IN THE CASE OF:	  

		BOARD DATE:  8 October 2013

		DOCKET NUMBER:  AR20130012189 


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) and effective date from 2 July 2010 to 1 August 2009 with retroactive pay and allowances.

2.  The applicant states he was selected for promotion to CPT by a Department of the Army (DA) mandatory board for Fiscal Year 2008 (FY08).  Due to a misinterpretation of regulations, the State erroneously withheld his Federal recognition packet from being processed.

3.  The applicant provides copies of:

* Georgia Army National Guard (GAARNG) Orders 077-221, dated 18 March 2009
* GAARNG assignment orders, dated 11 September 2009
* State promotion orders, dated 17 June 2010
* National Guard Bureau (NGB) Federal recognition Special Orders Number 142 AR, dated 2 July 2010
* NGB memorandum for The Adjutants General, dated 30 January 2004, subject:  Promotion of Mobilized ARNG Officers Who are Selected for Promotion by a DA Mandatory Promotion Board
* 22 pages of e-mail
* 8 pages of military records predating his promotion to CPT


CONSIDERATION OF EVIDENCE:

1.  The applicant, currently a GAARNG CPT, was promoted to first lieutenant (1LT) effective 10 August 2004.

2.  He was selected for promotion to CPT by the FY08 DA Mandatory Selection Board.  He accepted a delayed promotion on 4 August 2008.

3.  GAARNG Orders 077-221, dated 18 March 2009, ordered the applicant to active duty in support of Operation Enduring Freedom.

4.  GAARNG Orders 254-710, dated 11 September 2009, reassigned the applicant to a CPT position.

5.  GAARNG Orders 168-717, dated 17 June 2010, promoted the applicant to CPT with an effective date and DOR of 17 June 2010.

6.  NGB Special Orders Number 142 AR, dated 2 July 2010, extended the applicant Federal recognition effective 2 July 2010 based upon approval by the Secretary of Defense.

7.  An advisory opinion was obtained during the processing of this case.  The Deputy Chief, Personnel Policy Division, NGB, stated the applicant was deployed on 10 April 2009 and was placed in an O-3 (CPT) position effective 1 September 2009.  Considering that the error was no fault of the applicant taken in concert with the provisions of Army Regulation 135-155 (ARNG and U.S. Army Reserve – Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), Table 2-1, and NGB-AHR Memorandum Number 04-0025, NGB recommended partial relief by amending Federal recognition Special Orders Number 142 AR, dated 2 July 2010, to read 10 August 2009 with entitlement to back pay and benefits.

8.  A copy of the advisory opinion was forwarded to the applicant for comment; no response to the opinion has been received.

9.  Army Regulation 135-155 states that officers who are selected for promotion to the next higher grade may voluntarily request delay of the promotion for a period of 1 year, which may be extended in 1-year increments to a maximum of 3 years from the date on which the officer would otherwise be promoted.  Table 2-1 states promotion from O-2 (1LT) to O-3 (CPT) requires a minimum time in grade (TIG) of 2 years with a maximum TIG of 5 years.

10.  NGB-AHR Memorandum Number 04-0025, dated 1 September 2004, subject:  Clarification of Policy to Promote DA Select Mobilized Officers at Maximum TIG, states ARNG officers recommended for promotion to the grades of CPT through lieutenant colonel (LTC) mobilized under the provisions of Title 10, U.S. Code (USC), sections 12301(a), 12302, and 12304, and who are on an approved mandatory selection board promotion list who reach their maximum TIG (CPT = 5 years) will be promoted without regard to the existence of a vacancy unless that officer has voluntarily delayed or declined promotion.

11.  Title 10, USC, section 14308(f), states the effective date of a promotion of a Reserve commissioned officer of the Army or the Air Force who is extended Federal recognition in the next higher grade in the ARNG or the Air National Guard under Title 32, USC, section 307 or 310, shall be the date on which such Federal recognition in that grade is so extended.  Title 10, USC, section 741(d)(2), provides that unless otherwise provided by law, the DOR of an officer who holds a grade as a result of a promotion is the date of his appointment to that grade.

12.  Title 10, USC, section 12203, provides that appointments of Reserve officers in the grades of LTC and below shall be made by the President.  This authority has been delegated to the Secretary of Defense via Section 1, Executive Order 13384, dated 27 July 2005.

13.  Based on advice from the Department of Justice, that law prohibits redelegation below the Secretary of Defense of the President's authority to appoint military officers, authority granted to the Secretaries of the Military Departments in Secretary of Defense memorandum, dated 9 December 1985, subject:  Redelegation of Authority Under Executive Order 12396, to appoint officers under Title 10, USC, section 642, in the grades of O-2 (1LT) and O-3 (CPT), was rescinded effective 1 July 2005.  All military appointments under Title 10, USC, section 12203, 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, must also be submitted to the Secretary of Defense.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DOR to CPT should be adjusted to 1 August 2009 and that he should receive back pay and allowances as a result of this correction was carefully examined; however, there are some errors the Army Board for Correction of Military Records (ABCMR) may not correct.

2.  Without question, the failure to process the applicant's Federal recognition paperwork for his appointment as a CPT was in error.  Title 10, USC, 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.

3.  The ABCMR may only correct DA records.  The Board has no authority to correct records created by the other Services or the Department of Defense.

4.  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.  However, the ABCMR may accomplish a correction by changing an operative fact in the record, thereby making a correction in compliance with that statute.  Where officer promotion issues are involved that require approval by the Secretary of Defense, the Board's hands are tied.

5.  Consequently, based on the authorities cited above, any correction to the effective date of the applicant's promotion would, in fact, amend the Secretary of Defense's action and, therefore, goes beyond the authority of this Board.

6.  However, when a valid appointment has been accomplished, the Board can grant an officer an earlier DOR if warranted by the facts in the case.  As a matter of equity, it would be appropriate to grant the applicant partial relief in this case by amending his DOR to CPT to 10 August 2009, the date he reached his maximum TIG.

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 records of the individual concerned be corrected by amending his DOR to CPT to read 10 August 2009.

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:

	a.  a DOR earlier than 10 August 2009 and

	b.  changing his effective date of promotion to CPT with entitlement to retroactive pay 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)                                         AR20130012189



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ABCMR Record of Proceedings (cont)                                         AR20130012189



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