BOARD DATE:	  3 September 2015

		DOCKET NUMBER:  AR20150004558 


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 correction of his military records by changing his effective date of promotion to major and date of Federal recognition (FED REC) to 14 September 2014.

2.  The applicant states that the effective date of his promotion should be corrected to align with the promotion date of the typical unit vacancy promotion date for a promotion packet submitted through the National Guard Unit Vacancy Process.  The current effective date of his promotion is 23 December 2014 as shown on his FED REC order.  The State of California recognized his promotion to be effective 14 March 2014.  The time required for the FED REC to be approved resulted in an injustice.  His packet took 277 days for final FED REC. Typical processing time per the National Guard Bureau (NGB) is about 150 days from the date the packet arrives at NGB to the date FED REC is granted.  An erroneous personnel flag in the personnel system at the NGB caused his packet to be sent back twice to his State for correction.  The packet was submitted to his state FED REC board on 4 February 2014.  It was approved by the State on 
26 February 2014.  The packet then went through the initial NGB process from 
1 April to 1 June 2014 and then awaited an assignment to the scroll.  A few days later, the packet status changed to show it was awaiting correction by the State.  A memorandum signed by the Commander, 79th Infantry Brigade Combat Team, dated 24 January 2014, states the applicant was fully qualified to be recommended for promotion.  The brigade personnel officer checks all personnel systems to verify there are no promotion restrictions prior to the brigade commander signing such a memorandum.  After a delay of about 2 months, the NGB identified the problem as a disconnect between personnel systems which caused some flags not to be cleared.  The error was identified as an unfavorable flag in his file at NGB that was never cleared as it should have been in 2012.  A personnel system audit shows the flag was lifted on 25 October 2012 and should have been cleared at all military levels.  Once this was fixed his promotion packet was cleared by the NGB for resubmission to the FED REC.  About 
10 August 2014, his promotion packet was reflected on the NGB tracker as awaiting acceptance.  It was not accepted for processing until 25 August 2014.  On 1 September 2014, his promotion packet was again awaiting scrolling.  The errors caused a promotion delay of about 3 months.  Without this error his NGB FED REC promotion date would have been about 14 September 2014, which is about 180 days after the date of his State promotion order.  Because of this error, he is requesting an adjustment of his FED REC date to 14 September 2014.

3.  The applicant provides:

* Personnel record of his flagging, dated 25 October 2012
* Memorandum for Promotion Officer, California Army National Guard (CAARNG), dated 24 January 2014
* Orders, CAARNG, dated 20 March 2014
* Printout of FED REC actions, showing last modified on 28 March 2014
* Printout of FED REC Packet Status, dated 25 April 2014
* Printout of FED REC actions showing promotion packet awaiting assignment to scroll, dated by hand as 3 June 2014
* Printout of State Processing showing unit vacancies awaiting correction by the State, dated by hand as 4 June 2014
* Email communication within the CAARNG, dated 8 June 2014
* Email communication within the CAARNG, dated 30 July 2014
* Printout of FED REC Packet Status, dated 25 August 2014
* Special Orders Number 378 AR, NGB, dated 29 December 2014

CONSIDERATION OF EVIDENCE:

1.  The applicant’s basic date of appointment as a Reserve officer was 
19 December 2003.  He graduated from the University of Sacramento in 2004.  He was promoted to first lieutenant on 19 December 2005 and entered active duty on 2 February 2009.

2.  On 8 June 2009, the applicant was promoted to captain.  He received FED REC as such effective this same day.

3.  In processing this case, an advisory opinion was obtained from the Deputy Chief, Personnel Policy Division, NGB, dated 16 June 2015.  The opinion recommended approval of the applicant’s request to adjust his promotion effective date from 26 December to 14 September 2014 based on an inequity caused by personnel systems errors that were no fault of the applicant.  The following points of discussion were provided:

	a.  In January 2014, the applicant was recommended for a unit vacancy promotion to major.  He was found to be eligible for this promotion.

	b.  The CAARNG promoted the applicant to major with a State date of rank of 14 March 2014.  A FED REC packet was initiated on 21 March 2014.

	c.  There were several delays in the processing of the applicant’s FED REC packet due to issues in the personnel systems.  The applicant was shown as being flagged even though the flag was lifted in 2012.

	d.  Normal processing time for a FED REC packet is 90 to 180 days; however, the applicant’s packet took 277 days, a difference of 97 days from the normal processing time.

	e.  The applicant was Federally recognized as a major with an effective date of 23 December 2014.

	f.  The CAARNG concurs with the NGB advisory opinion.

4.  On 22 July 2015, a copy of the advisory opinion was sent to the applicant for his information and opportunity to respond.  No response was received.

5.  On 8 January 2015, the United States Court of Appeals for the Federal Circuit affirmed that the Military Department correction boards do not have the authority to appoint military officers.  Accordingly, only the President of the United States may appoint Regular officers above the grade of O-3 and Reserve officers above the grade of O-5 following Senate confirmation.  Only the Secretary of Defense may appoint all other officers.  These limitations are based on Congress vesting such appointment authority in the President alone, and the President’s assignment of that function to only the Secretary of Defense.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected by changing his effective date of promotion to major and his date of FED REC to 
14 September 2014 because of excessive delays that were not his fault.

2.  The available evidence clearly shows that there were several delays in the processing of the applicant’s FED REC promotion packet.  Further, it is recognized that none of these delays were in any way the fault of the applicant.

3.  Unfortunately, this Board does not have the authority to appoint military officers.  That authority rests completely with the President and with the Secretary of Defense.  Accordingly, any action taken by this Board to change the applicant’s effective date of promotion or date of FED REC, would usurp authority that rests with the Secretary of Defense.

4.  In view of the above, and notwithstanding the NGB advisory opinion, the applicant’s request should be denied.

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)                                         AR20150004558





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ABCMR Record of Proceedings (cont)                                         AR20150004558



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