IN THE CASE OF:
BOARD DATE: 27 August 2013
DOCKET NUMBER: AR20130013480
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 Federal Recognition (FEDREC) date and date of rank (DOR) to captain (CPT) (pay grade O-3) be corrected to 13 September 2012.
2. The applicant states that his promotion packet appeared before the September 2012 State FEDREC Board and was forwarded electronically to the National Guard Bureau (NGB) shortly thereafter. His State's promotion orders show an effective date of 13 September 2012. Per National Guard Regulation (NGR) 600-100 (Commissioned Officers Federal Recognition and Related Personnel Actions) paragraph 8-1, the promotion of officers is a function of the State. The paragraph and line number he was assigned to is an O-3 position and he was assigned to that position and a subsequent command position from 15 April 2012 onward.
3. The applicant provides copies of:
* California Army National Guard (CAARNG) Orders 97-1045 showing he was transferred to a Plans Officer position in the 40th Brigade Support Battalion (BSB)
* CAARNG Orders 103-1060 showing he was ordered to Active Guard Reserve Duty as a Plans Officer effective 15 April 2012
* CAARNG Orders 258-1013 showing he was promoted to CPT effective
13 September 2012 in paragraph 103, line number 02
* manning document for 40th BSB
* NGB letter showing he was promoted to CPT in the Reserve of the Army and Army National Guard with a DOR and effective date of 8 March 2013
* Departments of the Army and the Air Force, NGB Orders Number 74 AR showing he was granted FEDREC as a CPT effective 8 March 2013
* CAARNG Orders 84-1284 showing he was transferred to the company commander position effective 2 February 2013
* page 23, NGR 600-100
* Army Board for Correction of Military Records (ABCMR) Record of Proceedings Docket Number AR20080000573, dated 29 April 2008
CONSIDERATION OF EVIDENCE:
1. The applicant is currently serving as a CPT in the CAARNG.
2. His records show he accepted the oath of office as a Reserve Commissioned Officer in the CAARNG as a second lieutenant on 13 June 2008.
3. He was promoted to first lieutenant with an effective date of 13 December 2009.
4. He completed the Adjutant General Captains Career Course on 13 April 2012.
5. CAARNG orders show he was transferred to a CPT Plans Officer position effective 15 April 2012.
6. He was promoted to CPT with an effective date and DOR of 13 September 2012. Federal recognition of the promotion was granted on 8 March 2013.
7. NGR 600-100, paragraph 8-7 - Eligibility for Promotion states, in part, that 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. have a minimum of 2 years promotion service in the lower grade.
b. complete any officer basic course (OBC) equivalent course listed in appendix E of that regulation.
c. have been assigned and served creditably for at least 1 year in a position for which the grade of CPT is authorized.
8. Title 10, U.S. Code, section 14038, paragraph (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 under section 307 or 310 of Title 32 shall be the date on which such Federal recognition in that grade is so extended. In addition, the Reserve Officer Personnel Management Act, section 1-2, provides that the effective date of promotion and DOR for an officer who is promoted under the position vacancy system will be the date the Chief, NGB, extends Federal recognition.
9. Title 10, U.S. Code, section 12203, provides that appointments of Reserve officers in the grades 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.
10. Per Title 10, U.S. Code, section 1552, the ABCMR acts on behalf of the Secretary of the Army in correcting Army records. This statute does not provide the Board with authority to correct a determination reserved under law for the Secretary of Defense.
DISCUSSION AND CONCLUSIONS:
1. The applicant was promoted by the CAARNG to CPT effective 13 September 2012, but he was not granted FEDREC until 8 March 2013.
2. The available evidence indicates the applicant was fully eligible for promotion and it was the intention of the CAARNG to promote the applicant to CPT effective 13 September 2012. There is no available evidence showing the applicant caused the delay in the granting of the FEDREC. As such, it would be appropriate to adjust his date of rank as a CPT to 12 September 2012.
3. Title 10, U.S. Code, 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.
4. 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.
5. Any correction by the ABCMR must comport with other laws. The Board may not ignore a requirement contained in or an 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.
6. Consequently, based on the authorities cited above, any correction to the applicant's effective DOR would effectively amend the Secretary of Defense's action and goes beyond the authority of this Board.
7. However, when a valid appointment has been accomplished, the Board may take action to grant an officer an earlier DOR if warranted by the facts in the case. Based upon this guidance, and as a matter of equity, it would be appropriate to grant the applicant partial relief by amending his DOR to CPT to 13 September 2012. His effective date of promotion to CPT should remain 8 March 2013.
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 amending the applicant's DOR to CPT to read 12 September 2012.
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 changing his promotion effective date.
_______ _ 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) AR20100013074
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