BOARD DATE:	 16 September 2014

		DOCKET NUMBER:  AR20130021056 


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 records to show he was promoted to the rank/grade of captain (CPT)/O-3 as a Field Artillery (FA) officer.

2.  The applicant states:

	a.  He was commissioned in May 2007, as a Medical Service (MS) Corps officer in the New York Army National Guard (NYARNG).  He completed the MS Basic Officer Leadership Course (BOLC) in December 2007 and was promoted to first lieutenant (1LT) in November 2008. 

	b.  In 2009, he transferred to the Maryland (MD) ARNG and took a position as a FA officer with the 175th Infantry.  He completed FA BOLC in January 2011 and submitted his first branch transfer packet.  He received orders from the MDARNG saying his transfer was complete and he was awarded area of concentration (AOC) 13A (Field Artillery, General).  Later that year, while he was deployed, he received an email from an Army Medical Department (AMEDD) officer stating he was still branched in MS.  

	c.  He submitted another branch transfer packet and again he received orders from the MDARNG saying his transfer was complete and he was awarded AOC 13A.  Further into the deployment, he found out from the brigade S-1 that he had not been branch transferred.  After the deployment, he continued to ask about his branch transfer packet.  

	d.  He was attending the Maneuver CPT’s Career Course (MCCC), Fort Benning, GA, when he found out he had been selected for promotion to CPT by the Department of the Army (DA) Reserve Component (RC) AMEDD Board.  When he returned to the unit after graduating from MCCC, he was assured that once his branch transfer went through he could be promoted to CPT because he had already been selected by a DA board and he was in a CPT slot.

	e.  His branch transfer finally went through in October 2013.  He received orders from the MDARNG, DA, and the Federal Recognition Board (FRB).  Once all the documents were in his record, his promotion packet was submitted.  It was rejected by the National Guard Bureau (NGB) because they would not accept the DA RC AMEDD Board selection for CPT.  When informed of this, he asked about a vacancy promotion and was told it was not possible as he been already selected by a DA board and had reached his maximum time in grade (TIG) for promotion.  He was also informed that his promotion packet could not go to the fiscal year 2014 (FY 14) CPT promotion board because the deadline had passed and he would have to wait until the FY 15 board. 

	f.  The solution he was offered was to branch transfer back to the MS Corps, get promoted, then transfer back to FA.  Based on his past experience, there is no telling how long this process would take.  This situation has been detrimental to his career because his peers have been promoted to CPT.  His branch transfer took three packets and almost 3 years to complete.  As a result of being selected by the DA RC AMEDD CPT Board, he cannot be promoted in his FA slot.  He is losing out on his own career development and a much needed pay increase that comes with the promotion and is beginning to rethink staying in the military.  

3.  The applicant provides four memoranda, two DA Forms 1059 (Service School Academic Evaluation Report), and two orders.

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a second lieutenant (2LT) Reserve MS Corps officer in the NYARNG on 19 May 2007 and he executed an NGB Form 337 (Oaths of Office) and DA Form 71 (Oath of Office - Military Personnel) on the same date.  He was assigned to the 466th Medical Company, Queensbury, NY.  He was extended Federal recognition for his initial appointment.

2.  He attended and successfully completed the MS BOLC from 24 October to 14 December 2007.  He was subsequently awarded AOC 70B (Health Services Administration).  
3.  SO Number 20 AR, dated 29 January 2009, issued by the NGB granted him Federal recognition for his promotion to 1LT in the ARNG with an effective date and DOR of 19 November 2008.

4.  He was appointed as a 1LT Reserve MS Corps officer in the MDARNG on 9 November 2009.  

5.  He was assigned to Headquarters and Headquarters Company (HHC), 175th Infantry Regiment, Dundalk, MD, as a Fire Support Officer in AOC 13A.

6.  Orders 063-043, dated 4 March 2010, issued by HQ, MDARNG, reassigned him from the 13A duty position and assigned him as a Medical Operations Officer in AOC 70B.

7.  He attended and successfully completed the FA BOLC from 11 August 2010 to 11 January 2011.  Item 11 (Primary Specialty) of the DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued for this period of service shows his AOC as 13A.

8.  On 4 May 2011, HQ, MDARNG issued the applicant a memorandum wherein it stated he was awarded specialty skill identifier (SSI) 13A.  

9.  He was subsequently assigned to HHC, 29th Combat Aviation Brigade, Aberdeen Proving Ground, MD.  

10.  He was ordered to active duty as a member of the ARNG in support of Operation New Dawn and he entered active duty on 30 August 2011 as an FA officer.  He served in Iraq from 1 November to 12 December 2011 and in Kuwait from 18 December 2011 to 5 August 2012.  

11.  On 14 December 2011, HQ, MDARNG issued the applicant a memorandum wherein it stated he was awarded SSI 70B.  

12.  He was honorably released from active duty on 28 August 2012.  Item 11 of the DD Form 214 he was issued for this period of service shows his AOC as 13A.

