BOARD DATE:	 23 June 2015 

		DOCKET NUMBER:  AR20140017509 


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, his date of rank (DOR) and effective date of promotion to the rank/pay grade of captain (CPT)/O-3 be adjusted from 28 January 2015 to 14 December 2012 to coincide with his appointment as a chaplain.  He further requests retroactive payment of all pay and entitlements as a result of this correction.

2.  The applicant states that on 5 February 2013, an initial email was generated to the Joint Force Headquarters of the Florida Army National Guard (FLARNG) and Full Time Support (FTS) Chaplains reporting that there were chaplains who were eligible for promotion.  In December 2012, the applicant was accessed as a chaplain.  The State of Florida assumed that upon accessioning he was then promoted to CPT, but he was not.  He was wearing the rank of CPT on his uniform for a while and had to remove it.  In addition to causing the morale of himself and his unit to dissipate, this mistake has brought financial hardship for him and his family.  Month after month, his Soldiers have consistently asked why he has not been promoted and this has caused him shame and embarrassment.

3.  The applicant provides:

* a self-authored statement
* a 3-page extract of email correspondence




CONSIDERATION OF EVIDENCE:

1.  On 8 April 2009, a Federal Recognition Board (FRB) was held by the FLARNG to determine if the applicant was qualified to be awarded Federal recognition as a Chaplain Candidate in the rank/pay grade of second lieutenant (2LT)/O-1.  The proceedings indicated the applicant was satisfactory in his physical qualifications, moral character, and general qualifications.  The FRB also noted the applicant was physically, morally, generally, and professionally qualified for appointment and recommended that he be granted Federal recognition.

2.  National Guard Bureau (NGB) Special Orders Number 144 AR, dated 10 June 2009, show the applicant was extended Federal recognition in conjunction with initial appoint as a 2LT in the Staff Specialist Branch effective 8 April 2009.

3.  Florida National Guard Orders 105-050, dated 15 April 2009, show the applicant was appointed in the ARNG in the rank/pay grade of 2LT/O-1 in the Staff Specialist Branch effective 8 April 2009.  The applicant executed the appropriate Oaths of Office on 8 April 2009.

4.  He attended and successfully completed the Chaplain Basic Officer Leader Course from 31 May to 28 August 2009.  

5.  On 20 October 2010, the NGB published Special Orders Number 233 AR extending the applicant Federal recognition as a Staff Specialist in the rank of 1LT, with a DOR and effective date of 8 October 2010 as a result of promotion.

6.  On 20 October 2010, the NGB issued him a memorandum advising him of his promotion to first lieutenant (1LT)/O-2 with a DOR and effective date of 8 October 2010.  This document shows his basic branch as Staff Specialist.

7.  On 7 November 2012, the applicant executed 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) which shows he applied for Federal recognition and appointment as a Reserve Officer of the Army in the ARNG as a 1LT/O-2 in the Chaplain basic branch.  This document was endorsed by the State Chaplain and forwarded to the Florida State Adjutant General for final endorsement.

8.  On 14 December 2012, an FRB was held by the FLARNG to determine if the applicant was qualified to be awarded Federal recognition as a chaplain in the rank/pay grade of 1LT/O-2.  The FRB document shows the applicant was being appointed in an authorized position at the higher grade.  The FRB also noted the applicant was physically, morally, generally, and professionally qualified for appointment and recommended that he be granted Federal recognition.

9.  Florida National Guard Orders 363-029, dated 28 December 2012, show the applicant was appointed in the ARNG in the rank/pay grade of 1LT/O-2 in the Chaplain Branch effective 14 December 2012.  The applicant executed the appropriate Oaths of Office, dated 14 December 2012.

10.  On 25 March 2013, the NGB published Special Orders Number 86 AR extending the applicant Federal recognition as a chaplain, in the rank of 1LT, with an effective date of 14 December 2012 as a result of initial appointment as a chaplain.

11.  On 25 March 2013, the NGB issued him a memorandum appointing him as a Reserve Commissioned Officer of the United States, Chaplain Corps, in the rank of 1LT/O-2, effective 14 December 2012.

12.  On 21 October 2014, the Florida National Guard published Orders 294-021 promoting the applicant to CPT/O-3 in the Chaplain Branch, effective 17 October 2014.  The DOR portion of these orders contains the entry "Not applicable."

13.  Although the applicant's record is void of any indication of being considered by an FRB for Federal recognition in the rank/pay grade of CPT/O-3, on 6 February 2015, the NGB published Special Orders Number 28, which show the applicant was promoted to CPT/O-3 with a DOR and promotion effective date of 28 January 2015.

14.   An advisory opinion from the NGB recommends granting the applicant's request to adjust the DOR and effective date of his promotion from 1LT to CPT to 14 December 2012.  The Chief, Personnel Policy Division, provides the following discussion:

	a.  The applicant states that in December 2012, he accessed into the FLARNG as a chaplain.  He further contends that upon appointment, the FLARNG should have either accessed him in the rank of CPT or promoted him shortly thereafter.

	b.  Upon coordination with the FLARNG and the FLARNG office of Chief Chaplains, it was determined that the officer did not appear before a Department of the Army Selection Board.  The FLARNG also states (enclosed email) that an administrative oversight occurred and the officer should have been promoted to CPT upon reappointment from the Staff Specialist Branch to the Chaplain Branch.
	c.  National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions), paragraph 8-8(a) (Minimum years of promotion service years in lower grade), shows that the minimum time in grade for promotion to the rank of CPT is two years.

	d.  The officer met all of the qualifications to be promoted in a timely manner (time in grade, Officer Basic Course, Army Physical Fitness Test, Federal recognition as a chaplain) and should not be penalized due to an administrative error which was no fault of his own.

	e.  The FLARNG and the ARNG Federal Recognition section concur with this recommendation.

