BOARD DATE: 6 November 2012 DOCKET NUMBER: AR20120000045 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 date of rank (DOR) for captain be adjusted from 3 March 2011 to 26 May 2010 * his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 2 May 2011 be corrected to show the rank of captain * back pay and allowances as a result of the above corrections 2. The applicant states: a. His DOR should be adjusted due to the State G-1's failure to submit his Federal Recognition 90 days prior to the Army Promotion List (APL) mandatory promotion board. b. After having prior enlisted service, he applied for an appointment in the Army National Guard (ARNG) as a Judge Advocate (JA). His application was approved and on 1 July 2008 he was appointed a first lieutenant with 1 year of time in grade. He was sent to the Judge Advocate Officer Basic Course (JAOBC) in July 2009 and he graduated from the course in September 2009. He had been serving in a captain position since July 2008 as a JA officer. Upon return from JAOBC he was deployed to Kosovo in April 2010 for a 12-month tour as the Legal Assistance/Claims Judge Advocate General (JAG) and Foreign Claims Commissioner. c. During the initial months of the pre-mobilization process, he was given the opportunity to apply for a position vacancy board for promotion to captain and he did not wait for the mandatory APL Board since he met the requirements (more than 24 months time in grade, more than 24 months time in service, graduated from JAOBC, and he had held a higher-grade position (captain) in a federally recognized unit for the past 2 years). d. He submitted an application for a position vacancy board with the Puerto Rico Army National Guard (PRARNG). On 26 March 2010, he was selected for promotion to captain with an effective date of 26 May 2010. e. On 21 June 2010, an electronic message was sent from the National Guard Bureau (NGB) regarding the Fiscal Year (FY) 2011 Captain (F) APL Military Personnel Message 10-132 to the PRARNG stating the position vacancy packet deadline. f. Upon confirmation of his state promotion orders, he requested his packet be submitted to the Federal Recognition Board. On 16 July 2010, 50 days after the board, he again requested the status of his packet, with no reply. g. Although holding a permanent captain position prior to and during the mobilization, his Federal Recognition packet was submitted incorrectly. He points out his packet was submitted with the deployed unit identification code (UIC) instead of the correct unit UIC. h. A position vacancy promotion board selected him for promotion to captain on 26 March 2010 with plenty of time to submit the packet for Federal Recognition. He was a mobilized officer who had not delayed or declined promotion and he held a captain position in both his home unit and the mobilized unit. His promotion packet was submitted and removed twice from the Federal Recognition process at NGB due to inexplicable mistakes and the NGB could not process his promotion on time. After the 8-month delay he was notified he would be considered for promotion by the FY 2011 Captain APL Board to be convened in November 2010. i. On 26 June 2010, he received a message indicating he was to be considered by the FY 2011 Captain Mandatory APL Board for promotion. He immediately contacted Puerto Rico to inquire about the inconvenience of being promoted under the vacancy promotion board and his packet not being submitted for Federal Recognition before the 90-day window. He was concerned that now there was the possibility of the APL passing him over, that he could possibly lose the opportunity of being selected by the APL and if such event occurred, then it would be impossible for him to be promoted by the vacancy board in accordance with law and regulation. He had only 5 days to review his file and submit it to the board, because he was notified 1 week before the closing date. The State could not submit his packet for Federal Recognition. j. On 30 August 2010, he sent an electronic message to PRARNG with the concerns of the unattended position vacancy promotion and the upcoming APL Board. k. On 11 September 2010, he filed a detailed case with the Inspector General in Puerto Rico expressing his concerns about the promotion. l. In October 2010 it was confirmed an error was made by the PRARNG. In spite of his repeated requests and inquires about why his promotion his packet was never submitted correctly or on time, he was unable to be promoted under a position vacancy. Emails indicate there was an issue with processing his Federal Recognition that was no fault of his own. m. On 2 November 2010, the FY 2011 Captain APL Board convened and recommended him for promotion to captain on a published list, dated 3 March 2011. n. Based on law, regulation, and NGB policy, his PRARNG unit should have proceeded with the promotion process when he was selected for promotion by the vacancy promotion board. o. During his deployment he was a material witness to fraternization acts and inappropriate behavior committed by a high ranking officer in the staff with a female noncommissioned officer under his command, for which he is suffering the consequences. After his intervention with the investigation, during and after the deployment, he was the subject of harassment and reprisal. His promotion was held excessively, he was unjustly and illegally investigated, and he was denied awards. p. On 19 July 2011, orders were published revoking his State promotion to captain. In August 2011, with the full time JAG and detailed Inspector General as witness, he was "required" to sign a voluntary delay of acceptance to his promotion in order to be promoted and to justify why he had not been promoted in a timely manner. q. On 20 September 2011, he was awarded permanent Federal Recognition for promotion to captain effective 3 March 2011. r. He understands that a unit vacancy correctly promoted him in March 2010, that the delay was recognized and accepted, and that mistakes were made. The time it took to submit his packet for Federal Recognition was unjustified, and clearly either a voluntary error or just gross negligence. Other officers got promoted and their packets were submitted in a timely manner. This delay cost him the opportunity to be promoted to captain while on active duty and, as a result, he received a DD Form 214 with the rank of first lieutenant. Also, not only did he lose a significant amount of pay and entitlements, his DOR is dated one year and some months after his expected DOR. The NGB should have extended him Federal Recognition to captain a few months after his position vacancy