IN THE CASE OF: BOARD DATE: 3 November 2020 DOCKET NUMBER: AR20200002448 APPLICANT REQUESTS: change of his Federal Recognition date of rank to First Lieutenant (1LT) / O-2 from 15 February 2017 to 15 November 2016. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 71 (Oath of Office), dated 15 May 2015 * NGB Form 0122E (Special Orders Number 163), published by the National Guard Bureau, dated 27 July 2015 * DA Form 78 (Recommendation for Promotion to 1LT/CW2), dated 3 June 2017 * NGB Form 0122E (Special Orders Number 140) published by the National Guard Bureau, dated 25 June 2018 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, section 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states on 18 August 2016, an NGB Form 78 (Recommendation for Promotion to 1LT/CW2) was submitted for his promotion to 1LT at 18 months, with an effective date of 15 February 2017. The NGB Form 78 showed his date of rank as 15 August 2015 for 2LT. His correct date of rank to 2LT was 15 May 2015, which would have made his date of rank to 1LT as 15 November 2016. 3. The applicant provides on: a. 15 May 2015 - DA Form 71 (Oath of Office) he received a Reserve Commission as a Second Lieutenant (2LT). b. 27 July 2015 (Order# 163) he received Federal recognition of his Initial Appointment as a 2LT in the ARNG with an effective date of 15 May 2015. c. 3 June 2017 – NGB Form (Recommendation for Promotion to 1LT/CW2) reflects a promotion date of 15 August 2015. It states the Officer has reached 18 months in grade and completed Infantry Officer Basic Course on 10 December 2015. His promotion was approved on Orders# 167-005, promoting him on 15 February 2017. d. 25 June 2018 (Order# 140) he received Federal recognition of his promotion to the rank of 1LT with an effective date of 15 February 2015. 4. In the processing of this case, an advisory opinion, dated 14 September 2020, was received from the National Guard Bureau. The advisory official recommended approval of the applicant's request that the DOR be adjusted from 15 February 2017 to 15 November 2016. On 18 August 2016, the New Mexico Army National Guard (NMARNG) submitted an NGB Form 78 (Recommendation for Promotion to 1LT/CW2). The NGB Form 78 showed the Soldier DOR to 2LT as 15 August 2015 which was incorrect. The Soldier’s correct DOR to 2LT is 15 May 2015 and therefore his DOR to 1LT should be 15 November 2016. IAW NGR 600-100, para 8-8 the minimum years of time in grade for promotion eligibility, Grade: 2LT to 1LT Minimum Time in Grade In Lower Grade: 18 Months and PPOM# 13-006, Promotion from Second Lieutenant (2LT) to First Lieutenant (1LT) The NGB Form 78 (Recommendation for Promotion to 1LT/CW2) is required for submission to the Federal Recognition Section for promotion from 2LT to 1LT or WO1 to CW2. No other documentation is required. A copy of the complete advisory opinion has been provided to the Board for their review and consideration. 5. The applicant was provided with a copy of the advisory opinion to give him an opportunity to respond and/or submit a rebuttal. He did not respond. 6. See applicable regulatory guidance below under REFERENCES. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined there is sufficient evidence to grant relief. There is sufficient evidence to indicate that the applicant’s DOR to 2LT was incorrectly entered on his NGB Form 78, which caused his DOR to 1LT to be incorrect as well. The Board agreed with the NGB Advisory opinion that the applicant should have his Federal Recognition DOR to 1LT corrected to 15 November 2016 vice 15 February 2017. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XX :XX :XX GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 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 Army records of the individual concerned be corrected by: • showing the applicant was promoted to the rank of first lieutenant (1LT/O2) effective 15 November 2016 • paying him all pay due as a result of that correction 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. REFERENCES: 1. Title 10, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Title 10, U.S. Code, Section 14308(f) (Effective Date of Promotion after Federal Recognition) states that the effective date of a promotion of a Reserve commissioned Officer of the Army or the Air Force who is extended Federal recognition in the next higher grade in the Army National Guard or the Air National Guard under section 307 or 310 of title 32 shall be the date on which such Federal recognition in that grade is so extended. Further stated is that if the Secretary concerned determines that there was an undue delay in extending Federal recognition in the next higher grade in the Army National Guard or the Air National Guard to a Reserve commissioned officer of the Army or the Air Force, and the delay was not attributable to the action (or inaction) of such Officer, the effective date of the promotion concerned may be adjusted to a date determined by the Secretary concerned, but not earlier than the effective date of the State promotion. 3. National Guard Regulation (NGR) 600-100 (Commissioned Officer Federal Recognition and Related Personnel Activities) states that a commissioned Officer who has been promoted by the State and extended Federal Recognition in the higher grade will be concurrently promoted to the higher grade in the Reserve of the Army with assignment to the Army National Guard. Federal recognition will be extended by the NGB to those Officers found qualified by the board and approved by the Secretary of the Army after Senate confirmation of appointment. The effective date of Federal recognition will be the date of Senate confirmation if vacancies exist within the statutory limitation prescribed by Title 10, U.S. Code, section 3218, or, if no vacancies exist at that time, on the date such vacancies occur. a. A Second Lieutenant (2LT) must complete a minimum of 3 years of service as a 2LT prior to being considered for promotion to First Lieutenant (1LT) / O-2 and Federal Recognition in that grade. b. A 1LT must complete a minimum of 2 years of service as a 1LT prior to being considered for promotion to Captain (CPT) / O-3 and Federal Recognition in that grade. c. An officer in the grade of 2LT or 1LT who has been assigned and served creditably for at least one year in a CPT or higher may be examined by the Federal Recognition Board for promotion to the next higher grade. Further, that officer must have served for at least one year in the grade immediately preceding the rank to which he or she is being promoted. An officer may be promoted only once under this exception and must meet all other promotion eligibility criteria. Except as provided above, a 2LT who is promoted to the grade of 1LT will be extended Federal recognition in the higher grade on the date he or she completes three years of promotion service. 4. The ABCMR may correct an officer's date of rank/effective date of rank when a proper appointment has already occurred. a. Title 10 USC 624 and 741 provide for situations in which properly appointed officers are provided "backdated" dates of rank and effective dates to remedy errors or inequities affecting their promotion. The authority to remedy these errors or inequities is given to the Service Secretaries. b. DODI 1310.01 (23 August 2013) provides that a Service Secretary may "adjust the date of rank of an officer ... appointed to a higher grade ... if the appointment of that officer to the higher grade is delayed by unusual circumstances." c. What constitutes "unusual circumstances" will, generally, be for the Board to determine based on the available evidence, which often includes an advisory opinion. d. There may be cases (specifically correction of constructive credit that affects original appointment grade) where relief is not possible because an appointment to a higher grade has not yet occurred. In those cases, the Board should be advised of the limits of its authority. The Board may also be advised that the applicant can submit a request for reconsideration after he or she has been appointed to a higher grade. 5. AR 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) states that the minimum time in grade (TIG) for promotion to First Lieutenant (1LT) / O-2 is 2 years with 42 months being the maximum TIG. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200002448 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1