BOARD DATE: 13 June 2017 DOCKET NUMBER: AR20160002436 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ____x____ ___x_____ ____x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 13 June 2017 DOCKET NUMBER: AR20160002436 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial 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 showing the applicant's date of rank to captain as 14 May 2015. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any change affecting the applicant's effective date of rank to captain or authorizing arrears pay. _____________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: 13 June 2017 DOCKET NUMBER: AR20160002436 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, correction of her military records by showing she was promoted to captain (CPT), pay grade O-3, in the Utah Army National Guard (UTARNG) effective 15 January 2014 with the same date of rank and receipt of all back pay due as a result of this correction. 2. The applicant states she was boarded for reinstatement as a first lieutenant (1LT) in the UTARNG on 10 July 2013 after a 6-year break in service. Her completed officer packet was hand-delivered from her recruiter to the Officer Branch. She was eligible for promotion on 15 January 2014 and was recommended for promotion to captain. However, when she attempted to compile the documents needed for her promotion, many items were missing in the online database, to include her college transcript. As she discovered documents were missing, it became evident that she would not be able to turn in her captain promotion packet on time. a. She gathered the required documents and, with help from a unit noncommissioned officer (NCO), she discovered she had not yet received her Federal recognition to 1LT. Her initial appointment packet was not in the electronic system. While reviewing her case, the NCO also discovered her 1LT date of rank was wrong. The NCO filled out a Personnel Action form, specifying that she was promoted to 1LT on 7 September 2005; separated on 2 March 2007; and her time in grade was 1 year, 5 months, and 26 days. She was then appointed on 10 July 2013 and her adjusted date of rank was 15 January 2012. b. On 14 May 2014, the NCO contacted the Officer Branch. An investigation disclosed her officer packet, which was hand-delivered on 10 July 2013, was never loaded into the electronic system. The packet was found in an office. The packet was then upload into the Personnel Office (G-1) Portal E-Tracker. She also requested assistance from the Inspector General (IG). c. The IG reviewed her request and determined the National Guard Bureau (NGB) IG Office was not able to assist her in remedying the problems that had occurred concerning her accession process and promotion packet. The IG determined the applicant had exhausted all options and advised her to complete an application to the Army Board for Correction of Military Records (ABCMR). d. She was promoted and received her Federal recognition to captain on 28 December 2015, almost 2 years after the date she was first eligible. Each of the parties referred to above acknowledges this error was made through no fault of her own. She requests an adjustment to her captain time in grade and payment of back pay. 3. The applicant provides: * NGB Form 22A (Correction to NGB Form 22), dated 18 June 2013 * NGB 62E (Application for Federal Recognition as an ARNG Officer or Warrant Officer and Appointment as a Reserve Commissioned Officer or Warrant Officer of the Army in the ARNG of the United States), dated 3 July 2013 * NGB Form 89 (Proceedings of a Federal Recognition Examining Board), dated 10 July 2013 * DA Form 71 (Oath of Office – Military Personnel), dated 10 July 2013 * NGB Form 337 (Oaths of Office), dated 10 July 2013 * Orders 211-004, Joint Forces Headquarters, UTARNG, dated 30 July 2013 * Memorandum for Promotion, UTARNG, dated 22 April 2014 * DA Form 4187 (Personnel Action), dated 13 May 2014 * DA Form 2823 (Sworn Statement), dated 24 February 2015 * DA Form 2823 (Sworn Statement), dated 5 March 2015 * DA Form 2823 (Sworn Statement), dated 11 March 2015 * Memorandum for Record, UTARNG, IG, dated 16 March 2015 CONSIDERATION OF EVIDENCE: 1. With prior active Federal service, the applicant was appointed as a Reserve commissioned officer on 7 September 2003. She entered the UTARNG on 2 November 2005 and separated on 2 March 2007. She was issued an NGB Form 22 (Report of Separation and Record of Service), showing her rank as 1LT/pay grade O-2 and her date of rank as 7 September 2005. 2. Orders 211-004, UTARNG, dated 30 July 2013, appointed the applicant as a second lieutenant (2LT) in the ARNG with prior service effective 10 July 2013. She executed two oaths of office the same day as a 1LT. Her NGB Form 337 and DA Form 71 were witnessed by representatives of the UTARNG. 3. A UTARNG memorandum for promotion, initiated on 22 April 2014, recommended the applicant for promotion to CPT/pay grade O-3. This form was electronically signed by her commanding officer on 23 March 2015. 4. A DA Form 4187, dated 13 May 2014, requested correction to the applicant's records to show: * promoted to 1LT effective 7 September 2005 * separated on 2 March 2007 * time in grade 1 year, 5 months, and 26 days * reappointed as a 1LT effective 10 July 2013 * adjusted date of rank to 15 January 2012 5. A memorandum for record, dated 16 March 2015, signed by the Deputy IG, UTARNG, states the applicant requested assistance with remedying problems concerning her officer accession process and promotion. The IG was not able to assist her with these issues and recommended she submit an application to the ABCMR. 6. Orders 156-013, UTARNG, dated 5 June 2015, announced the applicant's promotion to CPT/pay grade O-3 with an effective date and date of rank of 3 June 2015. The additional instructions stated the applicant would not be paid in the promotable grade until Federal recognition was confirmed. 