IN THE CASE OF:	  

		BOARD DATE:	  6 March 2015

		DOCKET NUMBER:  AR20140014726 


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 effective date of promotion to lieutenant colonel (LTC)/pay grade O5 be corrected to the effective date of promotion that would have been in place had he been selected for promotion by the September 2012 Unit Vacancy Promotion Board and that he receive any back pay and allowances due.

2.  The applicant states he should have been evaluated for promotion via a unit vacancy promotion board in September of 2012.  His roster was returned to the state in January of 2013 due to no fault of his own.  He was required to resubmit his packet via a special selection board (SSB) for consideration for promotion with an effective date established by the fiscal year 2013 (FY13) LTC Army Promotion List (APL) Reserve Component (RC) Promotion Selection Board (PSB).  Other personnel from his Unit Vacancy Promotion Board were awarded retroactive dates of rank (DOR) and pay to 9 January 2013.

3.  The applicant provides a five-page brief from his counsel with five enclosures. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's effective date of promotion to LTC be changed to 9 January 2013 and that he receive pay increases for the period of January 2013 through November 2013.

2.  Counsel states the timing of the applicant's promotion and his effective date of promotion were due to an administrative error.
	a.  On 31 August 2012 his promotion vacancy package was submitted to the National Guard Bureau (NGB) after having been reviewed by the New York Army National Guard (NYARNG) on 22 August 2012.

	b.  Based on his DOR for major, the applicant was scheduled to be considered by the FY13 LTC APL RC PSB in January 2013.  This roster was sent to the State of New York with the applicant's name on it on 14 September 2012.

	c.  His unit vacancy promotion package had been submitted prior to the 
10 September 2012 deadline.  However, due to a delay in the movement of the scroll, the FY13 LTC APL RC PSB convened before the scroll was approved and as a result, the scroll with his name was recalled on 8 January 2013 and returned to the state on 14 January 2013 without action.

	d.  Separately, his name was removed from FY13 LTC APL RC PSB consideration in January because of the pending unit vacancy promotion.

	e.  He was advised to request an SSB to be considered for promotion under the same criteria and instructions as the FY13 LTC APL RC PSB and later request the appropriate effective date from the Army Board for Correction of Military Records (ABCMR).

3.  Counsel states:

	a.  Title 10, U.S. Code, section 14502 (10 USC 14502) provides an avenue of relief for officers who were considered but not selected for promotion due to a material error in the promotion process.

	b.  10 USC 14502(b) permits the Secretary of the military service concerned to convene an SSB to determine whether the officer or former officer should be recommended for promotion.

	c.  10 USC 14502(e)(1) states an officer whose name is placed on a promotion list as a result of recommendation for promotion by a SSB shall as soon as practicable be appointed to the next higher grade in accordance with the law and policies which would have been applicable had he been recommended for promotion by the board which should have considered or which did consider him.

	d.  10 USC 14502(e)(2) states an officer who is promoted to the next higher grade as the result of the recommendation of a SSB shall, upon such promotion have the same DOR, the same effective date for the pay and allowances of that grade, and the same position on the reserve active-status list as the officer would have had if the officer had been recommended for promotion to that grade by the selection board which should have considered or which did consider the officer.

	e.  The applicant was properly granted an SSB when he was unjustly passed over and reasonably relied on instructions from the New York Office of Personnel Management to request consideration under the FY13 LTC APL RC PSB criteria.

	f.  Ordinarily, a member's promotion effective date cannot be prior to the date upon which the promotion board met to consider the promotion.  However, in this case, as the removal of his name from the unit vacancy scroll was not his fault. An earlier effective date for the applicant is not only permitted, but is in fact required by law.

	g.  The applicant should have been promoted by the September 2012 unit vacancy promotion board.  Had he been promoted by that board his effective date of promotion would have been 9 January 2013.

