BOARD DATE: 25 August 2016 DOCKET NUMBER: AR20150009634 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 BOARD DATE: 25 August 2016 DOCKET NUMBER: AR20150009634 BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends all Department of the Army records of the individual concerned be amended to show her DOR (not effective DOR) to 1LT is 25 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. BOARD DATE: 25 August 2016 DOCKET NUMBER: AR20150009634 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: a. Federal recognition for promotion to first lieutenant (1LT) in the New York Army National Guard (NYARNG), with a date of rank (DOR) of 25 November 2012; b. correction of her National Guard Bureau (NGB) Form 23B (ARNG Retirement Points History Statement) to accurately reflect her retirement points through 9 February 2013, as well as being provided a copy of the NGB Form 23B, once corrected; and c. to personally appear before the Board. 2. The applicant states, in effect: * she was commissioned as a second lieutenant (2LT) in the NYARNG on 25 May 2011 * she requested a conditional release to transfer into a U.S. Army Reserve (USAR) Troop Program Unit (TPU) due to an exceptional hardship * on 1 April 2011, she was reassigned with her active duty husband to Germany for a 3-year accompanied tour * she traveled every month at her own expense to attend training * she completed the Basic Officer Leadership Course (BOLC), annual training, and all required inactive duty trainings (IDT) * she was not flagged, nor did she have any adverse actions * she completed the time-in-grade (TIG) requirements for 1LT, and received a State promotion order effective 25 November 2012 * her voluntary release was approved on 28 January 2012 and she separated from the NYARNG on 9 February 2013 without receiving a current NGB 23B or obtaining Federal recognition for promotion to 1LT * she would have met the TIG requirement for promotion to captain (CPT) on 25 November 2014 and consideration for CPT by the promotion board, but this issue made her ineligible * the error has cost her an estimated $10,000 in lost wages 3. The applicant provides: * timeline of events * NGB Form 594-1 (Annex B, DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the U.S.)/DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) - Army National Guard Simultaneous Membership Program Agreement, dated 17 March 2008 * Orders Number 299-302, dated 26 October 2010 * Orders Number 074-401, dated 14 March 2011 * Orders Number 098-001, dated 8 April 2011 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 16 December 2011 * NGB SO Number 350 AR, dated 28 December 2011 * DA Form 1059 (Service School Academic Evaluation Report) for the Army Medical Department (AMEDD) BOLC, showing the period ending 16 December 2011 * memorandum, dated 24 February 2012, Subject: Appointment as a Reserve Commissioned Officer of the Army Under Title 10, U.S. Code 12201 and 12203 * memorandum, dated 30 September 2012 * Personnel Qualification Record – Officers/Warrant Officers, dated 9 October 2012 * Orders Number 313-1010, dated 8 November 2012 * two DA Forms 71 (Oath of Office - Military Personnel), dated 25 May 2011 and 10 February 2013, respectively * DD Form 368 (Request for Conditional Release), dated 10 February 2013 * Orders Number C-06-308292, dated 4 June 2013 * email correspondence, dated May 2012 to December 2014 * NGB Special Orders (SO) Number 73 AR, dated 13 March 2013 * DA Form 4651 (Request for Reserve Component Assignment or Attachment), dated 4 March 2013 * Orders Number 070-1034, dated 11 March 2013 * USAR Form 26-R (Pay Document - Transmittal Letter (TL)), dated 10 March 2014 * Case Management Page, taken from the applicant's Integrated Web Services (IWS), Soldier Management System (SMS), U.S. Army Human Resources (HRC) webpage, dated 18 March 2014 * Defense Finance and Accounting Service (DFAS) Form 702 (DFAS Military Leave and Earnings Statement), dated 1 April 2014 * 42nd Infantry Division Personnel Action, signed but undated * document, titled Conditional Release Packet Checklist * partially completed DD Form 368 * memorandum, dated 24 February 2012, Subject: Appointment as a Reserve Commissioned Officer of the Army Under Title 10, U.S. Code 12201 and 12203 * marriage license and certificate * birth certificate CONSIDERATION OF EVIDENCE: 1. Having had prior service in the USAR, the applicant enlisted in the NYARNG on 18 March 2008 in the rank/grade of private first class/E-3. 2. She was appointed as a Medical Service Corps Reserve commissioned officer, and executed her oaths of office in the USAR and the NYARNG on 25 May 2011. SO Number 350 AR, dated 28 December 2011, issued by NGB, shows her initial appointment with Federal recognition on 25 May 2011. Her DOR for 2LT was 25 May 2011. 3. On 6 October 2011 she was ordered to active duty for training. On 16 December 2011 she completed AMEDD BOLC and was released from active duty on that same date. 4. The applicant provides a copy of her DD Form 368, dated 28 July 2012, showing she requested a conditional release from the NYARNG contingent upon her appointment in the USAR. a. The form indicates the NYARNG approved the request on 28 January 2013. b. The applicant officially requested a conditional release through her chain of command from the NYARNG into the USAR due to financial and family hardship. Her conditional release was approved on 28 January 2013, based on her DD Form 368, signed by the Chief of Staff, Personnel. c. Section III (Notification of Enlistment/Appointment Action) reflects the applicant executed her oath of office as a commissioned officer in the USAR on 10 February 2013. 