BOARD DATE: 31 January 2017 DOCKET NUMBER: AR20160000489 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: 31 January 2017 DOCKET NUMBER: AR20160000489 BOARD DETERMINATION/RECOMMENDATION: 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 amending his records to show his date of rank to captain as 2 April 2014 with an effective date of 2 April 2014, the date Promotion List 04-14 was signed, and paying him any associated back pay and allowances due as a result of this action. _____________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: 31 January 2017 DOCKET NUMBER: AR20160000489 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: a. correction of his date of rank (DOR) and promotion effective date (PED) to captain (CPT) from 21 July 2015 to his original scroll date and b. all back pay and allowances due as a result of this correction. 2. The applicant states: a. He requests adjustment of his DOR to CPT to his original scroll promotion date (approximately March 2014) with back pay. b. His Federal recognition packet for promotion to CPT was removed from the scroll in February 2014 due to a Congressional mandate to investigate any Army National Guard Soldier who used the Guard Recruiting Assistant Program. He was flagged because of the mandated investigation which resulted in suspension of all favorable personnel actions. c. Once his packet was reviewed by the U.S. Army Criminal Investigation Command (CID), he was immediately cleared of any wrongdoing and his promotion packet was resubmitted for Federal recognition. d. He was promoted to CPT in July 2015 after his scroll was approved. His original scroll was approved in the March 2014 time frame. e. His promotion was delayed due to a Congressional mandate, a wide scope investigation, which was no fault of his own. f. Since he was immediately cleared upon review by the CID, the delay in his promotion was unjust and his DOR should be adjusted to his initial promotion scroll date with back pay. g. He wants to point out his flag and removal from the original scroll was due to a Congressional mandate and not his fault. h. His participation in the Guard Recruiting Assistant Program required CID review of his record to ensure that nothing inappropriate had occurred. Upon CID's review he was cleared immediately. 3. The applicant indicates he provides email; however, this documentation was not attached to his application. CONSIDERATION OF EVIDENCE: 1. Having prior enlisted service in the Wisconsin Army National Guard (WIARNG), the applicant was appointed as a second lieutenant in the WIARNG on 12 May 2010. He was promoted to first lieutenant (1LT) effective 12 November 2011. 2. WIARNG Orders 325-996, dated 21 November 2013, promoted him to CPT effective 21 November 2013. 3. WIARNG Orders 050-998, dated 19 February 2015, revoked Orders 325-996, dated 21 November 2013. 4. WIARNG Orders 050-1008, dated 19 February 2015, promoted him to CPT effective 19 February 2015. 5. National Guard Bureau (NGB) Special Orders Number 161 AR, dated 24 July 2015, extended him Federal recognition for promotion to the grade of CPT effective 21 July 2015. 6. During processing of this case, an advisory opinion was obtained from the Deputy Chief, Personnel Policy Division, NGB. NGB recommends approval of the applicant's request. The opinion stated: a. The applicant was initially selected for promotion to CPT by the WIARNG board on 21 November 2013. WIARNG Orders 050-998 were also published effective the same date. b. Coordination with the ARNG Federal Recognition Branch determined the applicant was originally placed on Federal recognition scroll number 04-14, which was signed (should read recommended) on 13 January 2014. However, his name was removed from this list due to a Congressional mandate to investigate ARNG Soldiers who used the Guard Recruiting Assistance Program. c. He was subsequently promoted to the rank of CPT with an effective date of 21 July 2015. Due to no fault of his own, NGB recommends adjustment of his effective date of promotion to 2 April 2014, the day scroll number 04-14 was signed (by the Secretary of Defense). d. This opinion was coordinated with the ARNG Federal Recognition Branch. e. The WIARNG concurs with this recommendation. 7. A copy of the advisory opinion was forwarded to the applicant for comment and/or rebuttal. He did not respond. REFERENCES: 1. Army Regulation 135-155 (Army National Guard and U.S. Army Reserve – Promotion of Commissioned Officers and Warrant Officers Other than General Officers) provides policy for selecting and promoting commissioned officers of both the Army National Guard of the United States and the U.S. Army Reserve and warrant officers of the U.S. Army Reserve. This regulation also covers promotion eligibility and qualification requirements, board schedules and procedures, and procedures for processing selection board recommendations. a. Paragraph 2-2 (Service Computation) states promotion to CPT and above requires a minimum number of years of time in grade. b. Table 2-1 (Time in Grade Requirements – Commissioned Officers, Other than Commissioned Warrant Officers) shows the minimum years in the lower grade from 1LT to CPT as 2 and the maximum years in the lower grade as 5. c. Paragraph 4-18 (DOR and Effective Date of Promotion after an Involuntary Delay) provides that for commissioned officers (other than commissioned warrant officers), the DOR and effective date of promotion following an involuntary delay may be earlier than the date of the promotion memorandum. However, it cannot be earlier than the approval date of the board that selected the officer. For warrant officers (including commissioned warrant officers), the DOR and effective date may not be earlier than the date of the promotion memorandum. That is unless the officer concerned obtains correction of his or her records from the Army Board for Correction of Military Records. 2. Title 10, U.S. Code, section 14308(f), states the effective date of promotion of a Reserve commissioned officer in the Army who is extended Federal recognition in the next higher grade in the ARNG shall be the date in which such Federal recognition in that grade is so extended. 3. Authority granted to the Secretaries of the Military Departments in Secretary of Defense memorandum, dated 9 December 1982, subject: Redelegation of Authority under Executive Order 12396, to appoint officers under Title 10, U.S. Code, section 624, in the grades of O-2 and O-3 was rescinded effective 1 July 2005 based on advice from the Department of Justice that prohibits redelegation of the President's authority to appoint military officers below the Secretary of Defense. All military officer appointments under Title 10, U.S. Code, section 12203, including original appointments, in the Reserve of the Army, Reserve of the Air Force, Naval Reserve, and Marine Corps Reserve, not previously approved by 30 June 2005 shall also be submitted to the Secretary of Defense. DISCUSSION: 1. The applicant requests correction of his DOR and PED to CPT to his original scroll date of 2 April 2014 with associated back pay. He contends he should have been promoted to CPT on his original scroll date because his promotion was delayed due to a Congressional mandate, which was no fault of his own. 2. His records show he was promoted to 1LT effective 12 November 2011. He was eligible for promotion to CPT effective 12 November 2013 based on completion of 2 years of time in grade. 3. The evidence of record shows he was initially promoted to CPT by the WIARNG effective 21 November 2013. However, the promotion orders were revoked and he was subsequently promoted to CPT by the WIARNG effective 19 February 2015. 4. NGB indicates he was originally placed on Federal recognition scroll number 04-14 which was signed by the Secretary of Defense on 2 April 2014. He was removed from the 2 April 2014 promotion scroll pending an investigation determination. The investigation was closed favorably. 5. His records show he was granted Federal recognition for promotion to CPT with an effective date and DOR of 21 July 2015. 6. Army Regulation 135-155 provides that the DOR and effective date of promotion following an involuntary delay cannot be earlier than the approval date of the board that selected the officer. In this case, Promotion List 04-14 was signed by the Secretary of Defense on 2 April 2014. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000489 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000489 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2