BOARD DATE:	  28 January 2014

		DOCKET NUMBER:  AR20130012721 


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 that his effective date and date of rank (DOR) for captain, pay grade O-3 be adjusted from 2 May 2013 to 16 May 2012 so that he may recoup a year of lost time in grade (TIG) and loss of pay in grade O-3.

2.  The applicant states he lost a year TIG and pay while he was deployed in support of Operation Enduring Freedom.  He completed the basic officer leader course (BOLC) on 15 May 2012 but his unit was unfamiliar with the commissioning of and constructive credit for medical officers.  Because of this unfamiliarity, his unit would not submit his paperwork for promotion until he had 18 months TIG as a first lieutenant.  Even after receiving clarification from the State and his recruiter, his unit did not submit the paperwork for his promotion until 13 November 2012.  However, it was submitted incorrectly resulting in his State orders being published in January 2013 and Federal recognition occurring on 2 May 2013.

3.  The applicant provides copies of:

* DA Form 5074-1 (Record of Award of Entry Grade Credit (Health Services Officers) dated 21 November 2011
* DA Form 1059 (Service School Academic Evaluation Report) dated        15 May 2012
* Email communications between the applicant and personnel at the Pennsylvania Army National Guard (PAARNG) dated from 11 June 2012 to 7 December 2012
* Special Orders Number 121 AR, National Guard Bureau (NGB), dated    13 May 2013

CONSIDERATION OF EVIDENCE:

1.  Orders 306-1069, Commonwealth of Pennsylvania, dated 2 November 2011, announced the applicant's appointment as a first lieutenant, Army Medical Specialist Corps (SP) with an effective date and DOR of 23 November 2011.

2.  A DA Form 5074-1, as provided by the applicant, and dated 21 November 2011 indicates he was given 3 years, 7 months, and 3 days of constructive credit.

3.  A DA Form 5074-1, dated 6 January 2012, and on file in the applicant's Army Military Human Resource Record (AMHRR) indicates that he was given 3 years, 7 months, and 12 days of constructive credit.  This document also indicates that his date of entry on active duty was 23 November 2011 and DOR for first lieutenant was 11 October 2009.

4.  A DA Form 1059, dated 15 May 2012, indicates the applicant satisfactorily completed BOLC on 15 May 2012.

5.  Special Orders Number 174 AR, NGB, dated 15 May 2012, announced the applicant's extension of Federal recognition as a first lieutenant, with an effective date of 23 November 2011 based on his initial appointment.

6.  Special Orders Number 250 AR, NGB, dated 11 July 2012, amended the orders discussed in the previous paragraph to show the applicant's DOR as 
11 October 2009.

7.  Orders 030-1015, Commonwealth of Pennsylvania, dated 30 January 2013, announced the promotion of the applicant to captain, pay grade O-3, with an effective date and DOR of 22 January 2013 based on a position vacancy.

8.  A memorandum to the applicant from the Chief, Personnel Division, NGB, dated 13 May 2013, informed the applicant of his promotion as a Reserve Commissioned Officer of the Army in the rank of captain with an effective date and DOR of 2 May 2013.

9.  Special Orders Number 121 AR, NGB, dated 13 May 2013 announced the applicant's extension of Federal recognition as a captain, with an effective date of 2 May 2013.



10.  In the processing of this case, an advisory opinion was obtained from the Personnel Policy Division, NGB.  That office recommended partial approval of the applicant’s request by back-dating his DOR to 16 May 2012.  The applicant's unit based his promotion eligibility on 23 November 2011, the date he entered the PAARNG, instead of 11 October 2009, which was his DOR based on his constructive service credit as a medical officer.  Therefore, the advisory opinion contends that adjusting his DOR at the state level would enable him to be eligible for his next promotion in the same timeframe as his peers.

	a.  The opinion further stated that the applicant met the minimum 2-year TIG requirement for promotion to captain on 11 October 2011, in accordance with Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers).

	b.  The applicant was assigned to the physician assistant position effective 
23 November 2011.

	c.  The applicant completed BOLC on 15 May 2012, making him eligible for promotion to captain.

	d.  The advisory opinion stated that the applicant's claim is valid and is in the interest of fairness and equity.  However, the Federally recognized effective date of promotion cannot be modified because such action would effectively amend the Secretary of Defense's action.  The NGB Federal Recognition Section confirmed this limitation.

	e.  The advisory opinion stated that the Army Board for Correction of Military Records (ABCMR) could request the applicant's records be referred to a Special Selection Board (SSB) for reconsideration under the provisions of Army Regulation 135-155, paragraph 3-19.  The PAARNG concurred with this suggestion.

