BOARD DATE: 10 January 2017 DOCKET NUMBER: AR20160008210 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ __x______ __x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 10 January 2017 DOCKET NUMBER: AR20160008210 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 10 January 2017 DOCKET NUMBER: AR20160008210 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 his records to show the National Guard Bureau (NGB) extended him Federal recognition and promoted him to first lieutenant (1LT)/O-2 with an effective date and date of rank (DOR) of 26 January 2014 instead of 15 October 2014. He also requests back pay and allowances based on this adjustment. 2. The effective date of his Federal recognition to the rank of 1LT is incorrect. His State headquarters did not disseminate the guidance that 1LT promotions were effective at the 18 month time in service (TIS) date to his Battalion. When his Battalion S1 created his promotion packet, the S1's understanding was that the effective date of rank (DOR) to 1LT would be 18 months' TIS or the completion of the Basic Officer Leader Course (BOLC), whichever came second. His Battalion was unaware of the State's new guidance. Other 1LTs in his Battalion were promoted prior to their completion of BOLC at their 18-month TIS date. The applicant requests the same application of the State's promotion guidance that other 1LTs received to his record. He is competing at the Department of the Army level for selection to captain (CPT) against other officers in the same grade. It is unjust that their DORs were awarded before they completed BOLC and effectively outrank him by time in grade (TIG) criteria. In one particular case, another O-2 who was promoted while attending BOLC outranks him. In this case, he completed BOLC 5 months prior the officer in question and yet, as it stands, that officer outranks him by 10 months TIG. 3. The applicant provides a memorandum, subject: Request for Waiver – Second lieutenant (2LT) not promoted by 24 months TIG granting extension from 24 to 36 months – 2LT [applicant] (XX94), dated 26 February 2015 and Special Orders Number 49 AR, dated 6 March 2015. CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a Reserve Commissioned officer and as a commissioned officer in the South Carolina Army National Guard (ARNG) (SCARNG) in the rank of 2LT on 26 July 2012. 2. Special Orders Number 91 AR, published by the NGB on 2 April 2013 extended him Federal recognition in the rank of 2LT with an effective date and DOR of 26 July 2012. These orders also show he was assigned to Battery C, 1st Battalion, 178th Field Artillery, Manning, SC, as a Fire Direction Officer. 4. His record contains a DA Form 1059 (Service School Academic Evaluation Report (AER)), dated 15 October 2014, showing he attended Field Artillery BOLC from 2 June 2014 to 15 October 2014 and achieved course standards. 5. Orders 006-839, published by the SCARNG, on 6 January 2015, promoted him to 1LT/O-2 with an effective date and DOR of 15 October 2014. 6. Orders Number 49 AR, published by the NGB on 6 March 2015 extended him Federal recognition as a 1LT with an effective date and DOR of 15 October 2014. 7. The applicant provided a memorandum, dated 26 February 2015 from the Chief, Personnel Policy Division, NGB that shows he was granted a waiver for an extension of non-promoted 2LT after 24 months TIG. The official directed that upon receipt of this extension, the applicant should be processed for promotion immediately to avoid involuntary separation. The official stated that waiver requests are considered on a case-by-case basis and this approval should not be considered as precedent. 8. On 24 August 2016, the Chief, Personnel Policy Division, NGB provided an advisory opinion and recommended approval of the applicant's request. The advisory official opined: a. The applicant received his Federal recognition as a 2LT in the SCARNG on 26 July 2012 and completed the Field Artillery BOLC on 15 October 2014. b. Title 32, U.S. Code, section 310 – Federal recognition of National Guard officers: automatic recognition, subparagraph (a)(1) states, "Notwithstanding sections 307 and 309 of this title, if a 2LT of the National Guard is promoted to the grade of 1LT to fill a vacancy in a federally recognized unit in the National Guard, Federal recognition is automatically extended to that officer in the grade of 1LT, effective as of the date on which that officer has completed the service in the grade specified in section 14303(a) of title 10 and has met such other requirements as prescribed by the Secretary concerned under section 14308(b) of that title, if the officer has remained in an active status since the officer was so recommended." c. Recommend approval, correct DOR, effective date, and all back pay to 25 January 2014 in accordance with Title 32, U.S. Code, section 310. d. This advisory opinion was coordinated with the National Guard Bureau Federal Recognition Branch. The SCARNG did not provide a recommendation on this advisory opinion. 9. The Army Review Boards Agency forwarded a copy of the advisory opinion to the applicant to allow him to provide comments. He did not respond. REFERENCES: 1. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers, Other Than General Officers) prescribes the policies and procedures for the promotion of Reserve and Army National Guard officers. Chapter 2 (Promotion Eligibility and Qualification Requirements), Table 2-1 (TIG Requirements Commissioned Officers, Other Than Commissioned Warrant Officers), provides, in pertinent part, that the minimum TIG as a 2LT for promotion to 1LT is 2 years minimum and the maximum TIG is 42 months. This regulation also states in Table 2-2 (Military educational requirements commissioned officers, other than commissioned warrant officers grade) states that the completion of BOLC is also a requirement for promotion from 2LT to 1LT. 2. Army Regulation 135-155, paragraph 4–5 states an ARNG of the United States (ARNGUS) officer extended Federal recognition in a higher grade will be appointed in the same grade as a Reserve commissioned officer of the Army by memorandum published by the Chief, NGB (CNGB). 