IN THE CASE OF:	  

		BOARD DATE:	  15 April 2014

		DOCKET NUMBER:  AR20130019878 


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 correction of his date of rank (DOR) and, in effect, his promotion effective date to captain (CPT) to read 17 July 2012. 

2.  The applicant states, in effect, that his promotion was improperly delayed in violation of Army regulations.  A unit vacancy promotion packet was submitted the day after he assumed command of his unit.  There were several administrative delays in the processing of this promotion including a delay due to a pending line of duty (LOD) investigation for an injury occurring during his 2009 - 2010 deployment. 

3.  The applicant provides copies of 31 July 2012 transfer orders, 14 February 2013 promotion orders, 15 May 2013 National Guard Bureau (NGB) promotion orders, 15 May 2013 Federal Recognition orders, a "Person Summary," and a letter of support.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently a Tennessee Army National Guard (TNARNG) CPT serving as the unit commander for Headquarters and Headquarters Troop, 3rd Squadron, 278th Armored Cavalry Regiment.

2.  The applicant was deployed to Iraq for the period 5 December 2009 through 23 July 2010.


3.  Tennessee Joint Force Headquarters Orders 213-975, dated 31 July 2012, transferred the applicant to Headquarters and Headquarters Troop, 3rd Squadron, 278th Armored Cavalry Regiment as the unit commander, a CPT's position, effective 16 July 2012.

4.  Tennessee Joint Force Headquarters Orders 015-0847, dated 14 February 2013, promoted the applicant to CPT.  The orders indicate this was a unit vacancy promotion.

5.  On 15 May 2013, NGB notified the applicant he had been selected for promotion to CPT.  The DOR and effective date are shown as 29 April 2013. 

6.  15 May 2013 Federal Recognition orders show the applicant was granted Federal Recognition as a CPT effective 29 April 2013.

7.  The available record does not include any record or results of any LOD.

8.  In support of the applicant's contentions his commanding officer confirms that the applicant was transferred to the CPT's position on 16 July 2012 and that he personally initiated the applicant's promotion action on 17 July 2012.

9.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB, recommending approval of a correction to the applicant's DOR.   It was noted that the applicant's promotion packet was delayed for unforeseen administrative processing.  The LOD investigation he had pending does not qualify as a valid reason for delay of an officer's promotion.  The applicant was not flagged and he met all administrative requirements for promotion; therefore, he was eligible to be promoted on the date of assignment to the higher graded position.  The State of Tennessee concurred with the recommendation.

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

11.  Army Regulation 135-155 (ARNG and Army Reserve - Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) states:

   a.  The effective date and date of promotion to fill position vacancies will be no earlier than the approval date of the board, the date of Senate confirmation, or the date the officer is assigned to the position, whichever is later. If not occupying the position, assignment of selectees to position vacancies will take place immediately on announcement of the results of the board.
   b.  Except as provided in paragraph 4-18c, only the Secretary of the Army is authorized to determine whether an officer was unqualified for promotion during any part of an involuntary delay of promotion.  Accordingly, except as provided herein, only the Secretary of the Army may determine whether an adjustment must be made to an officer’s date of rank and effective date of promotion.
   
12.  Title 10, U.S. Code (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.  

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 Executive Order 13384, section 1, 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 1LT/O-2 and CPT/O-3, 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 and effective date of promotion to CPT should be adjusted to 17 July 2012 was carefully considered; however, there are some errors the ABCMR may not correct.

2.  The failure to process the applicant's promotion to CPT as a result of his appointment to unit vacancy due to a pending LOD was clearly improper.  However, while 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, the authority granted by this statute is not unlimited.

3.  The ABCMR may only correct Department of the Army 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 all pertinent laws.  The Board may not ignore any legal requirement contained in, or an outcome dictated by, any higher authority or governing 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, 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 17 July 2012 based on the date he officially became eligible for promotion by accepting the unit vacancy position.

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 and Army National Guard records of the individual concerned be corrected by amending his DOR to CPT to read 17 July 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 changing his effective date of promotion to CPT. 



      _______ _   _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)                                         AR20130019878





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ABCMR Record of Proceedings (cont)                                         AR20130019878



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