IN THE CASE OF:	   

		BOARD DATE:	    29 January 2015

		DOCKET NUMBER:  AR20140004818 


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 reconsideration of his previous request for correction of his date of rank (DOR) to captain (CPT) in the Army National Guard (ARNG) to 1 July 2011, and payment of back pay and allowances as a result of this correction.

2.  The applicant states he is providing a new argument that was not previously considered.  

3.  The applicant provides two letters, a memorandum, six Army Board for Correction of Military Records (ABCMR) Records of Proceedings, two orders, a certificate, DA Form 1059 (Service School Academic Evaluation Report (AER)), DA Form 3497 (Counsel's Oath), three pages titled Title 10 - Armed Forces, and Department of Defense Instruction (DODI) 1310.01 dated 23 August 2013 with 3 enclosures.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120009988, on 16 May 2013.

2.  As a new argument, the applicant states:

	a.  The Board stated that without question the failure to process his Federal recognition paperwork was in error and occurred through no fault of his own.  The Board also determined he should be entitled to relief but stated the Board only had the authority to change the DOR and did not have the authority to change the effective DOR as that may amend the Secretary of Defense's action. However, there are many cases with essential identical circumstances as his where the Board used its authority to change the effective DOR to correct an injustice and award back pay and allowances.

	b.  In ABCMR AR20120000045, dated 6 November 2012, a Judge Advocate (JA) officer with similar circumstances as his was granted relief.  In that case, the applicant's promotion to CPT as an ARNG JA was also delayed due to an administrative error regarding the submission of his Federal recognition paperwork and he was also deployed during the time of the injustice. The Board granted relief and backdated the effective date and DOR from 3 March 2011 to 26 May 2010.  The Board stated equitable relief was warranted and mentioned he appeared qualified for a position vacancy promotion.

	c.  In his case, he was also qualified for a position vacancy promotion; all JA position vacancies are for at least the rank of CPT.  Further, in his case the circumstances surrounding his deployment were compelling.  The original brigade JA was injured in a car accident preventing him from deploying.  The trial counsel at the time was then promoted to fill the brigade JA slot, a lieutenant colonel (LTC) billet.  They then needed to fill the trial counsel position vacancy, a CPT billet.  His decision to volunteer for deployment to fill this unexpected vacancy on extremely short notice was a difficult one since his son was born on 15 January 2011.  He was assured his promotion to CPT would occur as quickly as possible.  The additional anticipated income was relied upon when his family considered the financial effects the deployment would have upon his family.  

	d.  He believes if the Board was able to correct the injustice in the case mentioned above with compelling circumstances similar to his, then it can correct the injustice in his case.  His DOR to first lieutenant (1LT) was 24 November 2008; thus, he qualified for a position vacancy promotion having the time in grade (TIG) and having completed all other requirements.  He was second in his JA General Officer Basic Course (JAGOBC).  He believes this shows he took his responsibility to learn the tools he needed to be the best JA he could be very seriously.  Also, by volunteering on short notice for a deployment in his circumstances reflects his commitment to the U.S. Army and our Soldiers.  There are additional cases with similar circumstances wherein the Board used its authority to change the effective DOR on numerous occasions to correct an injustice.


	e.  In ABCMR AR20060001894, dated 9 November 2006, a Soldier requested his DOR be corrected due to an administrative error.  The Board concluded "It is clear that an administrative error denied the applicant permanent Federal recognition for promotion to the grade of major (MAJ) effective 1 December 2005.  Based on applicable regulation and the foregoing, the applicant is entitled to have Federal Recognition (FEDREC) Order Number 21 AR, dated 23 January 2006, amended to show the effective date of permanent Federal recognition for promotion to the grade of MAJ as 1 December 2005 with a DOR of 28 February 2005."

	f.  In ABCMR AR20060001447, dated 17 August 2006, a Soldier requested his DOR be corrected due to an administrative error in the processing of his permanent Federal recognition orders.  The Board concluded "From the foregoing, it is clear that an administrative error denied the applicant permanent Federal recognition for promotion to the grade of CPT effective 28 June 2005.  Based on applicable regulation, the applicant is entitled to have FEDREC Order Number 289 AR, dated 4 October 2005, amended to show the effective date of permanent Federal recognition for promotion to the grade of CPT as 28 June 2005."

	g.  In ABCMR AR20050006632, dated 12 January 2006, a Soldier requested his effective DOR be adjusted due to a delay in his completed promotion and subsequent Federal recognition through no fault of his own.  The Board concluded "Based on applicable laws and regulation, the applicant is entitled to have FEDREC Order Number 89 AR, dated 22 March 2005, amended to show the effective date of permanent Federal recognition for promotion to the grade of CPT is 14 November 2004." 

	h.  In addition, in his case the administrative error caused his family to be without anticipated additional income while he was deployed to Afghanistan.  This was an additional and unnecessary stress put on his family during a tumultuous time.  Further, as a JA it was embarrassing to be a 1LT for his entire deployment considering most JA officers are promoted to CPT much earlier.  While deployed, he was asked by many why he had not been promoted and some informed him they thought he must have done something wrong.  He had strongly believed that if the Army caused the harm, the Army would correct that harm.  While deployed, he frequently assured his family and other Soldiers that it was his belief that everything would eventually get corrected.  




	i.  Enclosure 3 to DODI 1310.01, paragraph 8, dated 23 August 2013, states, in part, "The Secretary of the Military Department concerned may adjust the DOR of an officer, except a general or flag officer, appointed to a higher grade under section 624(a) or 14308(a) of reference (f) if the appointment of that officer to the higher grade is delayed by unusual circumstances."  

