IN THE CASE OF: 

		BOARD DATE: 29 January 2015

		DOCKET NUMBER:  AR20140007405 


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 his date of rank (DOR) to captain (CPT) be changed from 4 March 2011 to 1 November 2008.

2.  The applicant states:

	a.  He was transferred to the Florida Regional Training Facility (RTI) effective 1 July 2008 as a first lieutenant (1LT)/O-2.  He was in a vacant captain 
(CPT)/O-3 position.  He was eligible for promotion to CPT due to the unit vacancy and he requested his unit prepare the promotion packet.  He was informed that he would need to complete the Training, Advising, and Counseling (TAC) officer certification course and receive the additional skill identifier (ASI) 5K before the chain of command would endorse his promotion packet.  This was a unit policy and not a requirement for promotion in the Army regulation.  

	b.  During the period February 2007 to February 2009 he was also serving full-time on active duty Contingency Operation for Active Duty Operational Support (COADOS) duty under Title 10, U.S. Code with First Army East.  He deployed to several mobilization stations.  He was extremely busy and his unit was unable to do anything about scheduling him for the required training for promotion.   Additionally, it was reported there was no one certified to teach the required class.

	c.  On 1 September 2009, he transferred to the 260th Military Intelligence Company and was promoted on 4 March 2011 after he was area of concentration qualified in Military Intelligence (MI).
	d.  He believes the RTI's policy that he had to be TAC certified prior to being allowed to submit his promotion packet for CPT was unjust and erroneous.  He was fully qualified in July 2008 for promotion to CPT and his promotion packet should have been submitted.

3.  The applicant provides:

* 1LT promotion orders
* COADOS orders dated 1 February 2007 and 25 January 2008
* transfer orders to the RTI as a TAC officer effective 1 July 2008
* transfer orders from RTI to 260th MI Battalion effective 1 September 2009
* CPT promotion orders 
* National Guard Bureau (NGB) Form 333 (Discrimination Complaint in the Army and Air Force National Guard), dated 10 December 2009

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a second lieutenant in the Florida Army National Guard (FLARNG) on 1 January 2004 as a second lieutenant/O-1.

2.  He was promoted to first lieutenant effective 1 January 2006.  

3.  U.S. Army Human Resources Command (AHRC), Alexandria, Virginia, Orders 
A-02-702715, dated 1 February 2007, show he was ordered to active duty for a temporary tour of active duty (TTAD) for the period 15 February 2007 to 
14 February 2008.

4.  AHRC Orders A-01-801599, dated 25 January 2008, show he was ordered to active duty for COADOS for the period 15 February 2008 to 13 February 2009.

5.  Florida National Guard Orders 171-064, dated 19 July 2008, show he was transferred to the 2d Battalion, 211th Regiment, RTI, Starke, Florida as a TAC officer effective 1 July 2008.  These orders show "Duty position qualification:  QUALIFIED."

6.  Florida National Guard Orders 243-126, dated 31 August 2009, show he was transferred to Company B, 260th Battalion, Miami, Florida, as a tactical intelligence officer, effective 1 September 2009.

7.  Florida National Guard Orders 063-068, dated 4 March 2011, show he was promoted to CPT effective 4 March 2011.

8.  Departments of the Army and Air Force, NGB, Special Orders Number 51 AR, dated 8 March 2011, show he was granted Federal Recognition for promotion to CPT effective 4 March 2011.

9.  An advisory opinion was obtained from the Chief Personnel Policy Division, National Guard Bureau (NGB) on 8 September 2014.  The opining official recommended approval of the applicant's request and stated that:

	a.  According to Army Regulation (AR) 135-155 (Army National Guard and U.S. Army Reserve Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), the requirements for promotion to CPT are to be in a promotable duty position, completion of a bachelor's degree, military officer basic course, no flags, no adverse or negative evaluation reports pending, and have a minimum of two years time in grade.  The applicant met all the requirements and he was eligible to be promoted to CPT.

	b.  The RTI commander informed the applicant that he would endorse his promotion packet once he completed the instructor's course.  The RTI commander and cadre acknowledge that the applicant met the minimum qualifications but purposefully withheld their endorsement which did not allow the applicant to submit his promotion packet.  

	c.  In an email, dated 11 August 2014, the FLARNG Assistant G-1 stated that the applicant failed to meet the skills requirement for his assigned position. "If not qualified as an instructor, he cannot do what the job required."  Although the 5K ASI is required for the duty position, it is not a requirement for promotion. 

	d.. The FLARNG RTI chain of command acknowledge that the applicant met the minimum requirements for promotion, yet they imposed their own standards for promotion not in accordance with AR 135-155.

	e.  The applicant's CPT promotion orders should be amended to show the requested DOR and he should receive all back pay resulting from this action. 

10.  The applicant was provided with a copy of this advisory opinion and he concurred. 

11.  AR 135-155 prescribes the policies and procedures for the promotion of Reserve Component officers.  It states that for promotion from captain to major, the minimum number of years in the lower grade is 2 years and the maximum number of years in the lower grade is 5 years.  

12.  Authority granted to the Secretaries of the Military Departments in Secretary of Defense Memorandum, Subject:  Re-delegation of Authority under Executive Order 12396, dated 9 December 1982, to appoint officers under section 624 of Title 10, USC, was rescinded effective 1 July 2005 based on advice from the Department of Justice that prohibits re-delegation below the Secretary of Defense of the President’s authority to appoint military officers.  All military officer appointments under section 12203 of Title 10, USC, including original appointments, in the Reserve of the Army, not previously approved by 30 June 2005, shall be submitted to the Secretary of Defense.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DOR for promotion to CPT in the FLARNG should be changed from 4 March 2011 to 1 November 2008 because 
even though he was eligible, his unit did not prepare his promotion packet because he had not completed the TAC officer certification course.

2.  The applicant was extended Federal recognition for promotion to CPT effective 4 March 2011.
 
3.  NGB recommended the applicant's DOR be backdated to 1 November 2008, and that he receive back pay and allowances.  The RTI commander and cadre acknowledge that the applicant met the minimum qualifications but purposefully withheld their endorsement which did not allow the applicant to submit his promotion packet.  

4.  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.

5.  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.

6.  Any correction by the ABCMR must comport with other laws.  The Board may not ignore a requirement contained in or an 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.

7.  Consequently, based on the authorities cited above, any correction to the applicant's effective date of promotion would effectively amend the Secretary of Defense's action and goes beyond the authority of this Board.
8.  However, when a valid appointment has been accomplished, the Board may take action to grant an officer an earlier DOR if warranted by the facts in the case.  Based upon this guidance and as a matter of equity, it would be appropriate to grant the applicant relief by amending his DOR to CPT to 
1 November 2008.  His effective date of promotion to CPT remains 4 March 2011.

BOARD VOTE:

___x____  ____x___  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army and State ARNG records of the individual concerned be corrected by amending the applicant's DOR to CPT to read 1 November 2008.  



      ____________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)                                         AR20110003856



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ABCMR Record of Proceedings (cont)                                         AR20140007405



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