7. By memorandum, NGB announced the applicant?s promotion to CPT/pay grade O-3, with an effective date and date of rank of 28 December 2015. 8. Special Orders Number 14, issued by NGB, dated 13 January 2016, announced the applicant's extension of Federal recognition in the ARNG as a member of 97th Troop Command with an effective date and date of rank of 28 December 2015. 9. A DD Form 368 (Request for Conditional Release), signed by the applicant on 6 March 2016, indicates she requested to be released from the UTARNG to request entrance into another component of the military. Her request was approved on 22 March 2016 and signed by the certifying official on 24 March 2016. 10. Orders 088-030, UTARNG, dated 28 March 2016, announced the applicant's honorable separation from the ARNG effective 1 April 2016. It further announced her transfer to the 201st Public Affairs Detachment, a U.S. Army Reserve (USAR) troop program unit. 11. Special Orders Number 60, issued by NGB, dated 30 March 2016, announced the applicant?s change of her federally recognized status in the ARNG as a member of 97th Troop Command by showing she was transferred to the USAR effective 1 April 2016. 12. An NGB Form 22, effective 1 April 2016, shows the applicant was honorably separated from the UTARNG and transferred to the 201st Public Affairs Detachment, USAR. Her rank is shown as CPT/pay grade O-3 with a date of rank of 28 December 2015. 13. The applicant provided sworn statements in support of her application. a. On 24 February 2015, an NCO with Joint Forces Headquarters, UTARNG, stated the applicant?s scroll as of February 2015 continued to be held up due to issues between NGB and the U.S. Army Human Resources Command (HRC). There was no projected publishing date known at the time, which was not the fault of the applicant. In her opinion, this administrative delay affected the applicant?s military career negatively, including promotion, pay, and career progression. b. On 5 March 2015, an NCO with the State Recruiting and Retention Command stated he was the applicant?s recruiter. He accompanied her as she was boarded for reinstatement as a 1LT into the UTARNG. He also stated he provided a completed officer packet at the time to the officer in charge. c. On 11 March 2015, an NCO with 97th Troop Command stated the applicant asked for assistance concerning her promotion to CPT/pay grade O-3. While putting her documents together, it was determined she had not received Federal recognition for her initial appointment (reinstatement) in the UTARNG. A search of files showed her appointment packet had not been received at HRC. When the packet was located, administrative errors were found that needed to be corrected. These errors were due to clerical mistakes that should not be held against the applicant, who was eligible for promotion to CPT effective 15 January 2014. 14. In the processing of this case, a request for an advisory opinion was sent to NGB on 24 February 2016. After coordination between NGB and the UTARNG, the following information and recommendations were submitted: a. On 29 February 2016, the Officer Branch Chief, UTARNG, stated the applicant was sworn in on 10 July 2013, but her request for initial appointment (reinstatement) was not sent to NGB until 9 months later. The applicant was eligible for promotion on 16 January 2014; however, eligibility does not mean selection. There is no record of a promotion packet being submitted prior to May 2015. (1) An inquiry in May 2014 concerning her initial Federal recognition suggests the applicant was working on her promotion packet. The letter of recommendation, dated 22 April 2014, was not signed until 23 March 2015, based on the electronic signature date stamp, which is nearly 11 months after the date at the top of the letter. (2) The applicant was boarded on 3 June 2015 and selected for promotion to CPT 1 month after receiving her Federal recognition for her initial appointment (reinstatement). She received Federal recognition to CPT on 13 January 2016 with a date of rank 28 December 2015. The applicant could not have been boarded prior to 13 May 2015 due to not having Federal recognition for her initial appointment (reinstatement). (3) It would be prudent and in the best interests of the ARNG and the applicant to adjust her date of rank to 28 March 2014, 9 months prior to her Federal recognition to CPT. This returns to her the 9-month delay in submitting her packet to NGB for her initial Federal recognition. b. On 14 April 2016, the Deputy Chief, Personnel Policy Division, NGB, stated the applicant was sworn into the UTARNG on 10 July 2013 based on her NGB Form 337; UTARNG appointment order, dated 30 July 2013; and an NGB Form 89. Unfortunately, her request for initial appointment (reinstatement) was not sent to NGB until 14 May 2014. The applicant received her initial (reinstatement) Federal recognition as a 1LT on 13 May 2015 with an effective date and date of rank of 10 July 2013. (1) She was eligible for promotion to CPT on 16 January 2014 in accordance with Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), Table 2-1. Eligibility does not entitle selection. A memorandum to the Adjutant General of Utah, dated 22 April 2014, recommended her promotion. It was signed by her commander on 23 March 2015 based on his digital signature time stamp. (2) Recommend partial approval by adjusting her date of rank for CPT to 14 May 2015 based on the fact that the UTARNG did not receive the Soldier's initial appointment (reinstatement) order until 13 May 2015 due to an administrative error. The delay of the applicant's promotion to CPT could not have been processed without the initial appointment (reinstatement) in the UTARNG. The adjustment to the applicant's date of rank would be fair and equitable to maintain her current peer group. Upon favorable decision of the board, corrective action would be required by the USAR due to her transfer from the UTARNG effective 1 April 2016. (3) This advisory opinion was coordinated with the NGB Federal Recognition Branch and the UTARNG concurs with this recommendation. 