IN THE CASE OF: BOARD DATE: 14 July 2016 DOCKET NUMBER: AR20150004568 BOARD VOTE: ____X_____ ___X____ ____X____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 14 July 2016 DOCKET NUMBER: AR20150004568 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing her 1LT DOR as 9 November 2011, including but not limited to these records: * NGB memorandum, dated 11 March 2013, subject: Promotion as a Reserve Commissioned Officer of the Army * NGB Form 22 for the period ending on 1 May 2014 2. For clarification, this decision does not affect her effective date (appointment date) to 1LT which will remain 8 November 2012. _____________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. IN THE CASE OF: BOARD DATE: 14 July 2016 DOCKET NUMBER: AR20150004568 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 her date of rank (DOR) for first lieutenant (1LT)/pay grade O-2. 2. The applicant states she was appointed as a second lieutenant (2LT)/pay grade O-1 on 9 May 2010. She states that because a promotion to 1LT/O-2 is time-based, after 18 months of time in grade (TIG) as a 2LT, she should have been promoted to 1LT/O-2 on 9 November 2011. However, her 1LT DOR (8 November 2012) reflects 30 months TIG. She adds that she completed the Basic Officer Leadership Course (BOLC) on 22 August 2011. In addition, she met all of the requirements for promotion at 18 months TIG and was in good standing in the North Carolina Army National Guard (NCARNG). 3. The applicant provides copies of her – * appointment documents * BOLC training * promotion document * three separation documents * three promotion policy memoranda CONSIDERATION OF EVIDENCE: 1. The applicant had prior honorable enlisted service in the Army National Guard of the United States (ARNGUS) and NCARNG from 24 March 2009 through 8 May 2010. 2. She was appointed as a Reserve commissioned officer in the ARNGUS and NCARNG, in the rank of 2LT/O-1, effective and with a DOR of 9 May 2010, and she was assigned to the Military Intelligence (MI) branch. 3. A State of NC, Office of The Adjutant General, NCARNG, memorandum, dated 7 July 2010, subject: Receipt of Official Transcript, shows the Education Services Officer confirmed the applicant had earned a Bachelor of Arts Degree from Appalachian State University, Boone, NC, on 9 May 2010. 4. A DA Form 1059 (Service School Academic Evaluation Report) shows the applicant completed the MI BOLC on 22 August 2011. 5. A National Guard Bureau (NGB), Arlington, VA, memorandum, dated 11 March 2013, subject: Promotion as a Reserve Commissioned Officer of the Army, promoted the applicant to 1LT (MI Branch), in the ARNGUS, effective and with a DOR of 8 November 2012. 6. NGB, Washington, DC, Special Orders Number 71 AR, dated 11 March 2013, extended the applicant Federal recognition (FEDREC), in the ARNGUS, in the rank of 1LT, effective 8 November 2012. 7. While a member of the NCARNG, she entered active duty on 21 October 2012 and was released upon the completion of her required term of service on 27 October 2013. She was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) for this period of service. She held the rank/grade of 1LT/O-2. Item 12i (Record of Service – Effective Date of Pay Grade) shows the entry 8 November 2012. 8. The applicant was honorably discharged from the ARNGUS and NCARNG, on 1 May 2014, in the rank of 1LT/O-2, and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement). Item 6 of her NGB Form 22 (Report of Separation and Record of Service) shows her DOR as 8 November 2012. 9. A review of the applicant's official military personnel file failed to reveal evidence of any disciplinary actions, adverse information, or other disqualifying information. The review also failed to reveal an NGB Form 78 (Recommendation for Promotion). 10. In support of her application the applicant provides the following documents: a. Office of the Deputy Chief of Staff G-1, Washington, DC, memorandum, dated 14 January 2005, subject: Amendment to Policy – Promotion of 2LT to 1LT and Warrant Officer One (WO1) to Chief Warrant Officer Two (CW2), that shows, in pertinent part, all Army RC officers (USAR and ARNGUS) in the rank of 2LT, will be promoted by the U.S. Army Human Resources Command (HRC), Office of Promotions (RC), or the NGB, as appropriate, to 1LT when they meet the 24-month TIG requirement for promotion and completion of BOLC. b. Office of the Assistant Secretary Manpower and Reserve Affairs, Washington, DC, memorandum, dated 19 August 2008, subject: Reduction in the TIG Requirement for Promotion of RC Officers to 1LT, that established the Department of the Army policy authorizing RC 2LTs on the Reserve active-status list to be promoted with