IN THE CASE OF:
BOARD DATE: 14 October 2014
DOCKET NUMBER: AR20140011711
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 effective date of rank (DOR) for promotion to major in the California Army National Guard (CAARNG) from 2 May 2014 to 13 December 2013.
2. The applicant states his promotion packet appeared before the December 2013 State Federal Recognition Board and was forwarded electronically to the National Guard Bureau (NGB) shortly thereafter. His CAARNG promotion orders show an effective date of 13 December 2013. Per National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions), paragraph 8-1, the promotion of officers is a function of the State. He was assigned to a major, pay grade O-4 position on 8 April 2013.
3. The applicant provides copies of:
* DA Forms 1059 (Service School Academic Evaluation Report), dated
28 March 2008, 22 March 2013, and 6 September 2013
* Orders 230-1103, CAARNG, dated 18 August 2009
* DA Forms 67-9 (Officer Evaluation Report) for the period ending 8 July 2010, 6 April 2011, 6 April 2012, 11 August 2012, and 14 February 2013
* Orders 53-1004, CAARNG, dated 22 February 2013
* Letter from the American Public University system, dated 7 November 2013
* A Transcript, from the American Public University system, issued on
17 December 2013
* Orders 357-1065, CAARNG, dated 23 December 2013
* Special Orders Number 121 AR, NGB, dated 7 May 2014
* An NGB Memorandum, dated 7 May 2014
* Personnel Qualification Record - Officers/Warrant Officers, prepared on
12 May 2014
* A DA Form 4037 (Officer Record Brief), dated 12 May 2014
* Unit Manning Report, Headquarters and Headquarters Detachment, 185th Military Police Battalion, dated 17 June 2014
CONSIDERATION OF EVIDENCE:
1. On 21 March 2003, the applicant was appointed as a second lieutenant, pay grade O-1 in the CAARNG. He was promoted to first lieutenant, pay grade O-2 on 21 March 2005.
2. On 28 March 2008, the applicant completed the Transportation Captain Career Course.
3. On 1 April 2009, the applicant was promoted to captain, pay grade O-3.
4. In September 2013, the applicant completed the Command and General Staff Officers' Course.
5. On 15 November 2013, a Master of Art in History, with honors, was conferred upon the applicant.
6. On 23 December 2013, the CAARNG published Orders 357-1065 promoting him to major effective 13 December 2013.
7. The NGB published Special Orders Number 121 AR extending the applicant Federal recognition for promotion to major with an effective DOR of 2 May 2014.
8. In a memorandum, dated 7 May 2014, the NGB informed The Adjutant General, CAARNG, of the applicant's promotion to major effective 2 May 2014.
9. During the processing of this case, an advisory opinion, dated 16 September 2014, was obtained from the NGB. The advisory official recommended disapproval of the applicant's request and stated:
a. The CAARNG unit vacancy promoted the applicant to major with a DOR of 13 December 2013. The Federal recognition order established an effective date of promotion of 2 May 2014. As per Title 10, U.S. Code (USC), section 14308(f): The effective date of promotion of a Reserve commissioned officer of the Army who is extended Federal recognition in the next higher grade in the ARNG under section 307 of Title 32 shall be the date on which such Federal recognition in that grade is so extended. This applies to the applicant because he is eligible for Federal recognition in accordance with Title 32 USC section 307.
b. The applicant was promoted by the State on 13 December 2013. The promotion orders were dated 23 December 2013. The packet was submitted to the NGB in early January 2014 and his Federal recognition was approved on
2 May 2014.
c. Normal processing time for a Federal recognition packet is approximately 120 days; therefore, there is no injustice in this case.
d. The CAARNG concurred with the NGB advisory opinion.
10. On 16 September 2014, a copy of this advisory opinion was sent to the applicant for his information and an opportunity to respond. No response has been received.
11. Army Regulation 135-155 (Army National Guard and U.S. Army Reserve Promotion of Commissioned Officers and Warrant Officer Other than General Officers) 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 4 years and the maximum number of years in the lower grade is 7 years. In no case will the DOR or effective date of promotion be earlier than the date the board is approved.
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 PresidentÂ’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 effective DOR for promotion to major in the CAARNG should be changed from 2 May 2014 to 13 December 2013 because the promotion of an officer is a function of the State. He further points out his CAARNG promotion orders show an effective date of 13 December 2013.
2. He was promoted to captain on 1 April 2009, which established his promotion eligibility date to major as 1 April 2016 (based on 7 years in the lower grade). He was promoted by the CAARNG based on a unit vacancy effective 13 December 2013.
3. The applicant was extended Federal recognition for promotion to major, effective 2 May 2014.
4. The only way the applicant's effective date of promotion may be changed is by changing the date his Federal Recognition was extended by the Secretary of Defense. The ABCMR has no jurisdiction over Department of Defense records and therefore cannot make that type of correction.
5. In view of the above, the applicant's request should be denied.
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) AR20130003295
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20140011711
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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