11.  On 7 November 2013, a copy of the advisory opinion was sent to the applicant for his information and opportunity to respond.  No response was received.

12.  Army Regulation 135-155, paragraph 3-19 provides for promotion reconsideration boards.

	a.  It states that officers and warrant officers who have either failed of selection for promotion, or who were erroneously not considered for promotion through administrative error may be reconsidered for promotion by either a promotion advisory board or an SSB, as appropriate.  These boards are convened to correct/prevent an injustice to an officer or former officer who was eligible for promotion but whose records, through error, were not submitted to a mandatory promotion selection board for consideration.

	b.  SSBs convened under the Reserve Officer Personnel Management Act (ROPMA) on and after 1 October 1996, will reconsider commissioned officers, (other than commissioned warrant officers) who were wrongly not considered and reconsider commissioned officers (other than commissioned warrant officers) who were considered but not selected by mandatory promotion boards that convened on or after 1 October 1996.

	c.  Table 2-1 provides for a position vacancy promotion to captain after 
2 years TIG as a first lieutenant; and for a mandatory promotion after 5 years TIG.

13.  National Guard Regulation 600-100 prescribes policies and procedures governing the appointment, Federal Recognition, and separation of commissioned officers of the ARNG.

	a.  Chapter 8 states the promotion of officers in the ARNG is a function of the State.  A commissioned officer promoted by State authorities has a State status in the higher grade under which to function.  However, to be extended Federal Recognition in the higher grade, the officer must have satisfied the requirements prescribed in this chapter.

	b.  Paragraph 8-6, states wearing insignia of the higher grade is not authorized until Federal Recognition has been extended.

14.  Authority granted to the Secretaries of the Military Departments in Secretary of Defense Memorandum, Subject:  Re-delegation 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 re-delegation 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.

15.  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 applicant contends that his effective date for captain, pay grade O-3 should be adjusted to 16 May 2012 because his unit did not understand or recognize his constructive credit resulting in his loss of TIG and pay.

2.  The available evidence shows that the applicant was appointed as a first lieutenant, SP effective 23 November 2011 with concurrent call to active duty.  He also received constructive service credit for education and a first lieutenant DOR of 11 October 2009.  He was immediately placed in a captain's position.

3.  The available evidence further shows the applicant was granted Federal recognition for first lieutenant effective 23 November 2011, which was subsequently amended to give him a DOR of 11 October 2009.  On 15 May 2012, he completed BOLC making him eligible for promotion to captain.  The PAARNG promoted him to captain with a DOR of 22 January 2013 based on a position vacancy.  On 13 May 2013, the applicant was extended Federal recognition as a captain, with an effective date of 2 May 2013.

4.  The only way that the applicant's effective date of promotion may be changed is by changing the date when Federal Recognition was granted by the Secretary of Defense.  The ABCMR has no jurisdiction over Department of Defense records and therefore cannot make that type of correction.  

5.  However, the advisory opinion recommended that the applicant’s DOR be corrected.  The Board may recommend that the State adjust his DOR.

6.  The advisory opinion suggested that the applicant's records be referred to an SSB.  However, the applicant's promotion was based on a position vacancy and was not a mandatory promotion.  Therefore, in this case, an SSB would not have the statutory or regulatory authority to reconsider the applicant's promotion.

7.  In view of the above, the applicant's request should be denied.

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 State Army National Guard and Department of the Army records of the individual concerned be corrected by adjusting his captain date of rank to 16 May 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 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)                                         AR20130012721



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ABCMR Record of Proceedings (cont)                                         AR20130012721



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