a minimum of 18 months TIG and completion of the BOLC, if otherwise qualified. The policy was effective 19 August 2008. c. Office of the Chief, Army Reserve, Washington, DC, memorandum, dated 14 December 2009, subject: Promotion of RC Officers to 1LT and CW2, that shows, in pertinent part, all Army Reserve officers in the rank of 2LT, if otherwise qualified, will be automatically promoted by the U.S. Army HRC, Office of Promotions (RC), to 1LT when they meet the 18-month TIG requirement for promotion and complete the BOLC. 11. In the processing of this case, an advisory opinion was obtained from the Deputy Chief, Personnel Policy Division, NGB, Arlington, VA. a. The advisory official recommends administrative relief. The Deputy G1, NCARNG, concurs with the advisory official's recommendation. b. The advisory official referred to NGB, ARNG-HRH, Arlington, VA, memorandum, dated 6 February 2013, subject: "Corrected Copy" Promotion from 2LT to 1LT and from WO1 to CW2 (PPOM Number 13-006), that implemented the policy requiring the consideration all 1LTs for promotion and completion of an NGB Form 78 at 18 months whether or not the 2LT is qualified and recommended for promotion. 12. On 26 May 2015, the applicant was provided a copy of the advisory opinion to allow her the opportunity to submit comments or a rebuttal. To date, the applicant has not provided a response. REFERENCES: 1. Title 10, USC, section 624 (Promotions: how made), paragraph a(2), in pertinent part, shows officers to be promoted to the grade of 1LT shall be promoted in accordance with regulations prescribed by the Secretary concerned. 2. Executive Order 13384, dated 27 July 2005 (Assignment of Functions Relating to Original Appointments as Commissioned Officers and Chief Warrant Officer Appointments in the Armed Forces), section 1, shows that the Secretary of Defense shall perform the functions of the President under the following provisions of Title 10, USC: subsection 531(a)(1) and the second sentence of subsection 571(b). 3. NGB, ARNG-HRH, Arlington, VA, memorandum, dated 6 February 2013, subject: "Corrected Copy" Promotion from 2LT to 1LT and from WO1 to CW2 (PPOM Number 13-006), shows that the purpose of the policy is, in pertinent part, to increase the readiness of officers in the ARNG by ensuring that all 2LTs are promoted on time when fully qualified for promotion. It shows the State must consider all 2LTs for promotion and complete an NGB Form 78 at 18 months TIG whether or not the 2LT is qualified and recommended for promotion. If a 2LT is not recommended for promotion at 18 months TIG, the commander must submit an NGB Form 78 with a request for separation or a request for The Adjutant General to grant an extension to 24 months. If the officer was retained, but not promoted at 18 months, the unit commander must submit another NGB Form 78 at 24 months. If the officer is found not qualified for promotion, he or she may be discharged. 4. Office of the Under Secretary of Defense, Washington, D.C., memorandum to the Assistant Secretary of the Army for Manpower and Reserve Affairs, Et. al., dated 10 February 2015, subject: Limitation on the Authority of Military Department Corrections Board stated the U.S. Court of Appeals in the Federal Circuit affirmed an important limitation of the Military Department corrections boards: they do not have authority to appoint military officers. The boards may adjust the DOR of an officer who has been properly appointed. DISCUSSION AND CONCLUSIONS: 1. The evidence of record shows the applicant was fully qualified and eligible for promotion to 1LT when she met the 18-month TIG requirement. However, for unknown reasons and through no fault of the applicant, she was denied timely promotion to 1LT and Federal recognition. 2. The advisory official recommended administrative relief to adjust her date of rank to 9 November 2011 when she completed 18 months TIG. 3. Any correction by the ABCMR must comport with law. 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. The Federal court determined that correction boards can adjust a DOR when an officer has been properly appointed. The correction boards cannot appoint an officer (adjust the effective date of promotion). 4. Therefore based on the evidence of record and applicable guidance, it would be appropriate to correct the applicant's records to show a 1LT DOR of 9 November 2011. In compliance with the Federal court, the board cannot adjust her 1LT effective date of appointment (8 November 2012). //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150004568 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150004568 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2