IN THE CASE OF: BOARD DATE: 28 September 2017 DOCKET NUMBER: AR20170002219 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 IN THE CASE OF: BOARD DATE: 28 September 2017 DOCKET NUMBER: AR20170002219 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 all: a. all Department of the Army records of the individual concerned be corrected by issuing orders amending her first lieutenant date of rank to 13 August 2015; and b. all Army National Guard records of the individual concerned be corrected by issuing orders showing she was promoted to first lieutenant on 31 July 2015 and correcting her 11 August 2015 NGB Form 22. 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 the effective date of promotion to first lieutenant (for pay and allowances). _____________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. IN THE CASE OF: BOARD DATE: 28 September 2017 DOCKET NUMBER: AR20170002219 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 records to show she was promoted to first lieutenant (1LT)/pay grade O-2 on her promotion eligibility date (PED) of 31 July 2015, instead of 10 October 2016. 2. The applicant states she was appointed as a Reserve commissioned officer, in the rank of second lieutenant (2LT)/pay grade O-1 on 1 August 2013 and she entered active duty on 12 August 2015. a. The Army regulatory policy for 1LT promotion eligibility shows the service requirement is 24 months minus one day from the date of commissioning or 18 months from entrance on active duty, whichever comes first. b. She states the latest date that she should have been promoted was on 31 July 2015. It appears Army officials do not understand the promotion regulation because she received an email message stating the earliest she will be promoted to 1LT is October 2016, which is well beyond the required service requirement. 3. The applicant provides copies of her oath of office, appointment orders, active duty orders with amendment, and email messages. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Army National Guard (ARNG) of the United States (ARNGUS) and in the New Mexico ARNG on 14 August 2012 in the grade of E-3. She further enlisted as a cadet in the U.S. Army Reserve (USAR) on 10 September 2012 for a period of 8 years. 2. Headquarters, U.S. Army (USA) Cadet Command (USACC), Fort Knox, KY, Orders 126-019, dated 6 May 2013, released the applicant from the USACC and assigned her to USA Human Resources Command (HRC), Army Reserve Control Group: Officer Active Duty Obligor, Fort Knox, KY, effective 1 August 2013. 3. Department of Military Science, New Mexico Military Institute, Roswell, NM, memorandum, dated 1 August 2013, and National Guard Bureau (NGB), Arlington, VA, memorandum, dated 18 September 2013, appointed the applicant as a Reserve commissioned officer of the Army, in the rank of 2LT, effective 1 August 2013. A DA Form 71 (Oath of Office) and an NGB Form 337 (Oaths of Office) show she executed the oath of office on 1 August 2013. 4. NGB, Washington, DC, Special Orders Number 233 AR, dated 18 September 2013, announced the extension of Federal recognition in the ARNG of the applicant's initial appointment as a 2LT, effective and with a date of rank (DOR) of 1 August 2013. 5. On 15 May 2015, the applicant requested release from the Vermont ARNG (VTARNG) in order to pursue her military career in an active duty status. a. On 27 August 2015, the Deputy Chief of Staff for Personnel, VTARNG, confirmed that the applicant was accessed into the VTARNG effective 1 August 2013; her request was received on 25 August 2015 with an effective date of 11 August 2015; and he concurred with her release from the VTARNG effective 11 August 2015. b. On 27 August 2015, The Adjutant General, VTARNG, accepted the transfer of the applicant to the USAR (Individual Ready Reserve) to serve in the Active Component Army, effective 11 August 2015, contingent upon her compliance with all inventory, obligations, duties, and responsibilities. 6. A review of the applicant's military personnel records revealed, in pertinent part, the following records pertaining to her separation from the ARNG: a. NGB, Washington, DC, Special Orders Number 195, dated 1 September 2015, that announced the withdrawal of Federal recognition in the ARNG and her transfer to the USAR, in the grade of rank of 2LT, effective 11 August 2015. b. State of Vermont, The Adjutant General's Office, Colchester, VT, Orders 146-008, dated 25 May 2016, that honorably separated her from the VTARNG, in the grade of rank of 2LT, effective 11 August 2015. c. NGB Form 22 (Report of Separation and Record of Service) that shows she enlisted on 14 August 2012, was honorably separated effective 11 August 2015 based on appointment in a Regular component, and transferred to the Active Component of the USA. It also shows in: * item 5a (Rank): 2LT * item 5b (Pay Grade): O-1 * item 6 (DOR): 18 September 2013 [sic] * item 20 (Signature of Person Being Separated): "Soldier Not Available For Signature" 7. Headquarters, USA HRC, Fort Knox, KY, Orders A04590020, dated 20 April 2015, as amended by Orders A04590020A01, dated 4 November 2015, ordered the applicant to active duty, in the grade of rank of 2LT, effective 12 August 2015. The orders show, in pertinent part, that she was to perform temporary duty (TDY) at Fort Huachuca, AZ, from 12 August 2015 through 14 December 2015, and then report to Fort Bliss, TX. a. The Additional Instructions show, "[Commander, Installation Management Command] will ensure officer executes DA Form 71, RA [Regular Army] Oath of Office upon RA accession/arrival to Basic Officer Leaders Course and immediately upload to [the integrated Personnel Electronic Records Management System]." b. The "For Army Use" section shows: "Component: RA." 8. A DA Form 71 shows the applicant was appointed in the RA, in the rank of 2LT (Military Intelligence) on 7 April 2016. (Headquarters and Headquarters Company, 16th Engineer Battalion, 1st Brigade Combat Team, 1st Armored Division, Fort Bliss, TX, Memorandum For Record, dated 7 April 2016, shows the commander explained the difference in the date of the applicant's entry on active duty (12 August 2015) and the date of the oath of office. It shows the applicant was assigned in a TDY status at the U.S. Army Military Intelligence Center of Excellence from August 2015 until December 2015; however, an oath of office was not administered.) 