13.  He attended and successfully completed the MCCC from 8 to 19 April 2012.  Item 11 of the DD Form 214 he was issued for this period of service shows his MOS/AOC as 13A.

14.  Orders 260-008, dated 17 September 2013, issued by HQ, MDARNG, reassigned him from one 13A duty position to another 13A duty position in HHC, 29th Combat Aviation Brigade.  This order shows him as an MS Corps officer.
15.  Orders 281-005, dated 8 October 2013, issued by HQ, MDARNG, branch transferred him from the MS Corps to FA effective 8 October 2013.  These orders stated the effective date of branch transfer and MOS change will be the date the permanent Federal recognition order is published.

16.  SO Number 5 AR, dated 13 October 2013, issued by the NGB granted him Federal recognition for his branch transfer from MS to FA effective 8 October 2013.

17.  On 28 October 2013, HQ, MDARNG issued the applicant a memorandum wherein it stated he was awarded SSI 13A.  

18.  He was honorably released from the MDARNG on 18 February 2014 and he was transferred to the U.S. Army Reserve (USAR), Troop Program Unit (TPU), 403rd Civil Affairs Battalion, Utica, NY. 

19.  SO Number 73, dated 12 March 2014, issued by the NGB withdrew his Federal recognition in the MDARNG effective 18 February 2014 in accordance with his transfer to the USAR.

20.  In April 2014, an advisory opinion was obtained from the Deputy, Personnel Policy Division, NGB.  The advisory official recommended approval of the applicant's request to be promoted to CPT as an FA officer and opined that:

	a.  The applicant's situation was very unique.  His State issued him orders on more than one occasion confirming his branch transfer to FA.  This caused the applicant a lot of confusion and frustration because of time being lost toward career opportunities.

	b.  The timeline of events in this case is as follows:

		(1)  On 19 May 2007, the applicant was commissioned as a 2LT, 70B, MS Corps officer in the NYARNG.  On 14 December 2007, he completed the MS BOLC and on 12 November 2008, he was promoted to 1LT.

		(2)  On 9 November 2009, he transferred from the NYARNG to the MDARNG and on 11 January 2011, he completed the FA BOLC.

		(3)  According to a memorandum from the MDARNG, dated 4 May 2011, he was awarded the specialty of 13A and according to a memorandum from the MDARNG, dated 14 December 2011, he was awarded the specialty of 70B.

		(4)  On 28 March 2013, he received a memorandum from the MDARNG stating he was selected for promotion to CPT by the FY 13 DA RC AMEDD Selection Board. 

		(5)  On 19 April 2013, he completed the MCCC for FA.

		(6)  On 8 October 2013, he received orders from the MDARNG branch transferring him from MS to FA.  He was subsequently awarded Federal recognition in FA with the same date.

		(7)  On 28 October 2013, he received a memorandum from the MDARNG again awarding him the specialty of 13A.

	c.  The applicant has worked diligently to meet all the requirements to become qualified in each of his respective branches of MS and FA.  He was selected by the DA RC AMEDD Selection Board for promotion to CPT because his DOR to 1LT in MS was 12 December 2008.  He also completed both the military and civilian education requirements; therefore, he was fully eligible to be promoted to the rank of CPT.  He was not in a valid vacancy at the time of selection but that is only an administrative fix.  The MDARNG submitted a packet to NGB to promote the applicant but due to his branch transfer to FA for which Federal recognition was extended in October 2013, NGB rejected the request.

	d.  The applicant was fully eligible for promotion when the AMEDD board results were published on 28 March 2013.  He was still a fully-qualified MS officer.  However, he was in school completing the MCCC for FA.  The MDARNG could have administratively moved the applicant into a valid MS vacancy, submitted his promotion packet to NGB, and because he met the qualifications of an MS officer, he would have been promoted.

	e.  This was of no fault of the applicant.  He did everything he could to include submitting multiple requests, keeping in touch with his S-1 while deployed, and continuing his military education upon his return from deployment.  There was a breakdown in the communication chain between the State and the applicant and the State and the NGB.  The unfortunate consequence is that the applicant still has not been promoted to CPT.

	f.  The MDARNG non-concurred with the recommendation.