promotion. s. He has also been the subject of ridicule and embarrassment, being the last of his JAOBC to be promoted to captain, 2 years after graduation without any explanation. t. He cites the following regulations and law: (1) Under the provisions of Title 10, U.S. Code, sections 14101(a)(3) and 14308(b), the Secretary of the Army has the authority to authorize that in lieu of a mandatory promotion board that JAGC officers be promoted to captain if they are determined to be eligible, fully qualified, and needed at the higher grade to accomplish mission objectives. Use of the fully qualified certification process is justified because all Army Reserve JAG Corps positions are graded at captain and higher, and Active Duty List JAG Corps officers have been promoted to captain using the fully qualified certification process since 2003. The applicant acknowledges that this policy does not affect National Guard JAG Corps officers. (2) Title 10, U.S. Code, section 14303 (eligibility for consideration for promotion: minimum years of service in grade). (3) Title 10, U.S. Code, section 14315 (position vacancy promotions: Army and Air Force officer). (4) Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army). (5) Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officer other than General Officers). (6) National Guard Regulation 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions). 3. The applicant provides 48 enclosures outlined on pages 10 and 11 of his statement. CONSIDERATION OF EVIDENCE: 1. Having prior enlisted service in the ARNG, on 1 July 2008, the applicant was appointed in the ARNG, JA Corps, as a first lieutenant with a DOR of 1 July 2007. 2. He completed JAOBC on 30 September 2009. 3. He was ordered to active duty on 20 April 2010 in support of Operation Enduring Freedom. 4. PRARNG orders, dated 23 July 2010, show he was promoted to captain effective 26 May 2010. These orders state he will not be paid as promoted until Federal Recognition is issued. There orders were revoked on 19 July 2011. 5. He served in Kosovo from 5 July 2010 to 31 March 2011. He was released from active duty on 2 May 2011. His DD Form 214 for the period ending 2 May 2011 shows in: * item 4a (Grade, Rate or Rank) the entry "1LT" (First Lieutenant) * item 4b (Pay Grade) the entry "O02" * item 12i (Effective Date of Pay Grade) the entry "2007 06 01" (1 June 2007) 6. PRARNG orders, dated 30 August 2011, show he was promoted to captain effective 3 March 2011. 7. NGB, Special Orders Number 229 AR, dated 20 September 2011, show he was extended Federal recognition for promotion to captain, effective 3 March 2011. 8. National Guard Regulation 600-100 prescribes policies and procedures governing, in part, the appointment, Federal Recognition, and separation of commissioned officers of the ARNG. Paragraph 8-2 states the effective date of promotion for an ARNG commissioned officer who is promoted in the State is the date the Chief, NGB extends Federal Recognition unless otherwise provided by law. An officer's DOR as a reserve of the Army will be determined by his or her duty status, type of selection board which selected the officer, and delay status (if applicable), unless otherwise provided by law. Additionally, paragraph 8-6c states promotion will be accomplished only when the officer is assigned to an appropriate Modified Table of Organization or Table of Distribution and Allowances and Equipment vacancy in which he or she has been recommended for promotion until Federal Recognition orders are published. 9. Table 2-1 of Army Regulation 135-155 states that the minimum time in grade as a first lieutenant for promotion to captain is 2 years and the maximum time in grade is 5 years. DISCUSSION AND CONCLUSIONS: 1. The applicant requests his DOR for captain be adjusted to 26 May 2010, his DD Form 214 corrected to show the rank of captain, and back pay and allowances. 2. Evidence of record shows he was appointed as a first lieutenant in the ARNG, JA Corps, on 1 July 2008 with a DOR of 1 July 2007. 3. A position vacancy board selected him for promotion to captain effective 26 March 2010. 4. As part of the promotion process he had to be granted Federal Recognition in the grade of captain. By all accounts, it appears he qualified for a position vacancy promotion and he submitted his package in a timely manner. 5. The applicant pointed out the UIC code in his Federal Recognition package was incorrect. Emails indicate there was an issue with processing his Federal Recognition that was no fault of his own. He attempted to remedy this situation from his deployed location. Because of the deployment he had to rely on individuals at his home station to assist. Individuals in his chain of command confirmed an error existed and attempted to remedy the situation on behalf of the applicant. 6. He was granted Federal Recognition for promotion to captain effective 3 March 2011. 7. It appears an issue existed in the Federal Recognition package and he was unable to personally work to resolve the situation due to his deployment. Based on the foregoing, it would be equitable to correct his records to show his effective date and DOR for promotion to captain as 26 May 2010. It would also be equitable to show he was granted Federal recognition for promotion to captain, effective 26 May 2010. 8. In addition, items 4a, 4b, and 12i of his DD Form 214 for the period ending 2 May 2011 should be corrected to show his rank as captain, pay grade as O03, and effective date of pay grade as 26 May 2010. BOARD VOTE: ___X_____ ___X_____ ___X__ GRANT FULL RELIEF ________ ________ ________ 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 relief. As a result, the Board recommends that the State Army National Guard records and the Department of the Army records of the individual concerned be corrected by: a. amending Special Orders Number 229 AR, dated 20 September 2011, to show he was granted Federal recognition effective 26 May 2010 for the purpose of promotion to captain; b. deleting the entry in item 4a of his DD Form 214 for the period ending 2 May 2011 and replacing it with the entry "CPT"; c. deleting the entry in item 4b of this DD Form 214 and replacing it with the entry "O03"; and d. deleting the entry in item 12i of this DD Form 214 and replacing it with the entry "2010 05 26." 2. The Board also recommends that the applicant be paid all back pay and allowances due as a result of this correction. _______ _ 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) AR20120000045 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120000045 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1