3. National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions) provides procedures for processing applications for Federal recognition. a. Chapter 8 establishes the policies and procedures for promotion of officers in the ARNGUS. Essentially, officers serving in a unit where a position vacancy exists may be promoted by the State to fill the position vacancy. However, until Federal recognition in the new rank is extended by the NGB, the individual cannot be promoted and paid for the higher rank. b. Paragraph 10-1 states commissioned officers of the ARNG are appointed and promoted by the States under Article 1, Section 8 of the U.S. Constitution. In order for an officer to be concurrently appointed, promoted, or receive a branch transfer as a Reserve commissioned officer of the Army, the State action must be federally recognized. Federal recognition action is the acknowledgment by the Federal government (the Secretary of Defense (SECDEF)) that an officer appointed, promoted, or transferred to an authorized grade and position vacancy in the ARNG meets the prescribed laws and regulations. 4. Title 32, U.S. Code section 310 (a)(1) states, notwithstanding sections 307 and 309 of this title, if a 2LT of the National Guard is promoted to the grade of 1LT to fill a vacancy in a federally recognized unit in the National Guard, Federal recognition is automatically extended to that officer in the grade of 1LT, effective as of the date on which that officer has completed the service in the grade specified in section 14303(a)(1) of title 10 and has met such other requirements as prescribed by the Secretary concerned under section 14308(b) of that title, if the officer has remained in an active status since the officer was so recommended. 5. Title 10, U.S. Code, section 14303(a)(1) states that an officer who is on the reserve active-status list of the Army and holds a permanent appointment in the grade of 2LT or 1LT as a reserve officer of the Army may not be promoted to the next higher grade, or granted Federal recognition in that grade, until the officer has completed the following years of service in grade: a. Eighteen months, in the case of an officer holding a permanent appointment in the grade of 2LT. b. Two years, in the case of an officer holding a permanent appointment in the grade of 1LT. 6. Title 10, U.S. Code, section 14308(b) (Promotions: how made) states: (1) Officers on a promotion list for a competitive category shall be promoted in the manner specified in section 12203 of this title. (2) Officers on a promotion list for a competitive category shall be promoted to the next higher grade in accordance with regulations prescribed by the Secretary of the military department concerned. Except as provided in section 14311, 14312, or 14502(e) of this title or in subsection (d) or (e), promotions shall be made in the order in which the names of officers appear on the promotion list and after officers previously selected for promotion in that competitive category have been promoted. (3) Officers to be promoted to the grade of 1LT shall be promoted in accordance with regulations prescribed by the Secretary of the military department concerned. 7. Authority granted to the Secretaries of the Military Departments in Secretary of Defense (SECDEF) Memorandum, subject: Re-delegation of Authority under Executive Order 12396, dated 9 December 1982, to appoint officers under section 624 of Title 10, U.S. Code, was rescinded effective 1 July 2005 based on advice from the Department of Justice that prohibits re-delegation below the SECDEF of the President’s authority to appoint military officers. All military officer appointments under section 12203 of Title 10, U.S. Code, including original appointments in the Reserve of the Army, not previously approved by 30 June 2005, shall be submitted to the SECDEF. 8. A memorandum, dated 10 February 2015, from the Under Secretary of Defense states that an opinion of the United States Court of Appeals for the Federal Circuit, issued 8 January 2015, affirms an important limitation on the authority of Military Department correction boards: they do not have the authority to appoint military officers. This decision affirms that Military Department correction boards do not have the authority to remedy perceived errors of injustices by correcting records to show that an officer has been appointed to a certain 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 DOR of an officer who has been properly appointed. DISCUSSION: 1. The SCARNG appointed the applicant as a 2LT on 26 July 2012 and granted him Federal recognition with DOR and effective date commensurate with his date of appointment. 2. The governing regulation states that the minimum TIG for promotion to 1LT is 2 years and the maximum is 42 months. Completion of the BOLC is also a requirement for promotion to 1LT. 3. The evidence of record shows the applicant attained 24 months TIG as a 2LT on 26 July 2014 and he completed the Field Artillery BOLC on 15 October 2014. 4. Special Orders Number 49 AR, dated 6 March 2015 extended him Federal recognition for his promotion to 1LT with an effective date and DOR of 15 October 2014. 5. Army Regulation 135-155 states that the appropriate TIG and completion of BOLC are required for promotion to 1LT. The applicant met the TIG requirements but did not meet the education requirements until 15 October 2014. He was federally recognized as a 1LT with an effective date and DOR of 15 October 2014, the date he completed BOLC. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160008210 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160008210 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2