RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-01705

XXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

Her date of rank (DOR) and promotion effective date (PED) to lieutenant colonel (O-5) be changed to 7 Sep 18, the date her promotion was approved by the Federal Recognition Examining Board (FREB).

APPLICANT’S CONTENTIONS

She met a FREB on 7 Sep 18 for promotion to lieutenant colonel; however, due to an administrative oversight, her package was not timely received and processed by the National Guard Bureau.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a currently serving lieutenant colonel in the Air National Guard (ANG) with a DOR of 22 May 19, and a PED of 24 Oct 19.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.

APPLICABLE AUTHORITY

Title 10, United States Code, Section 531: Original appointments of commissioned officers.  Original appointments in the grades of major (O-4) , lieutenant colonel (O-5) , and colonel (O-6)  in the Regular Army, Regular Air Force, and Regular Marine Corps and in the grades of lieutenant commander, commander, and captain in the Regular Navy shall be made by the President, by and with the advice and consent of the Senate.

According to Under Secretary of Defense (Personnel and Readiness) memorandum dated 10 Feb 15, only the President may appoint Regular officers above the grade of O-3 and Reserve officers above the 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 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.

AIR FORCE EVALUATION

NGB/A1PO recommends denying the application.  The state consideration package was received by NGB/A1PO in Jul 19 and the applicant was promoted in a Jul 19 PV with a DOR of 22 May 19 and a PED of 24 Oct 19.  This office would not be able to recommend favorable relief without the following documentation: (1) State Memorandum of Record – Acknowledgement of Administrative oversight; (2) Initial State FREB Applicant Consideration Package dated Sep 18 and (3) All correspondence between A1PO/Wing/State HQ of delay of consideration.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 12 Aug 20 for comment (Exhibit D), and the applicant replied on 12 Sep 20.  In her response, the applicant provided a letter from her unit assuming responsibility for misplacing or overlooking the applicant’s promotion package.  She also provided an email trail reflecting her promotion board package was forwarded to the wing on 9 Sep 18.  The applicant’s complete response is at Exhibit E.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board concludes the applicant is the victim of an error or injustice.  While the Board notes the recommendation of NGB/A1PO against correcting the record, the Board believes it is in the interest of justice to recommend granting the requested relief.  In this respect, the Board notes The Adjutant General (TAG) provided a memorandum indicating that through no fault of the applicant, her package was not submitted by the established suspense date.  Having no reason to doubt the TAG’s integrity in this matter the Board believes that favorable consideration of her request is warranted.  Accordingly the Board recommends correcting the applicant’s records as indicated below.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show she was promoted to the grade of lieutenant colonel (O-5) with a DOR of 7 Sep 18 rather than 22 May 19 and a PED of 29 Jan 19 rather than 24 Oct 19. 

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2020-01705 in Executive Session on 22 Oct 20:

, Panel Chair
, Panel Member
, Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, dated 8 Mar 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, NGB/A1PO, dated 5 Aug 20.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 12 Aug 20.
Exhibit E:	Applicant’s response, w/atchs, dated 12 Sep 20.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.