21.  In a response to the advisory opinion, dated 21 April 2014, the applicant stated, as stated in the advisory opinion, he has completed all the requirements for promotion to CPT and was selected for promotion by a promotion board.  However, due to transfer packet issues, he was denied the promotion.
22.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used in the selection and promotion of commissioned officers of the ARNG and commissioned and warrant officers of the USAR.

	a.  Table 2-1 states the minimum time-in-grade requirements for promotion from 1LT to CPT is 2 years in the lower grade, and the maximum time in grade requirements for promotion from 1LT to CPT is 5 years in the lower grade.

	b.  Table 2-2 states the military education requirements for promotion from 1LT to CPT is completion of any resident officer basic course.  

	c.  Paragraph 2-5c states while on a promotion list resulting from a prior mandatory or position vacancy promotion board or approved for Federal recognition in the higher grade and nominated for Reserve promotion on that basis, an officer may not be considered for promotion by a subsequent mandatory or position vacancy promotion board.

	d.  Paragraph 4-5 states an ARNG officer extended Federal recognition in a higher grade will be appointed in the same grade as a Reserve commissioned officer of the Army by memorandum published by the Chief, National Guard Bureau.  ARNG commissioned officers (other than commissioned warrant officers) who are on a promotion list resulting from a mandatory promotion board will be extended Federal recognition in the higher grade.  This will be without examination by a Federal recognition board when the officer is appointed in the State in that higher grade to fill a vacancy in the ARNG.

	e.  Paragraph 4-15 states except as noted in subparagraph c below, or in parts of this regulation, the effective date of promotion for commissioned officers (except commissioned warrant officers) may not precede the date on which the promotion memorandum is issued.  Do not issue the promotion memorandum before the date the promotion board results are approved and confirmed by the Senate (if required).  In addition, the officer must already be assigned/attached to a position in the higher grade or, if an IRR/IMA officer selected by a mandatory promotion board, have completed the maximum years of service in grade in the current grade.

23.  Army Regulation 140-10 (Army Reserve, Assignments, Attachments, Details, and Transfers) states branch transfer of officers is authorized between basic branches only.  Officers requesting transfer between special branches, from a basic branch to a special branch, and from a special branch to a basic branch require a new appointment.

24.  National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions) prescribes the policy, criteria, and procedures governing the promotion of commissioned officers of the ARNG.

	a.  Paragraph 2-1 states commissioned officers of the ARNG are appointed by the several States under Article 1, Section 8, of the United States Constitution.  These appointments may be federally recognized by the Chief, NGB under such regulations as the Secretary of the Army may prescribe and under the provisions of this regulation.  Officers who are federally recognized in a particular grade and branch shall be tendered an appointment in the same grade as Reserve commissioned officers of the Army with assignment to the ARNG.

	b.  Paragraph 2-2 states the appointment of officers in the ARNG is a function of the State concerned, as distinguished from the Federal recognition of such appointment.  Upon appointment in the ARNG of a State and subscribing to an oath of office, an individual has a State status under which to function. Such individuals acquire a Federal status when they are federally recognized and appointed as a Reserve of the Army

	c.  Paragraph 6-2 states branch transfers are not authorized to or between Chaplain, JAGC, and AMEDD branches.  Provided they have a source of commission other than direct appointment, special branch officers who desire assignment to the basic branches must apply for a new appointment under the provision of chapter 2 of this regulation.

25.  Title 32 U.S. Code (USC), section 307 states in part to be eligible for Federal recognition as an officer of the National Guard, a person must (1) receive a State appointment with a view to filling a vacancy in a federally recognized unit or organization of the National Guard; (2) have the qualifications prescribed by the Secretary concerned for the grade, branch, position, and type of unit or organization involved.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was commissioned as a 2LT, MS Corps in the NYARNG on 19 May 2007.  He completed MS BOLC on 12 November 2008 and he was assigned to an MS position and promoted to 1LT in the MS Corps on 19 November 2008.  



2.  He was transferred to the MDARNG, still in the MS Corps, on 9 November 2009.  Despite being an MS officer, for unknown reasons, he attended and completed the FA BOLC in August 2010.  He even mobilized and served on active duty from August 2010 to January 2011 as an FA officer.  Also for unknown reasons, MDARNG issued a memorandum on 4 May 2011 awarding him AOC 13A and a second conflicting memorandum on 14 December 2011 awarding him AOC 70B.  

3.  In March 2013, while attending the MCCC for FA, he was notified that he had been selected for promotion to CPT by the FY 13 DA RC AMEDD mandatory selection board.  However, he could not be promoted because he did not fill a higher AMEDD position in the State.  

4.  As stated in National Guard Regulation 600-100, transfer to a basic branch from a special branch requires a new appointment.  Appointments are controlled by the State.  In October 2013, the MDARNG appointed the applicant as an FA officer and he received Federal recognition as an FA officer effective 8 October 2013.  He was separated from the ARNG in February 2014 and he was transferred to the USAR on 18 February 2014.  

5.  However, if he missed a USAR promotion selection board after he transferred to the USAR, he could receive an SSB.  If and when he is promoted to CPT, relief in the form of a change to DOR, but not effective date, may be possible.  

6.  Regrettably, in view of the foregoing he is not entitled to the requested 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 that 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)                                         AR20130021056





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ABCMR Record of Proceedings (cont)                                         AR20130021056



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