IN THE CASE OF:	  

		BOARD DATE:	  4 December 2014

		DOCKET NUMBER:  AR20140015817 


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 her date of rank (DOR) for promotion to captain (CPT)/O-3 be adjusted from 14 March 2014 to 8 March 2013 with all back pay and allowances.  

2.  She states:

* she believes her record is unjust
* she was flagged through no fault of her own
* after the investigation was completed by the U.S. Army Criminal Investigation Command they agreed that she didn't do anything immoral or unethical
* she met the requirements for promotion to CPT on her original scroll date

3.  She provides:

* three DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER))
* four DA Forms 67-9 (Officer Evaluation Report (OER))
* Recommendation for "Caught In The Act/Time Off Award"
* Basic Officer Leadership Course diploma
* two DA Forms 1059 (Service School Academic Evaluation Report (AER))
* a letter from the Assistant Commandant, U.S. Quartermaster Center and School
* a memorandum, Subject:  Notification of Involuntary Delay of Promotion
* DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG))
* a memorandum, Subject:  Request Review by Army Board for Correction of Military Records for CPT [applicant's name]
* congressional correspondence
* screen shots

CONSIDERATION OF EVIDENCE:

1.  At the time of her application, she was serving as a CPT/O-3E in the Army National Guard (ARNG) Active Guard Reserve (AGR).

2.  On 24 September 2008, she was appointed as a second lieutenant in the South Dakota (SDARNG) after having prior enlisted service.  She was granted Federal recognition by Special Orders Number 327 AR, dated 17 December 2008.

3.  Her DA Form 1059, dated 25 February 2009 and diploma from the U.S. Army Infantry School, both show she completed the Basic Officer Leadership Course on 26 February 2009. 

4.  Her DA Form 1059, dated 22 May 2009, shows she completed the Quartermaster Basic Officer Leader Course Phase 3 (Course Number 003-09) on 22 May 2009.

5.  She was promoted to first lieutenant (1LT)/O-2 effective 24 March 2010.

6.  In a 21 February 2013 memorandum, the Chief, Personnel Division, National Guard Bureau (NGB) informed her that the Secretary of the Army had approved screening for exemplary conduct on all officers recommended for promotion.  As a result of the screening, Department of the Army (DA)-G1 identified unfavorable information and directed the NGB to remove her name from Scroll PL02-13.  She was informed that the flagging action would remain in effect until removed by the NGB, once the unfavorable information was adjudicated.  

7.  She provided a DA Form 268, dated 21 February 2013, which shows a flag was initiated effective 11 February 2013 for elimination or removal from selection list (code F).  

8.  In a 23 July 2014 memorandum, the NGB promoted her to the rank of CPT with an effective date and DOR of 4 March 2014.



9.  NGB Special Orders Number 203, dated 23 July 2014, granted her Federal recognition for promotion to CPT, effective 4 March 2014.

10.  In a 19 August 2014 memorandum, The Adjutant General, SDARNG requested that this Board review her records for a final determination of DOR as a CPT.  The Adjutant General stated:

	a.  she was selected and assigned to the CPT/O-3 90A92 (Supply and Services Officer) position in the 109th Regional Support Group on 1 September 2012.

	b.  she was submitted for a unit vacancy promotion on 20 September 2012 and assigned to scroll PL 02-13.  On 18 January 2013, scroll PL 02-13 was returned from the Pentagon and the personnel were placed on scroll PL 14-13.  She was removed from the scroll on 1 March 2013 by DA through the special case screening process (G-RAP).

	c.  while waiting for the special case investigation, she was caught in the fiscal year 2014 (FY14) CPT Army Promotion List (APL) DA Selection Board process.  

	d.  the FY14 CPT APL board convened on 3 December 2013 and recessed on 11 December 2013.  She was interviewed by the investigating officer in January 2014 and was subsequently cleared.  She was selected for promotion by the FY14 CPT APL board, was cleared by all Army approvals, and submitted for promotion to the Office of the Secretary of Defense on 23 June 2014.  She was subsequently promoted to CPT and given a DOR of 4 March 2014 (FY14 CPT APL approval date).

	e.  she should be given consideration to have her DOR adjusted to match the day scroll PL 14-13 was officially signed on 8 March 2013.  Due to the length of the special case investigation and no fault of her own, her DOR was severely affected due to being removed from scroll PL 14-13 and having to go through the DA Selection Board process.  

11.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for promotion of Reserve officers.  Paragraph 3-18 states an officer's name will not be removed from a promotion list except as authorized in this paragraph.  The authority for the removal of a name from a promotion list rests with the President for commissioned officers (other than commissioned warrant officers), and the Secretary of the Army for warrant officers (to include commissioned warrant officers).
DISCUSSION AND CONCLUSIONS:

1.  The applicant was appointed as a second lieutenant in the SDARNG on 24 September 2008.

2.  The 19 August 2014 memorandum from The Adjutant General, SDARNG shows:

	a.  she was submitted for a unit vacancy promotion on 20 September 2012 and assigned to scroll PL 02-13.  The scroll PL 02-13 was returned from the Pentagon on 18 January 2013 and the personnel were placed on scroll PL 14-13; 

	b.  she was removed from the scroll PL 14-13 on 1 March 2013 by the DA through the G-RAP;

	c.  while waiting for the results of the special case investigation, she was considered and selected for promotion to CPT by the FY14 CPT APL Selection Board that recessed on 11 December 2013.  She was interviewed by the investigating officer in January 2014 and was subsequently cleared; and

	d.  she was promoted to CPT and given a DOR of 4 March 2014, the approval date of the FY14 CPT APL Selection Board.  

3.  Her promotion memorandum, dated 23 July 2014, promoted her to the rank of CPT with an effective date and DOR of 4 March 2014.  

4.  Through no fault of her own, her DOR to CPT was adversely affected by the length of the special case investigation and removal from scroll PL 14-13 (officially signed on 8 March 2013).  

5.  As a matter of equity, it would be appropriate to:

   a.  amend Federal Recognition Order Number 203, dated 23 July 2014, to show her DOR for promotion to CPT as 8 March 2013; and 
   
   b.  amend National Guard Bureau promotion memorandum, dated 23 July 2014.  

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 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.

8.  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.

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 State National Guard and Department of the Army records of the individual concerned be corrected by:  

	a.  amending Federal Recognition Order Number 203, dated 23 July 2014, to show her DOR for promotion to CPT as 8 March 2013; and

	b.  amending National Guard Bureau promotion memorandum, dated 23 July 2014 to show her DOR as 8 March 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 granting her all back pay and allowances.  



      ____________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)                                         AR20140015817





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ABCMR Record of Proceedings (cont)                                         AR20140015817



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