4.  Counsel provides a five-page brief with five enclosures.

CONSIDERATION OF EVIDENCE:

1.  He was commissioned a Reserve officer on 16 May 1988.  He served 9 years, 4 months, and 9 days on active duty in a commissioned status.  He was appointed a captain in the NYARNG on 1 October 2007.  He was promoted to major effective 31 March 2008.

2.  On 31 August 2012, he was selected for an O5 battalion commander position and his promotion vacancy package was submitted to the NGB after having been reviewed by the NYARNG Federal Recognition Board (FRB) on 22 August 2012.

3.  Military Personnel Message Number 12-313 announced the convening date of 
8 January 2013 for the FY13 LTC APL RC PSB.  The promotion zone consisted of officers with a DOR from 1 April 2007 through 31 March 2008.

4.  His position vacancy promotion package had been submitted prior to the 
10 September 2012 deadline.  However, due to a delay in the movement of the scroll, the FY13 LTC APL RC PSB convened before the scroll was approved and as a result, the scroll with his name was recalled on 8 January 2013 and returned to the state on 14 January 2013 without action.

5.  His name was removed on 26 November 2012 from consideration by the FY13 LTC APL RC PSB because of the pending position vacancy promotion.
6.  On 18 January 2013, he requested an SSB to be considered under the criteria and instructions of the FY13 LTC APL RC PSB.

7.  On 7 November 2013, HRC notified him he was selected for promotion to LTC by a Department of the Army SSB under the criteria and instructions established for the regularly constituted FY13 LTC APL RC PSB.

8.  A memorandum, dated 20 November 2013, from NGB promoted him to LTC with an effective date and DOR of 15 November 2013.

9.  Joint Force Headquarters (JFH), Latham, NY Orders 319-1024, dated 
15 November 2013, promoted him to LTC with an effective date and DOR of 
15 November 2013.

10.  NGB Special Orders Number 313, dated 20 November 2013, granted him Federal recognition in the grade of LTC with an effective date and DOR of 
15 November 2013.

11.  JFH Orders 107-1028, dated 17 April 2014, amended JFH Orders 319-1024, dated 15 November 2013, changing his effective and DOR for LTC to 
20 September 2013, the approval date of the FY13 LTC APL RC PSB.
 
12.  NGB Special Orders Number 103, dated 21 April 2014, changed NGB Special Orders 313, dated 20 November 2013, to show his Federal recognition effective date and DOR as 20 September 2013.

13.  In the processing of this case an advisory opinion, dated 9 December 2014, was obtained from the NGB.  NGB recommended approval of his request to change his effective date and DOR for promotion to LTC to 9 January 2013 and that he receive all back pay and allowances.

	a.  The applicant was selected for an O5 battalion commander position and his promotion vacancy package was submitted to NGB after having been reviewed by the NYARNG FRB on 22 August 2012.

	b.  He was eligible to be reviewed by the FY13 LTC APL RC PSB that was convened on 8 January 2013.  Therefore, due to a delay in the movement of the scroll, the FY13 LTC APL RC PSB was convened and the scroll was recalled and returned to the State on 14 January 2013 without action.  He was also removed from consideration by the FY13 LTC APL RC PSB.

14.  The applicant was provided a copy of the opinion; however, he did not provide any additional comments.
15.  A memorandum, dated 27 September 2006, for the Military Personnel Management Officers of all States, Puerto Rico, the Virgin Islands, Guam, and the District of Columbia, subject: Commissioned Officers - Federal Recognition and Related Personnel Actions (NGR 600-100) Implementing Draft (NGB-ARH Policy Memo #06-056) implemented policy for use as an implementing draft until the final version of the regulation is published.  This policy supersedes the current (and all other versions) of National Guard Regulation 600-100.  Paragraph 8-7c states an officer is ineligible for consideration for promotion by an FRB after the first mandatory selection board has convened for which he or she is in the promotion zone.

