BOARD DATE:	  28 April 2015

		DOCKET NUMBER:  AR20140013547 


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:

* correction of her DOR to first lieutenant (1LT) from "1 October 2010" to 
"1 October 2009"
* correction of Special Orders (SO) Number 158 AR, issued by the National Guard Bureau (NGB) on 27 June 2013, to show her date of rank (DOR) to captain (CPT) as "1 September 2012" vice "12 Jun 2013"

2.  The applicant states that during the period she was appointed a new tracking system was being used and her appointment packet was erroneously deleted.  It was noted at a later date (12 August 2012) when an attempt was made to promote her to CPT.  She believes that, because of the original error with her appointment packet, the NGB and State were forced to hold/delay her promotion by 10 months.  The original recommended date was 1 September 2012.

3.  The applicant provides:

* DA Form 71 (Oath of Office -Military Personnel), dated 1 October 2010
* NGB Form 337 (Oaths of Office), dated 1 October 2010
* Orders Number 272-854, dated 29 September 2010
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 10 November 2011
* a memorandum dated 13 August 2012, subject: Career Management Board Results
* Army National Guard (ARNG) Current Annual Statement, dated 2 October 2012
* SO Number 57 AR, dated 22 February 2013
* SO Number 158 AR, dated 27 February 2013
* SO Number 117, dated 5 MAY 2014

CONSIDERATION OF EVIDENCE:

1.  The applicant's records contain an NGB Form 62E (Application for Federal Recognition as an ARNG Officer or Warrant Officer and Appointment as a Reserve Commissioned Officer or Warrant Officer of the Army in the ARNG of the United States), dated 27 February 2010, which shows she requested Federal recognition and appointment in the ARNG as a 1LT Judge Advocate (JA).

2.  Her record contains an NGB Form 89 (Proceedings of a Federal Recognition Board (FRB)), dated 16 July 2010, which shows an FRB was held by the SCARNG to determine if she was qualified to be awarded Federal recognition.  The proceedings indicate she was satisfactory in her physical qualifications, moral character, and general qualifications and she was qualified for appointment as a 1LT JA.

3.  On 1 October 2010, she executed a DA Form 71 as a Reserve commissioned officer of the Army and an NGB Form 337 as a Reserve commissioned officer of the South Carolina ARNG (SCARNG).

4.  She entered active duty on 3 July 2011 and attended the JA Officer Basic Course from 15 July 2011 to 28 September 2011.  Her DA Form 1059 (Service School Academic Evaluation Report) shows she successfully completed this course.

5.  Her record contains a DD Form 214 that shows she was released from active duty on 10 November 2011.  Item 12i (Effective Date of Pay Grade) contains the entry 1 October 2009.

6.  She provided Career Management Board Results, dated 13 August 2012, which show the SCARNG Career Management Board recommended her for promotion to CPT effective 1 September 2012.

7.  On 22 February 2013, NGB SO Number 57 AR extended her Federal recognition as a 1LT for initial appointment in the ARNG with an effective date of 1 July 2012.


8.  Orders Number 058-853, issued by the SCARNG on 27 February 2013, promoted her to CPT with an effective date and DOR of 22 February 2013.  These orders also assigned her to the position of paragraph 116X line number 06.

9.  Orders Number 066-833, issued by the SCARNG on 7 March 2013, promoted her to CPT with an effective date and DOR of 6 March 2013.  These orders also assigned her to the position of paragraph 116 line number 06.

10.  On 27 June 2013, NGB SO Number 158 AR extended her Federal recognition as a CPT in the ARNG with an effective date and DOR of 12 June 2013.

11.  On 13 March 2014, ABCMR Docket Number AR20130010587, dated  
13 March 2014, directed that all of the applicant's State Army National Guard and Department of the Army records be corrected by amending Special Orders Number 57 AR, issued by the NGB on 22 February 2013, to show she was extended Federal recognition in the rank of 1LT effective 1 October 2010.

12.  On 5 May 2014, SO Number 117-68 amended SO Number 57 AR, issued by the NGB on 22 February 2013, to show she was extended Federal recognition in the rank of 1LT with an effective date of 1 October 2010.

