IN THE CASE OF: BOARD DATE: 10 December 2015 DOCKET NUMBER: AR20150005375 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, that his promotion effective date of 20 May 2013 be changed to 15 November 2012. The applicant requests to personally appear before the Board. 2. The applicant states, in effect, that he was commissioned on 13 May 2011 as a second lieutenant (2LT), pay grade O-1. He was eligible to be promoted to first lieutenant (1LT), pay grade O-2 effective 15 November 2012. Due to no fault of his own, his promotion was not effective until 20 May 2013. He contends that he submitted the appropriate documentation to his unit while on active duty for training (ADT) at Ft. Rucker, Alabama. He argues that his military records unjustly reflect an incorrect date of promotion to 1LT. The error occurred because administrative personnel were unfamiliar with the proper promotion procedures for aviation lieutenants. Per Army National Guard (ARNG) Human Resources Policy Memo #12-032, the District of Columbia (DC) Human Resources Office (HRO)/G1 (Personnel Officer) failed to timely prepare a National Guard Bureau (NGB) Form 78 at 18 months of service. Despite completing BOLC and providing his school transcript demonstrating BOLC completion, the DC ARNG G1/HRO refused to promote him. Upon promotion from 2LT to 1LT, the applicant's date of rank was not back dated to the date of eligibility, it was instead dated back to the date the packet was listed on the NGB Federal Recognition list. 3. The applicant provides copies of: * NGB Form -122E, Special Orders Number 189 AR, dated 21 May 2012 * NGB Form -122E, Special Orders Number 147 AR, dated 13 June 2012 * Memorandum, NGB, subject: Promotion as a Reserve Commissioned Officer of the Army, dated 13 June 2013 * NGB Form -122E, Special Orders Number 324 AR, dated 6 December 2013 CONSIDERATION OF EVIDENCE: 1. A memorandum, subject: Appointment as a Reserve Commissioned Officer of the Army, dated 13 May 2011, indicates that the applicant accepted his appointment. 2. Special Orders Number 189 AR, dated 21 May 2012, as provided by the applicant and filed in his official military personnel file (OMPF), reflect he was appointed as a 2LT effective 14 May 2011. 3. Special Orders Number 147 AR, dated 13 June 2013, as provided by the applicant and filed in his OMPF, reflect he was promoted to 1LT effective 20 May 2013. 4. Special Orders Number 324 AR, dated 6 December 2013, as provided by the applicant and filed in his OMPF, reflect his date of rank for 1LT was changed from 20 May 2013 to 15 November 2012. 5. Executive Order 12396 (Defense Officer Personnel Management), delegated certain functions concerning the appointment, promotion, and retirement of commissioned officers of the Armed Forces, by the authority vested in the President of the United States. The Secretary of Defense is designated to perform, without approval, ratification, or other action by the President, several functions vested in the President, including the authority vested in the President by Section 624(c) of Title 10 of the U.S. Code to appoint officers in the grades of 1LT and CPT in the Army, Air Force, and Marine Corps or in the grades of lieutenant (junior grade) and lieutenant in the Navy. 6. 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 promotion effective date of 20 May 2013 should be changed to 15 November 2012. 2. The applicant requested a personal appearance before the Board; however, because there is sufficient evidence on the record to fully consider this case, a formal hearing is not warranted. 3. The available evidence shows that the applicant was promoted to 1LT effective 20 May 2013. His date of rank was changed by the ARNG to reflect 15 November 2012 (his 18 months’ time in service date), but his effective date of promotion did not change. 4. 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 Federal recognition, would usurp authority that rests with the Secretary of Defense. 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) AR20150005375 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005375 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1