IN THE CASE OF:
BOARD DATE: 28 July 2015
DOCKET NUMBER: AR20140020955
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 an adjustment of his date of rank (DOR) to lieutenant colonel (LTC) to a more appropriate date within 120 days of the original submission of his promotion packet.
2. The applicant states his name was submitted for a unit vacancy promotion (UVP) to LTC in July 2012. His promotion packet was removed from the Federal Recognition promotion scroll in January 2013 for Mandatory Department of the Army (DA) Board submission. In accordance with the DA Reserve Component Board Schedule the Army Medical Department (AMEDD) Major (MAJ)-LTC Fiscal Year (FY) 2013 UVP packet submission deadline was 8 October 2012. His packet was submitted in July 2012 with the New Mexico State Recognition Board results, dated 20 July 2012, and State Orders for promotion, dated 26 July 2012. This was well before the deadline for submission and the DA Board final cut-off. The Federal Recognition delay in processing the UVP resulted in his packet incurring a lengthy wait period which resulted in a further delay of promotion until the DA board proceedings were released.
3. The applicant provides copies of the following:
* National Guard Bureau (NGB) Form 89 (Proceedings of a Federal Recognition Examining Board (FREB))
* Orders Number 208-004
* FY 2013 DA Reserve Component Board Schedule
* Special Orders (SO) Number 137 AR
* two emails
* Suspense for Submission of Applications for the Federal Recognition of Army National Guard (ARNG) Officers in a Higher Grade by way of an UVP memorandum
CONSIDERATION OF EVIDENCE:
1. The applicant was appointed in the New Mexico ARNG (NMARNG), Medical Corps, as a second lieutenant on 17 September 1999. He was promoted to MAJ on 27 April 2007.
2. He provided copies of the following:
a. An NGB Form 89 which shows an FREB convened on 20 July 2012 and determined he was qualified for promotion to LTC and recommended that he be granted Federal Recognition in the higher grade.
b. Orders Number 208-204, dated 26 July 2012, issued by the NMARNG promoting him to LTC effective 20 July 2012. These orders state the effective date of promotion cited on the orders would be concurrent with the effective date of Federal Recognition in the ARNG when granted by the Chief, NGB.
c. A FY 2013 DA Reserve Component Board Schedule, dated 19 March 2013, which shows the following:
* Position Vacancy Packet Deadline for AMEDD MAJ-LTCs was 8 October 2012
* DA Board Convening date for AMEDD MAJ-LTCs with a DOR of 31 March 2008 or earlier was 5 February 2013
d. SO Number 137 AR, issued by the NGB, dated 30 May 2013, extending him Federal Recognition and promotion to LTC with an effective date and DOR of 14 May 2013.
e. An email, dated 5 August 2013, wherein the Chief of Staff, NMARNG, advised the ARNG, G-1, the applicant was pulled off the Federal Recognition scroll for a UVP because his Federal Recognition was not completed by the date the DA Board started. The applicant asked him if he thought the Army Board for Correction of Military Records (ABCMR) might be able to adjust his DOR to what it might have been if he had not been pulled. The applicant thought someone at the NGB told him there might be a possible way of doing that.
f. An email, dated 5 August 2013, wherein the ARNG, G-1, recommended the applicant submit his request to the ABCMR.
g. A Suspense for Submission of Applications for the Federal Recognition of ARNG Officers in a Higher Grade by way of an UVP memorandum, dated
8 January 2014, which stated:
(1) The purpose of the memorandum was to revise existing policy as it pertained to officer promotions, expanding the blackout period for Federal Recognition processing through and at all approval channels. The policy applied to applications for Federal Recognition of ARNG officers in the rank of captain (CPT) through colonel (COL).
(2) For officers in the zone of consideration of a Mandatory DA Promotion Selection Board, no application could be submitted for Federal Recognition of that officer's promotion based on the results of an FREB within the prescribed timeframes that the Mandatory DA Promotion Selection Board was scheduled to convene: within 120 days for Presidential list approvals (CPT through LTC) and within 180 days for Senate list approvals (COL). The Federal Recognition Section would not accept any such application for processing.
3. In an advisory opinion, dated 20 April 2015, the Chief, Personnel Policy Division, NGB, recommended disapproval of the applicant's request for an adjustment of his DOR to LTC. The NGB official stated:
a. The applicant believed he should have received a promotion date effective 20 July 2012, in accordance with NMARNG State Order Number 208-204 from a NMARNG State UVP board.
b. The applicant submitted a UVP packet in July 2012. The FY 2013 DA Reserve Component Board Schedule as of 19 March 2013 shows the UVP deadline for submission was 8 October 2012. Effective 20 July 2012, the applicant received NMARNG Order Number 208-204, dated 26 July 2012, from the State UVP for promotion to LTC.
c. Although the applicant submitted his packet 90 days out it was not processed in time to meet the requirements for UVP processing of being scrolled, signed, and approved by the Secretary of Defense; therefore the packet was pulled from the UVP process. There were also delays in the Federal Recognition proceedings and results causing the UVP to fall into the DA Board window which sent the applicant before his required FY 2013 DA Board.
d. Once the applicant entered the DA Board window he was no longer eligible for the UVP promotion. His previous UVP State board dates are not eligible for any type of promotion consideration until the signed Presidential List is approved. Federal Recognition SO Number 137 AR, dated 30 May 2013, with an effective date of 14 May 2013 stands.
e. The case recommendation was coordinated and reviewed with the NGB DA Boards Section on 12 March 2015 and with the NGB Federal Recognition Section on 20 March 2015.
4. The advisory opinion was provided to the applicant on 15 May 2015 for acknowledgement/rebuttal. He did not respond.
5. Title 10, U.S. Code, section 14308(f) states the effective date of a promotion of a Reserve officer of the Army who is extended Federal Recognition in the next higher grade in the ARNG shall be the date on which such Federal Recognition in that grade is so extended.
6. National Guard Regulation 600-100, chapter 8, establishes the policies and procedures for promotion of officers in the ARNG. The regulation states that until Federal Recognition in the new rank is extended by the NGB, the individual cannot be promoted and paid in the higher rank. The NGB has advised in similar cases such as this that recommendations for promotion must be processed through NGB staff to obtain approval of the promotion by the President.
DISCUSSION AND CONCLUSIONS:
1. The evidence shows a FREB approved the applicant's UVP to LTC on 20 July 2012. The NMARNG issued orders promoting him to LTC on 26 July 2012 pending extension of Federal Recognition. Prior to approval of his UVP, his packet was pulled because the UVP fell into the DA Board window of his zone required of the FY 2013 DA Board. He was selected for promotion to LTC by the DA Board and extended Federal Recognition in the higher grade with an effective date and DOR of 14 May 2013.
2. The NGB has opined that once a Soldier entered the DA Board window he/she is no longer eligible for a UVP. Therefore, he was not eligible for the UVP since it had not been scrolled, signed, and approved by the Secretary of Defense prior to the start and approval dates of the DA Board results.
3. In view of the foregoing, he should not be granted the requested relief.
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.
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