IN THE CASE OF:	  

		BOARD DATE:	  28 January 2014

		DOCKET NUMBER:  AR20130016876 


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 her date of rank (DOR) to captain (CPT) and effective date from 18 July 2013 to 20 August 2012 with retroactive pay and allowances.

2.  The applicant states she was selected for promotion by a unit vacancy board but due to administrative errors her packet was returned without action from the National Guard Bureau (NGB).  The established mandatory promotion board DOR of 18 July 2013 is inadequate and unfair. 

3.  The applicant provides copies of:

* NGB Special Orders Number 282 AR, dated 17 December 2010
* 20 August 2012 NGB Form 89 (Proceedings of a Federal Recognition Examining Board) packet
* 17 July 2012 Unit Manning Report
* Puerto Rico Army National Guard (PRARNG) Orders 258-502 
* PRARNG Orders 237-564
* 8 August 2013 NGB Special Orders Number 200 AR 
* 8 August 2013 NGB Promotion Memorandum 
* 6 pages of documents related to her education and training



CONSIDERATION OF EVIDENCE:

1.  The applicant, currently a captain (CPT) in the PRARNG, received her initial appointment and Federal recognition as a first lieutenant in the Judge Advocate General's Corps with an effective date and DOR of 26 May 2009.

2.  The applicant went before a PRARNG Unit Vacancy Board and was selected for promotion to CPT.  The date of this board is not of record.

3.  PRARNG Orders 236-504, dated 23 August 2012, promoted her to CPT with an effective date and DOR of 20 August 2012.  The date her Federal recognition/ promotion packet was forwarded to the NGB is not of record.

4.  On 13 September 2012, the promotion packet was returned without action resulting in revocation of her unit vacancy promotion on 14 September 2012.

5.  The applicant was considered by a mandatory Department of the Army (DA) Fiscal Year 2013 (FY13) Reserve Component (RC) Selection Board, which convened on 29 October 2012, and was selected for promotion to CPT.  

6.  On 8 August 2013, the NGB notified the applicant of her selection for promotion to captain with an effective date and DOR of 18 July 2013.

7.  NGB Special Orders Number 200 AR, dated 8 August 2013, granted the applicant Federal recognition as a CPT with an effective date and DOR of 18 July 2013.

8.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB.  It was noted that the applicant's unit vacancy promotion occurred 71 days prior to the convening of the DA mandatory promotion board.  The policy for the suspense date for a Unit Vacancy Promotion packet to be submitted for Federal recognition is no less than 90 days prior to the convening of any DA mandatory board.  The scrolling process would not have been completed prior to the convening date of the mandatory board and National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions), paragraph 8-7c precludes States from promoting officers who are being considered by a mandatory DA promotion board.  It was recommended that the applicant's request be denied.

9.  A copy of the advisory opinion was forwarded to the applicant.  There is no response from the applicant in the available records.

10.  ARNG Human Resources Command (HRC) Policy Memorandum Number 10-068 (Suspense for Submission of Applications for the Federal Recognition of Army National Guard Officers in a Higher Grade by way Unit Vacancy Promotion) states:

* promotion of an ARNG officer is accomplished by the State or Territory to which the officer is assigned
* Federal recognition of that promotion is facilitated by one of two specific board proceedings and boards may be convened –

* at the State level in connection with a unit vacancy promotion when an officer is being considered to fill a particular vacancy before (emphasis added) the officer is approaching their maximum time in grade, or
* convened by the Army HRC when a group of officers are approaching their maximum time in grade

* the Chief of the NGB is required to notify officers that they are in the zone of consideration for a mandatory board at least 90 days prior to the convening date of that board
* in order not to prejudice other officers scheduled to appear before the mandatory board unit vacancy promotion packets must be submitted 90 days prior the convening date of any DA mandatory promotion board
* requests for a waiver of the provisions based on the mere fact that compliance of the submission date may cause the Federal recognition of a deserving Soldier to be delayed will not be considered sufficient to obtain the waiver

11.  National Guard Regulation 600-100, paragraph 8-7c states "States will not promote a commissioned officer who is being considered by a HQDA Selection Board from the time the board convenes until its recommendations are announced."

12.  Title 10, U.S. Code (USC), section 14308(f), states 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.

13.  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.

14.  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 PRARNG failed to process the applicant's unit vacancy promotion within a time frame that would have allowed for a Federal Recognition Board to review that promotion prior to the 90-day cutoff requirement for officers who are being considered by a DA mandatory board.

2.  Because the State unit vacancy promotion occurred only 71 days before the convening date of the mandatory board, the NGB acted properly in returning the Federal recognition packet without action.

3.  In as much as the applicant could not be considered for Federal recognition based on unit vacancy promotion until after the mandatory board had announced its findings, this in effect meant that the effective date of her promotion could not have been any earlier than the date of her Reserve promotion based on the mandatory board.

4.  Therefore, the resulting voidance of the unit vacancy promotion orders was proper and in compliance with regulation.

5.  While it is regrettable that the applicant was placed in this position, the fact that her promotion was delayed in order to comply with regulations is an insufficient reason to warrant relief. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ___x____  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ____________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)                                         AR20130016876



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ABCMR Record of Proceedings (cont)                                         AR20130016876



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