	j.  Title 10 U.S. Code (USC) 741(d)(4)(A) states in part, "The Secretary concerned may adjust the DOR of an officer, except a general or flag officer, appointed to a higher grade under section 624(a) of this title to a higher grade that is not a general officer or flag officer grade if the appointment of that officer to that grade is delayed from the date on which (as determined by the Secretary) it would otherwise have been made by reason of unusual circumstances (as determined by the Secretary)."  Title 10 USC 741(d)(4)(C) states in part, "The adjusted DOR applicable to the grade of an officer under subparagraph (A) shall be the effective date for…the officer's pay and allowances for that grade."  

	k.  Thus, it is his belief the Board does have the authority it has exercised in the past to change the effective DOR.  Changing the effective DOR to coincide with his DOR from the original Board decision will in reality only result in his being awarded back pay and allowances.  He does not believe this would usurp the Secretary of Defense's action as he was actually promoted to CPT, an action which was simply delayed by administrative error.  The National Guard Bureau's (NGB) advisory opinion also concluded his effective DOR should be adjusted to correct the administrative error.

3.  The applicant’s new arguments will be considered by the Board.

4.  On 6 June 2009, the applicant submitted an NGB Form 62 (Application for FEDREC as an ARNG) for appointment as a JAG officer in the rank of 1LT.

5.  On 24 November 2009, a FEDREC Board (FRB) was held by the South Carolina ARNG (SCARNG) to determine if he was qualified to be awarded Federal recognition.  The proceedings indicated he was satisfactory in his physical qualifications, moral character and general qualifications and the FRB found him qualified for appointment as a 1LT.  

6.  On 30 November 2009, the SCARNG published Orders 334-822 appointing him as a 1LT in the SCARNG effective 24 November 2009 with a DOR of 24 November 2009 and he executed an oath of office on the same date.  

7.  He attended and successfully completed the JAGOBC from 4 July through 29 September 2010.  

8.  On 13 February 2011, he entered active duty in support of Operation Enduring Freedom as a member of the ARNG and served in Afghanistan from 14 March to 8 December 2011.

9.  On 9 March 2011, the SCARNG published Orders 068-862 promoting him to CPT effective 9 March 2011 and with a DOR of 9 March 2011.  

10.  On 26 August 2011, NGB published Special Orders Number 198 AR extending him FEDREC for promotion to 1LT effective 24 November 2009.

11.  On 20 December 2011, NGB published Special Orders Number 341 AR extending him FEDREC for promotion to CPT effective 19 December 2011.

12.  In an advisory opinion, dated 20 November 2012, the Acting Chief of the Personnel Policy Division, NGB, recommended approval of the applicant's request to correct his DOR to CPT with receipt of back pay and allowances.  The advisory official stated the correction of his DOR to CPT was delayed as a result of his initial FEDREC for 1LT not being processed.  The NGB rejected the FEDREC action to CPT based on his never receiving FEDREC to 1LT.  Once this action was corrected and FEDREC was granted for his 1LT promotion, his packet was resubmitted to NGB FEDREC Branch with an order being published for his promotion to CPT.

13.  Title 32, USC, section 307(d) provides that FEDREC shall be extended to each officer of the Army Reserve who has qualified for appointment as an officer of the Army National Guard in his reserve grade.  

14.  Title 10, USC, section 14308(f) (Effective date of promotion after FEDREC), states the effective date of a promotion of a Reserve commissioned officer of the Army or the Air Force who is extended FEDREC in the next higher grade in the ARNG or the Air National Guard under section 307 or 310 of Title 32 shall be the date on which such FEDREC in that grade is so extended.  Pursuant to Title 10, USC, section 741(d) (2) provides that unless otherwise provided by law, the DOR of an officer who holds a grade as a result of a promotion is the date of his appointment to that grade.

15.  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.  



DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that in 2012 and earlier the ABCMR had granted relief and corrected the DOR for some ARNG Soldiers is noted.  Since the law did not change until 27 July 2005, the ABCMR had authority to change effective dates in cases AR20060001447 and AR20050006832.  As to the latter case and especially the AR20120000045, it was not until after that final decision was cited that DoD and the Army Review Board Agency determined that the Board’s indeed lacked authority to award an effective date for an officer and the practice was halted.  

2.  DODI 1310.0 states the Secretary of the Military Department concerned may adjust the DOR of an officer, except a general or flag officer, appointed to a higher grade if the appointment was delayed by unusual circumstances.  This means the ABCMR may only correct Army records.  The Board has no authority to correct records created by the other Services or the Department of Defense such as the ARNG.

3.  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; however, the authority granted by this statute is not unlimited.

4.  Any correction by the ABCMR must comport with other laws.  The Board may not ignore a requirement contained in, or outcome dictated by, another statute.  Typically, the ABCMR achieves this by changing an operative fact in the record, thereby making a correction in compliance with that statute.  Where officer personnel issues are involved that require approval by the Secretary of Defense, the Board's hands are often tied.  Consequently, any correction to his DOR would effectively amend the Secretary of Defense's action and goes beyond the authority of this Board.

5.  In view of the foregoing, the applicant 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 to amend the decision of the ABCMR set forth in Docket Number AR AR20120009988, dated 16 May 2013.



      _____________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)                                         AR20140004818





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140004818



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1