13.  On 24 December 2014, during the processing of this case, an advisory opinion was obtained from the Personnel Policy Division, NGB.  The advisory official recommended disapproval of the applicant's request and stated:

	a.  The applicant believes she should have received a promotion date effective 1 September 2012 because of a 10-month delay in correcting and processing her Federal recognition.

	b.  The timeline of events in this case is as follows:

		(1)  On 13 August 2012, the applicant received results from her State's Career Management Board stating she was recommended for promotion to CPT effective 1 September 2012

		(2)  On 22 February 2013, the applicant received SO Number 57 with the effective date of initial appointment listed as 1 July 2012 for promotion to first lieutenant (1LT).

		(3)  On 27 June 2013, the applicant received SO Number 158 for Federal recognition promotion to CPT.

		(4)  On 19 March 2014, the applicant received an approval notification from the ABCMR to have her Federal recognition to 1LT corrected to 1 October 2010.

		(5)  On 5 May 2014, the applicant received a corrected date for Federal 
recognition to 1LT effective 1 October 2010.

	c.  The initial eligibility dates for SO Number 57 that were corrected from the approved ABCMR case AR20130010587 and her promotion track for both dates below are in accordance with Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers), Table 2-1:

		(1)  1 July 2012 – 1LT (2 years minimum – 5 years maximum)

		(2)  1 July 2014 – CPT (4 years minimum – 7 years maximum)

	d.  The corrected DOR on SO Number 117 is with the adjustment of her extended Federal recognition as 1LT:  

		(1)  1 October 2010 – 1LT (2 years minimum – 5 years maximum)

		(2)  1 October 2012 – CPT (4 years minimum – 7 years maximum)

	e.  Although there was a delay in correcting the applicant's Federal recognition, it has no bearing on her eligibility for promotion via the Unit Vacancy Promotion (UVP) System.  Her corrected dates reflect that she was prematurely boarded and was not eligible for any type of promotion consideration until after    1 October 2012; therefore, the signed and approved Presidential List (PL) Number 19-13, dated 12 June 2013 and effective 27 June 2013, stands.

	f.  This case recommendation was coordinated and reviewed with the NGB Federal recognition section on 25 September 2014.  The SCARNG concurs with this recommendation.

14.  The applicant responded to the advisory opinion in an undated letter wherein she stated:

	a.  The advisory opinion asserts the opinion that she did not have 2 years time in grade and was not eligible for promotion on 1 September 2012; moreover the opinion asserts she was eligible for a UVP promotion in 2012.  Both of these 

findings are in error.  Therefore, she requests the Board reject the recommendation.

	b.  She believes the advisory opinion failed to consider that her appointment was as a Judge Advocate (JA).  Pursuant to Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers Of The Army), paragraph 3-12, appointment grade and DOR bears three years of constructive commissioned service credit due to the completion of a professional law degree. Paragraph 3-12b(1) provides, "The date of rank of an officer commissioned in the Reserve of the Army and assigned to the [Judge Advocate General Corps] JAGC is the date of appointment.  The DOR will further be backdated by the period of commissioned service credit awarded under a. above.  This is in excess of that amount used to establish the officer's appointment grade."

	c.  She was commissioned as a 1LT on 1 October 2010, which would require 2 of the 3 years constructive credit.  This leaves 1 excess year of constructive service credit.  Applying Army Regulation 135-100, paragraph 3-12b(1), means that with constructive commissioned credit, DOR for promotion should be calculated as 1 October 2009.  In sum, on the date of commissioning, JAs are appointed as a 1LT with 1 year time in grade (TIG).  This means she would have reached the two year TIG requirement on 1 October 2011, not on 1 October 2012, as the advisory opinion states.  Pursuant to the above, her request should be granted, as she was, in fact, eligible for promotion with an effective date of      1 September 2012.