5. Orders Number 313-1010, dated 8 November 2012, issued by the NYARNG promoted her to 1LT effective 25 November 2012 (18 months from her date of appointment and oath of office). The order stated she would not be paid in the new rank/grade until Federal recognition was confirmed. 6. DA Form 71, dated 10 February 2013, affirms the applicant executed her oath of office as a USAR commissioned officer. 7. Orders Number 070-1034, dated 11 March 2013, issued by the NYARNG honorably discharged the applicant from the NYARNG effective 9 February 2013. 8. SO Number 73 AR, dated 13 March 2013, issued by the NGB, showed the applicant's Federal recognition was withdrawn based on her transfer to the USAR effective 9 February 2013. 9. Orders Number B-01-600265, dated 16 January 2016, issued by HRC, promoted her to 1LT with an effective date and DOR of 10 February 2013. 10. The NGB provided an advisory opinion, dated 29 April 2016. The NGB official stated: a. The applicant was appointed in the NYARNG based on her NGB 337 (Oaths of Office). She became eligible for promotion to 1LT on 25 November 2012, in accordance with NGB Personnel Policy Operational Memorandum Number 13-006 (Subject: Corrected Copy: Promotion from 2LT to 1LT and Warrant Officer One to Chief Warrant Officer Two (CW2)). Paragraph 5 states, "The State must consider all 2LTs for promotion and complete an NGB Form 78 (Recommendation for Promotion to 1LT/CW2) at 18 months whether or not the 2LT is qualified and recommended for promotion." b. The applicant was appointed into the USAR on 10 February 2013, based on her DA Form 71. The USAR promoted her to 1LT with an effective date and DOR of 10 February 2013, per Order Number B-01-600265, dated 16 January 2016 [sic, 15 January 2016]. c. Due to an administrative oversight involving the transfer and promotion of the applicant, NYARNG recommends the officer's DOR be corrected to 25 November 2012. d. If the applicant's request to the Board is given favorable consideration, the USAR will be required to take appropriate corrective action. The NYARNG does not have promotion authority to correct a USAR Soldier's DOR. e. The request to correct her NGB Form 23 was partially substantiated. The applicant contended she completed 5 days of IDT prior to the birth of her child in 2010. Due to a technical issue with the military pay system and the frequent turnover of staff at the unit, the applicant was unable to resolve this issue. This cost her points on her NGB Form 23. She further stated she received limited retirement points for the year because her pregnancy did not permit her to attend annual training. The 5 IDT days, had they been correctly processed, would have given her the 10 points needed to have a good year for retirement purposes. f. The applicant did not provide sufficient evidence to support her contentions with regard to the missing 5 days of IDT (or 10 retirement points). However, the documented emails discussing retirement point corrections and continual pay issues, the breakdown of drill and split unit training assembly (SUTA) dates she provides, the sworn statement, and the detailed report of her retirement points (by date and assembly for the period March 2010 through March 2011), all indicate some major discrepancies in her record. Her NGB Form 23 lists many of the dates she "split trained" differently, and there were several periods for which proper accounting was not done. An analysis of the documentation shows there is evidence to support the addition of seven retirement points for this period. g. The evidence does not support her argument of 10 missing retirement points, the detailed report shows between January 2011 and March 2011 she did not attend any training periods. She failed to provide any documentation or input for this specific period. However, the fact that numerous discrepancies are evident in her record indicates additional errors. h. Based on the evidence provided, the NGB official recommended the applicant be given the additional seven retirement points. If she has any LES for the period January 2011 to March 2011, the NYARNG Retirement Points Accounting Management noncommissioned officer has expressed her ability to administratively correct any errors substantiated by documentation. Additionally, the applicant did not receive an NGB Form 22 when she was discharged from the NYARNG and this should be provided. i. The advisory opinion was coordinated with the NGB Federal Recognition branch, the NGB Retirement section, and the NYARNG. The NYARNG concurred with the NGB's recommendation. 11. The Case Management Division of the Army Review Boards Agency sent the applicant a copy of the advisory opinion for comment. As of July 2016, she had not responded. REFERENCES: 1. Army Regulation (AR) 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers), prescribes policies and procedures for officer promotions. For promotion to 1LT the requirements include completion of BOLC and a minimum of 2 years TIG. Promotion to CPT also requires completion of BOLC and a minimum of 2 years TIG. 2. Memorandum, issued by the NGB, Subject: Reduction in TIG Requirement for Promotion of Reserve Component Officers to 1LT (NGB-ARH Policy Memo 08-035), states all ARNG officers in the rank of 2LT on the Reserve Active-Status List can be promoted to 1LT with a minimum of 18 month TIG, provided they have completed BOLC and are otherwise qualified. 