IN THE CASE OF:	

		BOARD DATE:	    24 April 2014

		DOCKET NUMBER:  AR20130012480 


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 his date of rank (DOR) to captain be adjusted from 
6 July 2012 to 22 June 2011 and applicable back pay (i.e., correction of his effective date of promotion).

2.  The applicant states:

	a.  he was wrongfully denied promotion from first lieutenant to captain while he was a member of the Georgia Army National Guard (GAARNG) even though he met all requirements for promotion as of 20 June 2011, the approximate date of the June 2011 Captain Promotion Board for the GAARNG.  He was subsequently promoted to captain in July 2012 after transferring to the U.S. Army Reserve (USAR).

	b.  the GAARNG denied him promotion solely because he did not have a permanent Secret security clearance at the time, but rather, merely an interim Secret clearance.  His recruiter admitted that she failed to request information from him while he was at Officer Basic School, which, if he knew such information was required, he would have immediately submitted.  But for this error by his recruiter, he would have been granted a permanent Secret clearance in time for the June 2011 promotion board.  Because of a change to Office of Personnel Management policy in the spring of 2011, he was required to have a new interview conducted and had to wait several months for adjudication.   



3.  The applicant provides:

* Body fat documentation
* DA Form 1059 (Service School Academic Evaluation Report)
* Certificate of training
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Email
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* DA Form 2-1 (Personnel Qualification Record)
* DA Form 67-9 (Officer Evaluation Report)  
 
CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a first lieutenant in the GAARNG on 18 May 2010 with a DOR of 18 May 2009.  

2.  He completed the Judge Advocate Officer Basic Course on 2 February 2011.  He was assigned to a trial counsel duty position in his unit effective 16 May 2011.  

3.  There is no evidence of record which shows he was promoted to captain in the USAR or GAARNG on 22 June 2011.

4.  He was separated from the GAARNG on 3 January 2012 and transferred to the USAR.  

5.  There is no evidence of record which shows he received Federal recognition as a captain in the GAARNG.   

6.  He was appointed as a Reserve commissioned officer on 4 January 2012.   

7.  He was promoted to captain effective 6 July 2012.

8.  In the processing of this case, on 11 December 2013, a staff advisory opinion was obtained from the Chief, Personnel Policy Division, NGB.  The advisory official recommends approval of the applicant's request with the caveat that the USAR is the final authority on granting an adjusted DOR.  The advisory official points out:




	a.  The applicant was never promoted by the GAARNG.  He submitted a request for a conditional release on 9 November 2011 and transferred to the USAR on 4 January 2012, where he was promoted to captain on 6 July 2012.  Although the ARNG concurs with the applicant’s request, since he is now a Reserve officer and was promoted by the Reserves, the decision authority on his DOR should be the USAR.

	b.  The applicant states his promotion packet was delayed because he had an interim Secret security clearance instead of a permanent Secret security clearance.  He states that this is his unit’s fault because they failed to ask him for additional information to complete the clearance in a timely manner.  He provided email to support this statement.

	c.  The applicant’s promotion packet was submitted in May 2011 for the State board in June 2011.  However, his promotion packet was rejected because his security clearance was an interim Secret instead of Secret.  Neither Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) nor National Guard Regulation 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions) require a permanent Secret clearance as a condition for promotion.

	d.  The applicant met the requirements for a unit vacancy promotion, in accordance with paragraph 8-7a of National Guard Regulation 600-100.

	e.  He completed the Judge Advocate Officer Basic Course on 2 February 2011.  Completion of this course is required for promotion to captain in accordance with Table 2-2 of Army Regulation 135-155.

	f.  The applicant was assigned to the Trial Counsel duty position in his unit effective 16 May 2011.

	g.  The applicant met the time in grade (TIG) requirement in accordance with Table 2-1 of Army Regulation 135-155 which requires an officer to have a minimum of 2 years TIG as a first lieutenant in order to be eligible for promotion to captain.  He met this requirement as of 18 May 2012.  Upon reaching 
2 years TIG, he met all the requirements for promotion to captain.

	h.  The GAARNG concurs with this recommendation. 

9.  A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  He responded and agreed with the advisory opinion.

10.  National Guard Regulation 600-100 prescribes policies and procedures governing, in part, the appointment, Federal Recognition, and separation of commissioned officers of the ARNG.  Paragraph 8-2 states the effective date of promotion for an ARNG commissioned officer who is promoted in the State is the date the Chief, NGB extends Federal Recognition unless otherwise provided by law.  An officer's DOR as a Reserve of the Army will be determined by his or her duty status, type of selection board which selected the officer, and delay status (if applicable), unless otherwise provided by law.  Additionally, paragraph 8-6c states promotion will be accomplished only when the officer is assigned to an appropriate Modified Table of Organization or Table of Distribution and Allowances and Equipment vacancy in which he or she has been recommended for promotion until Federal Recognition orders are published.

11.  Paragraph 8-7a of this regulation states to be considered for Federal recognition and subsequent Reserve of the Army promotion following State promotion to fill a unit vacancy, an ARNG commissioned officer must:

	a.  be in an active status;

	b.  be medically fit and meet the height and weight standards;

	c.  have completed the minimum years of promotion service;

	d.  have completed the minimum military and civilian education requirements; and

	e.  have passed an Army Physical Fitness Test within the time frame prescribed.

12.  Army Regulation 135-155 prescribes policy and procedures used in the selection and promotion of commissioned officers of the ARNG of the United States and commissioned and warrant officers of the U.S. Army Reserve.  Table 2-1 (Time in Grade Requirements for Commissioned Officers, Other Than Commissioned Warrant Officers) of this regulation outlines the service 
requirements for promotion and indicates the minimum TIG as a first lieutenant for promotion to captain is 2 years and the maximum TIG is 5 years.

13.  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.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his DOR to captain be adjusted to 22 June 2011 with the applicable back pay.  

2.  He contends his promotion packet was delayed because he had an interim Secret security clearance instead of a permanent Secret security clearance; however, the governing regulations do not require a permanent Secret clearance as a condition for promotion.   

3.  The evidence shows he was appointed as a first lieutenant in the GAARNG on 18 May 2010 with a DOR of 18 May 2009.  He completed the Judge Advocate Officer Basic Course on 2 February 2011 and met TIG requirement (2 years) on 18 May 2011.  In addition, he met the requirements for a unit vacancy promotion in accordance with the governing regulation.  

4.  Based on the foregoing, it would be appropriate to adjust his DOR to captain to 18 May 2011.

5.  However, by law all military officer appointments are required to be placed on a scroll and be processed through various channels up to the Secretary of Defense.  He could not have been promoted to captain until the scroll was approved by the Secretary of Defense.  Scrolling actions are not within the purview of this Board.  His effective date of promotion to captain seems appropriate and reasonable and should not be adjusted.



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 adjusting his DOR to captain to 18 May 2011.

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 changing the effective date of his promotion (i.e., the applicable back pay).



      _______ _   __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)                                         AR20130012480



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130012480



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1