16.  A memorandum, dated 10 February 2015, from the Under Secretary of Defense states that an opinion of the United States Court of Appeals for the Federal Circuit, issued 8 January 2015, affirms an important limitation on the authority of Military Department correction boards:  they do not have the authority to appoint military officers.  This decision affirms that Military Department correction boards do not have the authority to remedy perceived errors of injustices by correcting records to show that an officer has been appointed to a certain grade when the officer has not been appointed to that grade by the President or the Secretary of Defense.  Boards may only make such a correction to reflect that a proper appointment has occurred.  They may also adjust the DOR of an officer who has been properly appointed.

17.  Army Regulation 135-55 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) provides policy for selecting and promoting commissioned officers of both the Army National Guard of the United States (ARNGUS) and the U.S. Army Reserve (USAR), and warrant officers of the USAR.

	a.  Paragraph 3-19a(2) states special selection boards, convened under the Reserve Officer Personnel Management Act (ROPMA) on and after 1 October 1996, will reconsider commissioned officers, (other than commissioned warrant officers) who were wrongly not considered and reconsider commissioned officers (other than commissioned warrant officers) who were considered but not selected by mandatory promotion boards that convened on or after 1 October 1996.  These boards do not reconsider officers who were not considered or not selected by mandatory promotion boards that convened before 1 October 1996.

	b.  Paragraph 3-19c states these boards are convened to correct/prevent an injustice to an officer or former officer who was eligible for promotion but whose records:

		(1)  Through error, were not submitted to a mandatory promotion selection board for consideration.

		(2)  Contained a material error when reviewed by the mandatory selection board.

18.  10 USC 14111 states that if the authority of the President to approve or disapprove the report of promotion boards is delegated to the Secretary of Defense, that authority may not be redelegated except to an official in the Office of the Secretary of Defense.

19.  10 USC 14502(a) states in the case of an officer or former officer who the Secretary of the military department concerned determines was not considered for selection for promotion from in or above the promotion zone by a mandatory
promotion board because of administrative error, or whose name was not placed on an all-fully-qualified-officers list under section 14308(b)(4) of this title because of administrative error, the Secretary concerned shall convene a special selection
board under this subsection to determine whether such officer or former officer should be recommended for promotion.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his promotion to LTC should be corrected to show an effective date and DOR of 9 January 2013.

2.  Although he had been selected for a position vacancy promotion to LTC on 
31 August 2012, his promotion had not been scrolled and approved by the Secretary of Defense when the FY13 LTC APL RC PSB was convened on 
8 January 2013. This was the first mandatory selection board for which he was in the promotion zone.  Therefore, in accordance with National Guard Regulation 600-100 his name was properly removed from the scroll for the position vacancy promotion.

3.  His name was removed from consideration by the FY13 LTC APL RC PSB in error.  He was granted an SSB and subsequently selected and promoted to LTC with an effective date and DOR of 15 November 2013.  This date was amended to 20 September 2013, based on the approval date of the FY13 LTC APL RC PSB.  Therefore, the provisions of 10 USC 14502(e)(1) and (2) were complied with.



4.  10 USC 14502(a) provides for an SSB only when an officer was not considered for selection for promotion from in or above the promotion zone by a mandatory promotion board because of administrative error.  Therefore, an SSB is not authorized for a position vacancy board.

5.  As stated in 10 USC 14111 and affirmed by the Secretary of Defense memorandum, dated 10 February 2015, the ABCMR does not have the authority to change the effective date of promotion for officers.  Therefore, there is no provision for changing the applicant's effective date of promotion to LTC.

6.  The applicant was selected for promotion to LTC by an SSB under the same criteria and instructions established for the regularly constituted FY13 LTC APL RC PSB.  His position vacancy promotion was properly canceled when the board was convened.  His DOR is assigned in the same manner as others selected by the FY13 LTC APL RC PSB.  Therefore, it would not be equitable to change his DOR for LTC.

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)                                         AR20140014726



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ABCMR Record of Proceedings (cont)                                         AR20140014726



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