9. In support of her application the applicant provides, in pertinent part, two email messages from the Active Component, Department of the Army Special Orders Team, Officer Promotions, USA HRC, that show: a. on 12 April 2016, the applicant was advised that a search of promotion scrolls failed to show her appointment/promotion to 1LT, her name would be added on a scroll, and the earliest she could be promoted to 1LT on the Active Duty List (ADL) was 13 August 2015; and b. on 13 June 2016, the adjutant in her unit was notified that the applicant's name was added to a scroll that was forwarded on 14 April 2016 and the earliest it would be returned was in October/November 2016. 10. In the processing of this case, an advisory opinion was obtained from the Chief, Officer Promotions, Special Actions, USA HRC, Fort Knox, KY, dated 19 July 2017. a. The advisory official stated that based on a review of records and the information provided, the applicant's request for adjustment of her 1LT DOR has merit (in part). (1) Prior to her entrance on the ADL, she served as a member of the ARNG, which governed her appointment/promotion to 1LT (during the period 1 August 2013 through 11 August 2015). Therefore, any promotion prior to her placement on the ADL falls under the purview of the NGB/VTARNG. (2) The applicant's current entrance on the ADL was effective 12 August 2015. Therefore, the earliest DOR to 1LT based on her placement on the ADL would be 13 August 2015. b. The advisory official recommends that her current 1LT DOR and effective date of 10 October 2016 be changed to 13 August 2015 (unless proven otherwise ineligible). c. The HRC advisory official states that approval of the recommendation would not violate Title 10, U.S. Code, section 624(c) (10 USC 624(c)) and allows the applicant's seniority on the ADL per Army Regulation 600-8-29 (Officer Promotions) and 10 USC 741. 11. On 1 August 2017, the applicant was provided a copy of the advisory opinion to allow her the opportunity (30 days) to submit comments or a rebuttal. A response was not received from the applicant. REFERENCES: 1. 10 USC 531 (Original appointments of commissioned officers), paragraph a(1), shows, in pertinent part, original appointments in the grades of 2LT, 1LT, and captain in the RA shall be made by the President alone. 2. 10 USC 624 (Promotions: how made), paragraph a(2), in pertinent part, shows officers to be promoted to the grade of 1LT shall be promoted in accordance with regulations prescribed by the Secretary concerned. 3. Executive Order 13384, dated 27 July 2005 (Assignment of Functions Relating to Original Appointments as Commissioned Officers and Chief Warrant Officer Appointments in the Armed Forces), section 1, shows that the Secretary of Defense shall perform the functions of the President under the following provisions of Title 10, USC: subsection 531(a)(1) and the second sentence of subsection 571(b). 4. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) applies to commissioned officers of the ARNGUS and the USAR on the Reserve Active-Status List, and to Reserve warrant officers who are in an active status. Chapter 2 (Promotion Eligibility and Qualification Requirements), Table 2-1 (Time in grade requirements for commissioned officers), shows the minimum time in grade requirement for promotion from 2LT to 1LT is 2 years. 5. Army Regulation 600-8-29 prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the ADL. Chapter 3 (Managing Promotions to 1LT and Chief Warrant Officer Two), paragraph 3-1 (Rules for computing PED to 1LT), shows the PED will be computed according to the rules given in Table 3-1. The PED to 1LT is 18 months of active duty service as a 2LT on the ADL. DISCUSSION: 1. The applicant was appointed as a Reserve commissioned officer of the Army, in the rank of 2LT, on 1 August 2013. As such, her 1LT PED was 31 July 2015. a. The applicant was eligible for promotion and she met the requirements for promotion to 1LT on her PED of 31 July 2015. b. She was honorably separated from the ARNGUS and the VTARNG effective 11 August 2015. For reasons that are not clear, she was not promoted to 1LT on her PED (31 July 2015) prior to being separated. c. She entered active duty, in the rank of 2LT, on 12 August 2015. Despite having orders that accessioned her into the RA, she was not administered the oath of office for appointment in the RA until 7 April 2016. d. Orders promoted her to 1LT, effective and with a DOR of 10 October 2016. 2. The evidence of record shows her promotion to 1LT was delayed while she was serving in the ARNG and also while serving on the ADL. The reasons for the delay in her promotion are not clear; however, the evidence of record fails to show that it was due to the fault of the applicant. 3. The effective date for promotion to 1LT cannot be modified because that would effectively amend the Secretary of Defense's action, which is beyond the authority of the USA HRC and the Army Board for Correction of Military Records. 4. The Board may recommend correction of the applicant's records to show she was promoted to 1LT on the ADL with a DOR of 13 August 2015. However, in this case, this correction would not extend to the effective date of the applicant's promotion to 1LT, which would remain 10 October 2016. 5. The Board may also recommend correction of the applicant's records to show she was promoted to 1LT in the VTARNG/ARNGUS effective and with a DOR of 31 July 2015. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170002219 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170002219 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2