IN THE CASE OF:	  

		BOARD DATE:	  14 August 2014

		DOCKET NUMBER:  AR20130021087 


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 her date of rank (DOR) to:

* captain (CPT) from 12 December 2003 to 12 November 2003
* major (MAJ) from 27 February 2008 to 12 December 2007 

2.  The applicant states her DOR for CPT and MAJ should reflect the date the California Army National Guard (CAARNG) state promotion orders were effective and not the later date the Federal recognition orders were issued because officer promotions are a state function.

3.  The applicant provides:

* page 23 of National Guard Regulation (NGR) 600-100 (Commissioned Officers Federal Recognition and Related Personnel Actions)
* Undergraduate Academic Record, dated 7 July 1999
* DA Form 1059 (Service School Academic Evaluation Report), dated 
19 December 2000, 20 February 2004, and 17 August 2005
* Orders Number 321-1073, dated 17 November 2003
* Special Orders (SO) Number 315 AR, dated 12 December 2003
* Orders Number 338-1272, dated 4 December 2007
* Orders Number 70-162, dated 11 March 2002
* Orders Number 351-1109, dated 17 December 2007
* SO Number 59 AR, dated 3 March 2008


CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  SO Number 218 AR, issued by the National Guard Bureau (NGB) on 
18 November 1999 extended her Federal recognition upon her initial appointment dated of 21 August 1999.

3.  Orders Number 205-191, issued by the CAARNG on 24 July 2001 promoted her to first lieutenant (1LT) with an effective date of 21 August 2001.

4.  SO Number 215 AR, issued by the NGB on 7 August 2001 extended her Federal recognition in the rank of 1LT with an effective date of 21 August 2001.

5.  Orders Number 321-1073, issued by the CAARNG on 17 November 2003 promoted her to CPT with an effective date of 12 November 2003.  These orders indicate that she was being assigned to a unit vacancy and stated the effective date of promotion in the ARNG would be indicated on the Federal recognition order.

6.  SO Number 315 AR, issued by the NGB on 12 December 2003 extended her Federal recognition in the rank of CPT with an effective date of 12 December 2003.

7.  Orders Number 351-1109, issued by the CAARNG on 17 December 2007 promoted her to MAJ with an effective date of 12 December 2007.  These orders indicate that she was being assigned to a unit vacancy and stated the effective date of promotion in the ARNG would be indicated on the Federal recognition order.

8.  SO Number 59 AR, issued by the NGB on 3 March 2008 extended her Federal recognition in the rank of MAJ with an effective date of 27 February 2008.
9.  Orders Number 297-1091, issued by the CAARNG on 24 October 2013 promoted her to lieutenant colonel (LTC) with an effective date of 9 October 2013.  These orders indicate that she was being assigned to a unit vacancy and stated the effective date of promotion in the ARNG would be indicated on the Federal recognition order.

10.  SO Number 307, issued by the NGB on 12 November 2013 extended her Federal recognition in the rank of LTC with an effective date of 9 October 2013.

11.  During the processing of this case a staff advisory opinion was obtained from the Chief, Personnel Policy Division, NGB, dated 26 February 2014.  The advisory official recommended denial of the applicant's request and stated:

	a.  A CAARNG unit vacancy promoted the applicant to CPT with a DOR of 
12 November 2003.  The DOR listed on the orders was later crossed out and changed to 12 December 2003 to match the Federal recognition orders.  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 Air Force who is extended Federal recognition in the next higher grade in the [ARNG] or Air National Guard under section 307 or 310 of Title 32 shall be the date on which such Federal recognition in that grade is so extended."  This applied to the applicant because she was eligible for Federal recognition in accordance with Title 32 USC, section 307.

	b.  The applicant was selected, by a Department of the Army Selection Board, for promotion to MAJ with an eligibility and DOR of 27 February 2008.  The promotion dated cannot be earlier than the published date.  

		(1)  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers), paragraph 4-21b(2) states, "Unit officers selected by a mandatory board will have a promotion date and effective date no earlier than the date the board is approved or the date of Senate confirmation (if required), provided they are assigned to a position in the higher grade."

		(2)  NGR 600-100, paragraph 8-7c states, "States will not promote a commissioned officer who is being considered by a Headquarters DA (HQDA) Selection Board from the time the board convenes until its recommendations are announced."