3. Military Personnel (MILPER) Message 14-311, dated 18 November 2014, Subject: Fiscal Year (FY) 2015 CPT AMEDD Army Reserve Active Guard Reserve (AR-AGR), AR Non-AGR, and ARNG of the U.S. (ARNGUS) Competitive Categories, Promotion Selection Boards (PSB), announced a mandatory DA PSB for the consideration of Reserve AMEDD 1LTs for promotion to CPT during FY 2015. The promotion zone was 1 February 2012 through 31 August 2012. 4. MILPER Message 15-406, dated 18 December 2015, Subject: FY 2016 CPT AMEDD AR-AGR, AR Non-AGR, and ARNGUS Competitive Categories, PSB, announced a mandatory PSB for the consideration of Reserve AMEDD 1LTs for promotion to CPT during FY 2016. The promotion zone was 1 September 2012 through 31 August 2013. 5. AR 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes policies and procedures for the ABCMR. It states, in pertinent part, the ABCMR considers individual applications that are properly brought before it. a. Paragraph 2-5, Section II of the regulation, states the ABCMR will not consider any application if it determines an applicant has not exhausted all available administrative remedies. b. The ABCMR may, in its discretion, hold a hearing or request additional supporting documentation or opinions. It states further, in paragraph 2-11, that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. The Board considered the applicant's request for a personal appearance; however, by regulation an applicant is not entitled to a hearing before the Board. The Director of the ABCMR, or a panel of the Board, can authorize a personal appearance. In this case, the evidence of record is sufficient to render a fair and equitable decision at this time. 2. With respect to correction of NYARNG retirement points: a. As outlined in paragraph 2-5, Section II of AR 15-185, the Board will not consider any application if it determines an applicant has not exhausted all available administrative remedies. The applicant offers no proof she submitted a written request to either the NYARNG or the NGB asking for the correction of her NGB Form 23B. b. In an NGB advisory opinion, dated 29 April 2016, an official appeared to address at least a portion of the applicant's retirement point concerns. (1) The NGB official recommended at least seven retirement points be added to her NGB Form 23B. While there was an indication more points could be authorized, the applicant’s evidence was not sufficient to warrant any further adjustment. (2) The official went on to state, if the applicant had any LES for the period between January 2011 and March 2011, the NYARNG Retirement Points Accounting Manager said she could administratively correct any substantiated errors presented to her for correction. (3) Additionally, the applicant did not receive an NGB Form 22 upon her discharge from the NYARNG, and it would be appropriate for the NYARNG to prepare and provide her a copy for her records. c. Based on the foregoing, the applicant is advised to submit her request for correction, as well as the receipt of an updated NGB Form 23B, to the NYARNG and/or the NGB. 3. As to the correction of her DOR, the applicant was appointed and Federally Recognized as a commissioned officer effective 25 May 2011. a. In accordance with NGB Policy Memorandum 08-035, she was eligible for promotion to 1LT after 18 months TIG. She met the criteria of the policy memorandum by completing BOLC, and was otherwise qualified. b. The NYARNG issued orders showing a State promotion effective 25 November 2012 (18 months after her initial appointment). During this same time period, she had requested a conditional release for hardship reasons. Her conditional release was approved near the point when her promotion to 1LT would have gone forward for Federal recognition. c. The evidence indicates, because she was transferring to the USAR, no further action was taken to Federally Recognize her promotion to 1LT, and she entered the USAR as a 2LT. 4. Because she is no longer a member of the ARNG, the ARNG is not able to retroactively correct the applicant's DOR. HRC, however, can make adjustments to her DOR based upon the Board's action. 5. The effective date of promotion is established under the authority of the Secretary of Defense; this Board does not have the authority to change that date. The delay in her promotion to 1LT, however, was due to no fault on her part. Thus, and as a matter of equity, it would be appropriate to correct her DOR (not her effective DOR) to 25 November 2012. Her effective DOR will remain 10 February 2013. 6. Concerning eligibility for promotion to CPT, the MILPER Message for FY 2016 shows her current DOR (10 February 2013) and (based on the Board's action) her adjusted DOR (25 November 2012) both place her for the first time within the zone of consideration (DOR between 1 September 2012 through 31 August 2013). Therefore, her record should be considered for promotion to CPT by the FY 2016 PSB. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009634 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009634 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2