	d.  While it is her primary contention that the interpretation of Army Regulation 135-100 above is controlling, she would also like to submit comment as to paragraph e. of the advisory opinion which posits that she was eligible for UVP promotion.  As the Board should be aware, her date of rank as 1LT was adjusted in the previous ABCMR case AR20130010587.  When she was initially commissioned, it should have been a direct commission to 1LT; however, her Federal recognition was never completed.  The oversight was discovered when she was recommended for promotion to CPT.  Therefore, the advisory opinion assertion that she was eligible for UVP anyway is incorrect.  It was her State's position that she could not be promoted at all until she was Federally recognized as an officer.  She was not Federally recognized as an officer of any rank until receipt of SO Number 57 in February 2013, and that is when her promotion to CPT began.  The delay in not submitting her UVP until 2013, resulting in the effective date of 27 June 2013, was solely attributable to the need to become Federally recognized as a 1LT before the promotion process could be reinitiated. 


	e.  Except for the need to be Federally recognized, even if the Board considered her eligible for promotion on 1 October 2012, the process would have been initiated at that time, not in February 2013.  Should the Board find Army Regulation 135-100 inapplicable and maintain her eligibility for promotion would have occurred on 1 October 2012, her promotion still would have been effected months earlier, but for the error corrected in the previous ABCMR case AR20130010587.  As such, this Board should still assign an appropriate DOR based on submission in October 2012, not February 2012.  

	f.  The applicant also requests correction of her DOR to 1LT from 1 October 2010 to 1 October 2009.

15.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers, Other Than General Officers) prescribes the policies and procedures for the promotion of Reserve and Army National Guard officers.  Chapter 2 (Promotion Eligibility and Qualification Requirements), Table 2-1 (Time in Grade Requirements Commissioned Officers, Other Than Commissioned Warrant Officers), provides, in pertinent part, that the minimum TIG as a 1LT for promotion to CPT is 2 years minimum and the maximum TIG is 5 years. 

16.  Army Regulation 135-155, paragraph 4–5 states an ARNG 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).

17.  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 Secretary of Defense (SECDEF)) that an officer appointed, promoted, or transferred to an authorized grade and position vacancy in the ARNG meets the prescribed laws and regulations.

18.  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.

19.  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 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 SECDEF.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was appointed as a Reserve commissioned officer on 1 October 2010.  On 5 May 2014, NGB SO Number  117 amended NGB SO Number 57 AR, dated 22 February 2013, to show she was extended Federal recognition in the rank of 1LT with an effective date of 
1 October 2010.

2.  Her DD Form 214 for the period ending on 10 November 2011 shows her effective date of pay grade for 1LT as 1 October 2009.  Her effective date of pay grade/DOR to 1LT already complies with Army Regulation 135-100, paragraph 
3-12b(1).  As such, no correction to her record is necessary with respect to her DOR to 1LT because she has already received the appropriate credit.

3.  The applicant's DOR/effective date of pay grade to the rank of 1LT was 
1 October 2009.  Therefore, in accordance with Army Regulation 135-155, Table 2-1, she was eligible for promotion from 1 October 2011 (minimum) to 1 October 2014 (maximum).  Any promotion to CPT falling within these dates would have been in compliance with Army Regulation 135-155.

4.  She contends her DOR for promotion to CPT should be reflected as 
"1 September 2012" vice "12 June 2013," based on the Career Management Board Results, dated 13 August 2012, and the fact that her promotion was delayed as a result of her having to have her Federal recognition date to 1LT corrected by the ABCMR.

5.  Despite all the delays, her name/packet was submitted for promotion to CPT on Presidential List 19-13.  Presidential List 19-13 was approved and signed by the SECDEF on 12 June 2013.  The NGB subsequently published SO Number 158 AR on 27 June 2013, which promoted her to CPT and extended her Federal recognition with an effective date and DOR of 12 June 2013.

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 partial relief by amending her DOR to CPT to 
22 February 2013, the date the SCARNG promoted her to CPT.  Her effective date of promotion to CPT remains 12 June 2013.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  __X______  ___X__  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 partial 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 22 February 2013.  

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correcting her DOR to 
1 September 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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