12.  A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  She did not respond.


13.  Army Regulation 135-155:

	a.  Paragraph 2–5 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.

	b.  Paragraph 2–10 states mandatory selection boards will convene each year.  These boards will consider Army National Guard of the United States (ARNGUS) and U.S. Army Reserve (USAR) officers on the Reserve Active-Status List (RASL) for promotion to CPT through LTC.  These boards will consider officers for promotion without regard to vacancies in the next higher grade.

	c.  Paragraph 4–5 states an ARNGUS 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 (CNGB).  ARNGUS 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.

	d.  Paragraph 4–21 states the effective date of promotion may not precede the date of the promotion memorandum.   In no case, will the date of rank or effective date of promotion be earlier than the date the board is approved, or, if required, the date of Senate confirmation.  Unit officers selected by a mandatory board will have a promotion date and effective date no earlier than the date the board is approved or the date of Senate confirmation (if required), provided they are assigned to a position in the higher grade.  When the board approval or, if required, Senate confirmation is before assignment to the position in the higher grade.

14.  NGR 600-100, chapter 8 establishes the policies and procedures for promotion of officers in the ARNG.  Essentially, officers serving in a unit where a position vacancy exists may be promoted by the State to fill the position vacancy.  However, until Federal Recognition in the new rank is extended by the NGB, the individual cannot be promoted and paid for the higher rank.  

	a.  Paragraph 8-3 states a commissioned officer who has been promoted by the State and extended Federal recognition in the higher grade will be concurrently promoted to the higher grade in the Reserve of the Army.
	b.  Paragraph 8-6 states the wearing of insignia of the higher grade is not authorized until Federal recognition has been extended by the NGB.  For promotions to the grade of LTC and above, the higher grade may not be worn until confirmation by the Senate has been received.

	c.  Paragraph 8-7c states the 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.

15.  NGR 600-100, paragraph 10-1 states commissioned officers of the ARNG are appointed and promoted by the States under Article 1, Section 8 of the U.S. Constitution.  In order for an officer to be concurrently appointed, promoted, or receive a branch transfer as a Reserve commissioned officer of the Army, the State action must be federally recognized.  Federal recognition action is the acknowledgment by the Federal government that an officer appointed, promoted, or transferred to an authorized grade and position vacancy in the ARNG meets the prescribed laws and regulations.

16.  Title 10 USC, Section 14308(f) states the effective date of a promotion of a Reserve commissioned officer of the Army or Air Force who is extended Federal recognition in the next higher grade in the [ARNG] or Air National Guard under section 307 or 310 of Title 32 shall be the date on which such Federal recognition in that grade is so extended.  

DISCUSSION AND CONCLUSIONS:

1.  On 17 November 2003, the CAARNG issued State orders promoting her to CPT with an effective date of 12 November 2003.  The orders stated the effective date of her promotion would be the date Federal recognition was extended.  This means she was promoted by the State as a temporary measure because she met the criteria for promotion to the next higher grade of CPT and was being assigned to a valid CPT position; however, she was not permitted to wear the rank of CPT.  In accordance with Federal law, her promotion to CPT was not official until, 12 December 2003, the date she was extended Federal recognition. 

2.  The eligibility for promotion does not mean automatic promotion to the next highest grade.  National Guard promotions are a function of the State, but State action must be federally recognized.  The time it took to process her Federal recognition for promotion to CPT reflects the level of resources and personnel allocated to the task by the State and Federal government.  This process applies to all Soldiers in similar positions and not an error or an injustice.  

3.  On 17 December 2007, the CAARNG issued State orders promoting her to MAJ with an effective date of 12 December 2007.  The orders stated the effective date of her promotion would be the date Federal recognition was extended.  However, this was only a temporary measure.  The state did not have the authority to promote her to MAJ because, as stated in the advisory opinion, she was being considered for promotion to MAJ by a mandatory selection board.  The board established her eligibility date and DOR of as 27 February 2008.  Furthermore, she could not have been promoted any earlier that the results of the board were approved.  

4.  Based on the foregoing, there is insufficient evidence to grant 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)                                         AR20130021087





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ABCMR Record of Proceedings (cont)                                         AR20130021087



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