15. On 19 April 2016, a copy of the advisory opinion was sent to the applicant for her information and opportunity to respond. In a one-page letter, dated 25 April 2016, the applicant provided the following response: a. She explains the date discrepancy on her promotion letter of recommendation. Her commander's electronic signature was dated 23 March 2015, yet the document itself was dated 22 April 2014. This was not meant to defraud. Her commander signed the letter originally on 22 April 2014. However, after the administrative error was discovered in May 2014, she stopped preparing her CPT promotion packet. Instead, she worked to correct the error. She later had to complete a new, updated promotion packet because most of her original documentation was no longer valid. She found her original letter of recommendation signed by her commander which had handwritten notes on it. Rather than submit that letter, she asked her commander to sign the document again, which he did on 23 March 2015. She failed to notice, or explain, the discrepancy in dates in her original application. b. With respect to the opinion of the Deputy Chief, Personnel Policy Division, NGB, his solution does not correct the administrative error. She was very disappointed to see his recommendation was to only adjust her date of rank to 14 May 2015. His recommendation means her peers will receive their promotions ahead of her. This puts her at a distinct disadvantage for the rest of her military career. c. She asks the Board to weigh the Officer Branch Chief, UTARNG, recommendation over that of the Deputy Chief, Personnel Policy Division, NGB. The Officer Branch Chief worked with her for almost 2 years to correct the administrative error that caused her to be almost 2 years behind her peers. The Officer Branch Chief knows her, understands the issue, and recognizes the best way to correct the problem. Because of this, she asks the Board to accept his recommendation and to adjust her CPT date of rank to 28 March 2014. This is very important to her and she believes, as does the Officer Branch Chief, that it is in the best interest of the UTARNG. REFERENCES: On 10 February 2015 in a memorandum, the Under Secretary of Defense provided an opinion rendered by the U.S. Court of Appeals for the Federal Circuit on 8 January 2015 concerning the limitation on the authority of military department correction boards. The court affirmed an important limitation on the authority of these military boards in that they do not have the authority to appoint military officers. Under the Appointments Clause of the U.S. Constitution, the President appoints officers of the United States by and with the advice and consent of the Senate unless, by law, Congress has vested appointment authority for inferior officers in the President alone, in Courts of Law, or in the heads of departments. Accordingly, only the President may appoint Regular officers above the pay grade of O-3 and Reserve officers above the pay grade of O-5 following Senate confirmation. Only the Secretary of Defense may appoint all other officers because Congress has vested such appointment authority in the President alone, and the President has assigned that function to the Secretary of Defense. This decision affirms that Military Department correction boards do not have the authority to remedy perceived errors or injustices by correcting records to show that an officer has been appointed to a certain pay grade when the officer has not been appointed to that grade by the President or the Secretary of Defense. Boards may only make such a correction to reflect that a proper appointment has occurred. They may also adjust the date of rank of an officer who has been properly appointed. DISCUSSION: 1. The applicant contends her military records should be corrected by showing she was promoted to CPT/pay grade O-3 in the UTARNG effective 15 January 2014 with the same date of rank and receipt all back pay due to her as a result of this correction. 2. The available evidence shows the applicant was eligible for promotion to CPT as early as 16 January 2014. However, due to administrative errors with both her reinstatement of Federal recognition as a 1LT and missing documents from her file for CPT, her promotion to CPT was delayed until 28 December 2015. 3. The ABCMR may only correct Army records. The Board has no authority to correct records created by other Services or the Department of Defense. Promotion to CPT requires approval by the Secretary of Defense. 4. Notwithstanding the applicant?s arguments and the UTARNG advisory opinion, any correction by the ABCMR must comply 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 and thereby making a correction in compliance with that statute. Where officer personnel issues are involved that require approval by the Secretary of Defense, the Board's hands are tied. 5. In this case, the applicant's initial Federal recognition as a 1LT upon her reinstatement occurred on 13 May 2015. The processing of the applicant's promotion to CPT could not have occurred prior to her Federal recognition in the UTARNG. Therefore, the earliest her CPT date of rank could be adjusted to is 14 May 2015, the date after her Federal recognition. Doing so would be fair and equitable to maintain her current peer group. By law, the Board does not have authority to correct her effective date of rank or authorize back pay and allowances. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002436 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002436 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2