IN THE CASE OF:
BOARD DATE: 12 March 2015
DOCKET NUMBER: AR20140013213
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, in effect, adjustment of her date of rank (DOR) to captain (CPT) to an earlier DOR the Army Board for Correction of Military Records (ABCMR) considers to be reasonable and fair.
2. The applicant states:
a. Her promotion to CPT was delayed for over 18 months because she was provided incorrect information regarding her eligibility for promotion. She became eligible for a unit vacancy promotion (UVP) in October 2012. Upon submitting her packet for promotion, she was informed she was not eligible for promotion because she was not qualified in area of concentration (AOC) 35G (Signals Intelligence/Electronic Warfare), which was the slot she was occupying as a company commander.
b. She later found out that as a military intelligence officer, she was fully qualified and eligible for promotion within a command slot (all 35D (Intelligence Officer) officers are eligible for command slots). Nevertheless, she completed the required course to receive the 35G MOS and then re-submitted her promotion packet in June 2013.
c. The California Army National Guard (CAARNG) published orders and recognized her promotion in September 2013 and her promotion packet were submitted for Federal Recognition to the National Guard Bureau (NGB). However, in March 2014, the NGB informed her that her promotion packet was lost during an administrative system change and she was instructed to file a petition with the ABCMR in order to backdate her DOR. She feels her promotion to CPT should be fairly backdated to address this delay. Both her battalion and brigade commanders support her petition to backdate her DOR. They agree that it is fair to backdate her DOR in order to address the mistakes that have been made.
3. The applicant provides:
* 3 pages of email transmissions ranging in date from 13 November 2012 to 14 December 2012
* Orders Number 267-1153, dated 24 September 2013
* 5 pages of email transmissions ranging in date from 5 March 2014 to
1 July 2014
* 2 pages of email transmissions, dated 14 March 2014
CONSIDERATION OF EVIDENCE:
1. The applicant was appointed as a Reserve commissioned officer of the Army, as a second lieutenant (2LT) in the Military Intelligence Branch, on 3 April 2009.
2. Special Orders (SO) Number 273-6 AR, issued by NGB on 9 December 2010, show she was promoted to first lieutenant (1LT) and extended Federal recognition, effective 29 October 2010.
3. Orders Number 267-1153, issued by the CAARNG on 24 September 2013, shows the State of California promoted her to CPT, effective 20 September 2013.
4. She provided a series of email transmissions ranging from 5 March 2014 to
1 July 2014, which show that on 5 March 2014 her battalion commander sent an e-mail to what appears to be the brigade level. Her commander requested research to determine exactly where the applicant's promotion packet was and where her promotion currently stood. He stated her packet had been at NGB for about 150 days, and had now disappeared from any system he could see. He further stated that other UVP officers whose names were listed on the same initial list as the applicant's had been promoted a month ago. He states that while he is no administrative expert, he cannot fathom why her promotion was taking so long.
5. SO Number 156-37 AR, issued by NGB on 6 June 2014, shows she was promoted to CPT and extended Federal recognition, effective 4 June 2014. Her assigned DOR was also 4 June 2014.
6. During the processing of this case, a staff advisory opinion was obtained from the Chief, Personnel Policy Division, NGB on 29 September 2014. The advisory official recommended partial approval of the applicant's request and stated:
a. The applicant believes her promotion was delayed 18 months because:
* she was misinformed of her required AOC qualification status for the position she held as company commander
* her UVP packet was lost during processing at the NGB
b. The timeline of events in this case is as follows:
* on 28 October 2012, she met the time in grade requirements for promotion to CPT
* on 6 June 2013, she completed the 35G course and became qualified for the position she held
* on 12 June 2013, she submitted her UVP packet to her battalion S-1
* from 18 September 2013 to 31 December 2013, the Federal Recognition section underwent a data migration from a legacy system to the new e-tracker system and multiple Federal recognition submissions were lost
* on 24 September 2013, the CAARNG published Orders Number 267-1153, promoting her from 1LT to CPT effective 20 September 2013
* on 25 September 2013, her UVP packet was prepared and finalized to be sent to the NGB for processing
* on 7 October 2013, the NGB received her UVP packet for processing
* from 8 October 2013 to 25 November 2013, her status in the NGB promotion system was listed as "P-Pres Promo List (Admin team)" while maintenance and migration were still occurring
* on 10 December 2013, promotion list names dropped out of the system at NGB and the data could not be retrieved
* on 9 January 2014, Presidential List 04-13 was submitted to the Secretary of Defense (SECDEF) for approval
* on 6 June 2014, the SECDEF approved Presidential List 06-14 and SO Number 156-37 AR was published promoting her to CPT
c. On 29 September 2014, in consultation with the NGB Federal Recognition Section, a review of the applicant's Federal recognition processing history was conducted. The applicant's promotion to CPT was considered a UVP. The Reserve Officer Promotion Act states, "The effective date of promotion and date of rank of an officer who is promoted under the position vacancy system is the date the Chief, NGB, extends Federal recognition. It is not the date of assignment into the position, nor is it the date of the Federal recognition board action if either of those dates is an earlier date. Therefore, there is no entitlement to pay and allowances prior to the date the Chef, NGB, extends Federal recognition."