15.  On 6 February 2015, the advisory opinion was provided to the applicant.  In a response, dated 9 February 2015, the applicant concurred with the advisory opinion.

16.  Title 10, U.S. Code (USC), section 14308(b)(4), governs promotions for officers who are fully qualified.  Promotions under this provision are accomplished under Title 10, USC, section 12203, which provides that appointments of Reserve officers in the grades of lieutenant colonel and below shall be made by the President.  This authority has been delegated to the Secretary of Defense via Executive Order 13358, dated 18 September 2004.  

17.  Title 10, USC, section 741(d)(2), provides the DOR of an officer who holds a grade as the result of a promotion is the date of his appointment in that grade.  The action by the Secretary of Defense to appoint the applicant as a CPT established his effective DOR and effective date of his promotion.

18.  Army Regulation 135-155 (Army National Guard and Army Reserve Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for the promotion of Reserve Component officers.  Table 2-1 provides the time in grade requirements for promotion of commissioned officers.  It states that for promotion from 1LT to CPT, the minimum number of years in the lower grade is 2 years and the maximum number of years in the lower grade is 5 years.

19.  A Department of the Army, Office of the Assistant Secretary of the Army for Manpower and Reserve Affairs, memorandum, dated 4 April 2006, eliminated the mandatory CPT promotion selection board for Reserve of the Army Chaplain Corps officers in the Army Reserve, the Active Guard Reserve, and ARNG competitive categories.  The Office of the Chief of Chaplains will begin reviewing Reserve Component Chaplain Corps officers for promotion to CPT up to three times a year.  The approval authority for promotion to CPT remains the Secretary of Defense.

20.  National Guard Regulation 600-100 prescribes policies and procedures governing appointment, assignment, temporary Federal recognition, Federal recognition, reassignment, and other personnel issues related to commissioned officers of the ARNG.  It states commissioned officers of the ARNG are appointed by the several States.  These appointments may be Federally recognized by the Chief, NGB, under such regulations as the Secretary of the Army may prescribe and under the provisions of this regulation.  

21.  Chapter 8 of National Guard Regulation 600-100 states that the promotion of officers in the ARNG is a function of the State, and as in original appointments, a commissioned officer promoted by State authorities has a State status in the higher grade under which to function.  However, to be extended Federal recognition in the higher grade, the officer must have satisfied the promotion requirements.  It also states a commissioned officer must complete the required minimum years of promotion service prior to being considered for promotion and Federal recognition in the higher grade.  Promotion from 1LT to CPT requires a minimum of 2 years time in grade.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to have his DOR and effective date of promotion to the rank/grade of CPT/O-3 adjusted from 28 January 2015 to 14 December 2012, with back pay and allowances has been carefully examined.

2.  Evidence shows:

	a.  The applicant was promoted to 1LT/O-2 with a DOR and effective date of promotion of 8 October 2010.

	b.  On 7 November 2012, the applicant applied for Federal recognition and appointment as a Reserve Officer of the Army in the ARNG as a chaplain in the rank/pay grade of 1LT/O-2.  This document was endorsed by the State Chaplain and forwarded to the Florida State Adjutant General for final endorsement. 

   c.  On 14 December 2012, an FRB was held by the FLARNG which determined he was qualified for appointment as a chaplain in the rank/pay grade of 1LT/O-2 and recommended that he be granted Federal recognition.

	d.  The NGB published Special Orders Number 86 AR extending the applicant Federal recognition as a chaplain, in the rank/pay grade of 1LT/O-2, with an effective date of 14 December 2012 as a result of initial appointment as a chaplain.  The NGB also issued him a memorandum appointing him as a Reserve Commissioned Officer of the United States, Chaplain Corps, in the rank of 1LT/O-2, effective 14 December 2012.

	e.  The Florida National Guard published orders appointing him as a chaplain in the ARNG in the rank/pay grade of 1LT/O-2 in the Chaplain Branch effective 14 December 2012.  The applicant executed the appropriate Oaths of Office, dated 14 December 2012.

	f.  On 21 October 2014, the Florida National Guard published Orders 294-021 promoting the applicant to CPT/O-3 in the Chaplain Branch, effective 17 October 2014.  The DOR portion of these orders contains the entry "Not applicable."

3.  Although policy states that for promotion from 1LT to CPT the minimum number of years in the lower grade is 2 years, it also states that the maximum number of years in the lower grade is 5 years and achieving minimum eligibility does not automatically guarantee promotion.  Additionally, the applicant's record is void of any indication of him being considered by an FRB for promotion and Federal recognition in the rank/pay grade of CPT/O-3.

4.  On 6 February 2015, the NGB published Special Orders Number 28 which show the applicant was promoted to CPT/O-3 with a DOR and promotion effective date of 28 January 2015.

5.  Title 10, U.S. Code, 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.

6.  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.  Consequently, any correction to his effective date of promotion would effectively amend the Secretary of Defense's action and goes beyond the authority of this Board.

7.  Notwithstanding the advisory opinion, the applicant's effective date of promotion can only be changed by amending the date Federal recognition was granted by the Secretary of Defense.  The ABCMR has no jurisdiction over Department of Defense records and therefore cannot make this type of correction.

8.  However, when a valid appointment has been accomplished, the Board can 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 in this case by correcting his record to show his DOR (but not the effective date of promotion) for CPT is 14 December 2012.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  __X______  __X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Army National Guard and Department of the Army records of the individual concerned be corrected to show the applicant was promoted to CPT/O-3 with a promotion effective date of 28 January 2015 and a DOR of 14 December 2012.

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 correction of his effective date of promotion to the rank/grade of CPT/O-3 to 14 December 2012 with 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)                                         AR20140017509



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140017509



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1