted to the Secretaries of the Military Departments in Secretary of Defense Memorandum, Subject:  Redelegation of Authority under Executive Order 12396, dated 9 December 1982, to appoint officers under section 624 of Title 10, U. S. Code, in the grades of O-2 and O-3 was rescinded effective 1 July 2005 based on advice from the Department of Justice that prohibits redelegation below the Secretary of Defense of the President’s authority to appoint military officers.  All military officer appointments under section 12203 of Title 10, U. S. Code, including original appointments, in the Reserve of the Army, Reserve of the Air Force, Naval Reserve, and Marine Corps Reserve, not previously approved by 30 June 2005, shall also be submitted to the Secretary of Defense.

11.  Title 10, U. S. Code, section 1552(a)(1), allows the Secretary of a military department to correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or restore an injustice.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant met the eligibility criteria for a vacancy promotion to CPT on 20 July 2012.  His promotion packet was forwarded for approval and was delayed through no fault of his own.  His vacancy packet was then withdrawn when he fell into the DA promotion board cycle and it was not completed.

2.  NGB stated that his vacancy promotion packet would have been on the replaced scrolls which were approved on 9 January 2013.  Therefore, NGB recommended and the State concurred that the applicant was entitled to a vacancy promotion to CPT with a DOR and effective date of 9 January 2013.

3.  His contentions were carefully considered.  Based on the delays through no fault of his own, and the scrolls approved by the Secretary of Defense on 9 January 2013, as a matter of equity in this case, his records should be corrected to show he was extended Federal recognition and promoted to CPT in the SCARNG with a DOR and effective date of 9 January 2013 with entitlement to back pay and allowances.

4.  The promotion of a Reserve CPT is now issued by the President of the United States and is delegated to the Secretary of Defense.  A statutory change in the procedures for the promotion of CPT's requires that CPT's be placed on a scroll and staffed to the President (delegated to the Secretary of Defense) for approval.

5.  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.  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 to CPT would effectively amend the Secretary of Defense's action and goes beyond the authority of this Board.  Unfortunately, the requested relief cannot be granted to adjust his DOR and effective date for CPT to 19 October 2012.

7.  In view of the foregoing, his records should be corrected as recommended below.

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:

* voiding the applicant's promotion orders, dated 1 August 2013, and resulting special orders, and declaring them to be of no force or effect
* showing he was extended Federal recognition and promoted to CPT in the SCARNG with a date of rank and effective date of 9 January 2013
* paying him all appropriate back pay and allowances based on this records correction

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 showing he was promoted to CPT in the SCARNG with a DOR and effective date of 19 October 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)                                         AR20130011782



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ABCMR Record of Proceedings (cont)                                         AR20130011782



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