d. The applicant's Federal recognition processing history shows her unit recommended her for promotion once she completed the 35G course and her promotion packet was successfully boarded at the State level. The NGB Federal Recognition Section received the packet for processing. Taken into account the approximate 90 days needed for a UVP packet to go through the necessary approval channels, the applicant's current promotion effective date falls outside that time line; therefore, the delay in processing the UVP packet due to system conversion has bearing on the approval date of the board. Although the NGB had data systems problems, consideration of processing the applicant's UVP packet was given 90 days credit from October 2013 to January 2014.
e. The request for the applicant's DOR to be adjusted to 20 September 2013 is not recommended, but consideration was given to the earliest date available due to delayed processing that was no fault of the officer. The applicant's DOR should be adjusted from 4 June 2014 to 9 January 2014 to include back pay and allowances. The date of 9 January 2014 was given because it is the earliest signature date by the SECDEF in which packets from the States were processed at NGB, and it is also the scroll date for Presidential List 04-13.
f. This case recommendation was coordinated and reviewed with the NGB Federal Recognition Section on 29 September 2014, and the CAARNG concurs with its recommendation.
7. A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal; however, she did not respond.
8. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers), paragraph 45 states an Army National Guard of the United States (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, NGB (CNGB).
9. National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions) provides procedures for processing applications for Federal recognition.
a. Chapter 8 establishes the policies and procedures for promotion of officers in the ARNGUS. 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.
b. 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 (the SECDEF) that an officer appointed, promoted, or transferred to an authorized grade and position vacancy in the ARNG meets the prescribed laws and regulations.
10. 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.
11. Authority granted to the Secretaries of the Military Departments in SECDEF 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 SECDEF of the Presidents 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 SECDEF.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends her DOR for promotion to CPT in the CAARNG should be changed from 4 June 2014 to a more suitable and fair date because her unit provided her incorrect information about her qualifications and held her UVP packet, and then NGB had system errors that caused her promotion packet to be dropped from the promotion list.
2. The evidence of record shows the NGB received her UVP packet for processing in October 2013. Her status was listed as "P-Pres Promo List (Admin team)" from 8 October 2013 to 25 November 2013. However, on 10 December 2013, promotion list names dropped out of the electronic database at the NGB and the data could not be retrieved.
3. It appears that some but not all of the names listed as "P-Pres Promo List (Admin team)" from 8 October 2013 to 25 November 2013 dropped out of the system, and that the applicant's name was unfortunately among those names that dropped. On 9 January 2014, Presidential List 04-13 was submitted to the SECDEF for approval. Base on her battalion commander's email, other UVP officers were promoted by Presidential List 04-13 and their names were on the same initial list the applicant's name had appeared on at NGB. It appears her commander is suggesting her name would have been on Presidential List 04-13, dated 9 January 2014, if her name had not been dropped by the system at NGB.
4. The applicant's name was submitted on Presidential List 06-13 and this list was approved and signed by the SECDEF on 4 June 2014. The NGB subsequently published SO Number 156-37 AR on 6 June 2014, which promoted her to CPT and extended her Federal recognition, effective 4 June 2014. Her assigned DOR was also 4 June 2014.
5. NGB recommended the adjustment of her effective date and DOR from 4 June 2014 to 9 January 2014. NGB recommended 9 January 2014 as her adjusted effective date and DOR because it is the earliest date the SECDEF approved a Presidential List that contained the names of officers whose State packets were processed at the NGB during the period in which packets were lost at NGB, and it is also the date the SECDEF approved Presidential List 04-13, the list she and her battalion commander purports her name should have been on.
6. 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. 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.
7. 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 SECDEF, the Board's hands are often tied.
8. Consequently, based on the authorities cited above, any correction to the applicant's effective date of promotion would effectively amend the SECDEF's action and goes beyond the authority of this Board.
9. 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 her DOR to CPT to
9 January 2014. Her effective date of promotion to CPT remains 4 June 2014.
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 9 January 2014.
__________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) AR20140013213
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ABCMR Record of Proceedings (cont) AR20140013213
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