IN THE CASE OF:	  

		BOARD DATE:	  16 October 2014

		DOCKET NUMBER:  AR20140003319 


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 his date of rank (DOR) to first lieutenant (1LT) from 3 January 2013 to 24 July 2012.

2.  The applicant states:

   a.  Upon guidance he received from the Iowa Army National Guard (IAARNG) G-1, Officer Personnel Management, he is requesting an adjustment of his current DOR to 1LT.  The incorrect date was caused by administrative delays and should be updated to the date he would have been promoted, without these delays.

   b.  He was previously an infantry 1LT, before being reappointed to the Medical Specialist Corps (MSC) as a second lieutenant (2LT).  Due to this he was granted an adjusted DOR to 2LT of 24 January 2011.  The state could not submit his promotion to 1LT until the Federal Recognition order for his reappointment was published and showed his adjusted DOR.  Once that was published, his promotion packet for 1LT was submitted to the National Guard Bureau (NGB).  The NGB's Federal Recognition section stated that his DOR could not be adjusted earlier than 3 January 2013 without the Army Board for Correction of Military Records action due to a change in the way these packets were processed.   

3.  The applicant provides copies of the following:

* Special Orders (SO) Number 91 AR
* NGB Form 78 (Recommendation for Promotion to 1LT/Chief Warrant Officer Two)
* Orders Number 183-016
* SO Number 222 AR
* Orders Number 042-042

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed in the IAARNG, Infantry Branch, as a 2LT, on 17 August 2009.  He completed the basic officer leadership course (BOLC) on 18 February 2010.  He was promoted to 1LT on 17 February 2011.

2.  He was reappointed in the IAARNG, MSC, as a 2LT, on 30 June 2012, with an adjusted DOR of 24 January 2011.  

3.  He provided copies of the following:

* SO Number 91 AR, issued by the NGB, on 2 April 2013, initially appointing him in the IAARNG, MSC, as a 2LT, effective 30 June 2012
* NGB Form 78, dated 2 July 2013, which shows he was recommended for promotion to 1LT effective 3 January 2013
* Orders Number 183-016, issued by the IAARNG, on 2 July 2013, promoting him to 1LT with an effective date and DOR of 3 January 2013; the orders stated he was not entitled to pay in the higher grade until Federal Recognition was extended by the NGB
* SO Number 222 AR, issued by the NGB, on 9 September 2013, extending him Federal Recognition and promotion to 1LT with an effective date and DOR of 3 January 2013
* Orders Number 042-042, issued by the IAARNG, on 11 February 2014, amending Orders Number 183-016 to show he was promoted to 1LT with an effective date and DOR of 24 July 2012

4.  In an advisory opinion, dated 18 August 2014, the Chief, Personnel Policy Division, NGB, recommended approval of the applicant's request for adjustment to his DOR to1LT to 24 July 2012 with entitlement to all back pay and allowances associated with this correction.  The NGB official reiterated the applicant's request and stated:

   a.  The applicant held the rank of 1LT as an infantry officer prior to being reappointed as a 2LT in the MSC on 30 June 2012.  As a result, he was granted an adjusted DOR as a 2LT of 24 January 2011 from 30 June 2012 by SO Number 109 AR, dated 26 April 2013.  However, the IAARNG could not submit the applicant's promotion packet to 1LT to the NGB until his Federal Recognition order for his reappointment reflected his adjusted 2LT DOR.  Once his order was amended, the IAARNG submitted his promotion packet to 1LT to the NGB Federal Recognition section.  As a result, the applicant's promotion to 1LTs was delayed to no fault of his own.

   b.  In accordance with Army Regulation (AR) 135-101 (Appointment of Reserve Commissioned Officers for Assignment to the Army Medical Department (AMEDD Branches), dated 15 February 1984, chapter 3-1, "Grade and DOR upon original appointment and assignment to an AMEDD branch will be determined by the number of years of entry grade credit awarded.  Except as limited by maximum credit limits, entry grade credit granted will be the sum of constructive service credit (CSC) and credit for prior commissioned service."  

   c.  The applicant was awarded CSC, a half year for each year, according to the guidance from Table 3-1, AR 135-101.  He had the total of one and a half years CSC that he served 3 years in an active commissioned service in the specialty in which being appointed, AMEDD, as it read on his DA Form 5074 (Record of Award of Entry Grade Credit (Health Services Officers)).  Therefore, the applicant was granted his new DOR of 2LT in the AMEDD of 24 January 2011.

   d.  NGB Memorandum, Reduction in the Time in Grade (TIG) Requirements for Promotion of Reserve Component Officer to 1LT (NGB-ARH Policy   Memo 08-035), dated 25 November 2008, "authorizes all NG officers in the rank of 2LT on the Reserve Active-Status List to be promoted with a minimum of 18 months TIG."  Moreover, paragraph 4 of the policy states, "1LTs may be promoted at 18 months TIG provided they have completed the BOLC and were otherwise qualified.  The effective date of promotion will not proceed 19 August 2008."

   e.  The applicant would have been eligible for promotion to 1LT on 24 July 2012, upon completion of Infantry BOLC on 18 February 2010.  He should have been promoted to 1LT with a promotion effective date and DOR of 24 July 2012. The result of following the instructions in Table 3-1, AR 135-101, and the calculation of a new DOR as a 2LT is proof that the requested relief is warranted by the NGB, Federal Recognition, and AMEDD.  The IAARNG concurs with the recommendation.

5.  On 20 August 2014, the advisory opinion was provided to the applicant for acknowledgement/rebuttal and he did not respond.

6.  National Guard Regulation 600-100, chapter 8, establishes the policies and procedures for promotion of officers in the ARNG.  The regulation states that until Federal Recognition in the new rank is extended by the NGB, the individual cannot be promoted and paid in the higher rank.  The NGB has advised in similar cases such as this that recommendations for promotion must be processed through the NGB staff to obtain approval of the promotion by the President, and that the approval process normally takes approximately 3 months (90 days).

DISCUSSION AND CONCLUSIONS:

1.  The applicant was reappointed in the IAARNG, MSC, as a 2LT on 30 June 2012, with an adjusted DOR of 24 January 2011.  Based on his completion of the BOLC on 18 February 2010 and NGB policy he was eligible for promotion to 1LT with a minimum of 18 months TIG on 24 July 2012.

2.  The IAARNG was unable to submit his promotion packet to the NGB until his Federal Recognition order for his reappointment reflected his adjusted DOR for 2LT.  Upon amendment of those orders, his promotion packet was submitted.  The NGB extended him Federal Recognition and promotion to 1LT with a DOR of 13 January 2013.

3.  His promotion to 1LT was delayed through no fault of his own; therefore, as a matter of equity in this case and the concurrence of the NGB and IAARNG, he is entitled to an adjustment to his DOR for 1LT to 24 July 2012.

4.  With respect to his effective date for 1LT, there is no provision of law applicable to adjust the effective date, as in doing so it would amend an action by the Secretary of the Defense.  The Board does not have the authority to correct actions by the Secretary of Defense.  Therefore, the Board has no authority to correct his effective date for 1LT with entitlement to back pay.

5.  In view of the foregoing, his records should be corrected as recommended below.

BOARD VOTE:

____x___  ____x____  ____x__  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that the State Army National Guard records and the Department of the Army records of the individual concerned be corrected showing the applicant was extended Federal Recognition and promoted to 1LT with a DOR of 24 July 2012.



      ____________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.



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ABCMR Record of Proceedings (cont)                                         AR20140003319



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