IN THE CASE OF: BOARD DATE: 24 October 2017 DOCKET NUMBER: AR20160001219 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 IN THE CASE OF: BOARD DATE: 24 October 2017 DOCKET NUMBER: AR20160001219 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. IN THE CASE OF: BOARD DATE: 24 October 2017 DOCKET NUMBER: AR20160001219 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 her date of rank (DOR) to captain (CPT) be adjusted to an unspecified date. She also requests a personal hearing before the Board. 2. The applicant states: a. Due to discrimination, she was not promoted to CPT after she was informed she was Department of the Army (DA) selected by the 12 October 2012 CPT Army Medical Department (AMEDD) Selection Board. b. She was advised by her company and battalion commanders that she would be moved to a different position for career progression after being notified she eligible for promotion to CPT. However, the move never happened, which delayed her promotion to CPT until May 2015. c. She was advised to secure a CPT slot elsewhere because there were no vacancies in her company or battalion. However, according to the Unit Manning Report (UMR), dated 25 October 2013, the Company Executive Officer position was vacant while she was still a member of her unit (Company C, 949th Brigade Support Battalion (BSB) of the Texas Army National Guard (TXARNG)). d. After filing an Inspector General (IG) complaint to pursue her transfer for career progression, she was released from the TXARNG and transferred to the U.S. Army Reserve (USAR), where she was promoted with a DOR of 29 December 2014. 3. The applicant provides: * a two-page document titled "2012 CPT AMEDD Promotion Selection Board Results by Competitive Category," released on 16 October 2012 * three UMRs for Company C, 949th BSB, prepared on 25 October 2013, 7 November 2013, and 3 January 2014, respectively * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), for the period ending 28 December 2014 * Orders 016-050, issued by the TXARNG on 16 January 2015 * Orders 042-053, issued by the TXARNG on 11 February 2015 * Orders C-03-503701, issued by the U.S. Army Human Resources Command (HRC) on 10 March 2015 * Orders B-05-501383, issued by HRC on 18 May 2015 CONSIDERATION OF EVIDENCE: 1. Following prior enlisted service in the ARNG, the applicant was appointed as a Reserve commissioned officer of the Army on 17 December 2004, as a second lieutenant (2LT) in the Louisiana Army National Guard (LAARNG). She was granted Federal recognition by Special Order Number 103 AR effective 18 December 2004. 2. Orders 152-043 issued by the LAARNG on 1 June 2005, transferred her to the TXARNG effective 22 March 2005. 3. Orders 059-1058, issued by the TXARNG on 28 February 2006, appointed the applicant as a 2LT in the Medical Service Corps, in area of concentration (AOC) 70B (Health Services Administration), effective 20 January 2006. These orders show she was assigned to Company C, 949th BSB. She was granted Federal recognition by Special Order Number 137 AR effective 20 January 2006. 4. A DA Form 1059 (Service School Academic Evaluation Report), dated 12 December 2007, shows she successfully completed the AMEDD Basic Officer Leader Course on 14 December 2007 and was awarded AOC 70B. 5. A DA Form 1059, dated 23 June 2012, shows she successfully completed the AMEDD Captains Career Course on 23 June 2012. 6. The applicant provides the following documents: a. A two-page document titled "2012 CPT AMEDD Promotion Selection Board Results by Competitive Category," released on 16 October 2012, which shows the applicant's name under the "Non-Active Guard Reserve and ARNG Competitive Categories" as having been selected for promotion to CPT by the board. b. Three UMRs for Company C, 949th BSB, prepared on 25 October 2013, 7 November 2013, and 3 January 2014, respectively. Each document shows paragraph number 401, line 02, titled "Executive Officer" as being vacant. c. Orders 016-050, issued by the TXARNG on 16 January 2015, which show she was honorably separated from the ARNG on 28 December 2014, by reason of being appointed in another uniform service – becoming a member of the USAR. d. Her NGB Form 22, which confirms she was honorably separated on 28 December 2014, under the provisions of National Guard Regulation (NGR) 635-100, paragraph 5a(3), by reason of resignation - appointed in another uniform service. e. Orders 042-053, issued by the TXARNG on 11 February 2005, which amended Orders 016-050 by transferring her to the USAR Control Group (Individual Ready Reserve (IRR)). f. Orders C-03-503701, issued by HRC on 10 March 2015, which reassigned her in the USAR from the USAR Control Group (Reinforcement) (i.e., the IRR), effective 10 March 2015, to the 176th Medical Brigade, Seagoville, TX. g. Orders B-05-501, issued by HRC on 18 May 2015, which promoted her to CPT effective 29 December 2014. These orders contain additional instructions that read: "Officer promoted upon reaching maximum TIG (time in grade) and must be assigned to higher grade positon in accordance with [Army Regulation] 135-[1]55 [ARNG and USAR – Promotion of Commissioned Officers and Warrant Officers Other Than General Officers], [paragraph] 4-9." 7. Orders 16-327-00001, issued by Headquarters, 807th Medical Command (Deployment Support), Fort Douglas, UT, on 22 November 2016, reassigned her to the 785th Medical Company, Fort Snelling, MN, effective 1 December 2016. 8. In connection with the processing of this case, an advisory opinion was obtained on 16 August 2017 from the Chief, Personnel Policy Division, NGB, Arlington, VA. The advisory official recommended disapproval of the applicant's request for adjustment to her DOR to CPT and offered the following opinion: a. The applicant states she was selected for promotion to CPT under the Fiscal Year (FY) 2012 Department of the Army Mandatory Promotion List (AMEDD), which was released on 12 October 2012. She states she was discriminated against by the State, which resulted in her not being given the opportunity to be promoted into an available vacancy as reflected on the 25 October 2013 UMR, position number 401, line number 2, in Company C, 949th BSB. b. Army Regulation 135-155, chapter 4, paragraph 5 (Army National Guard of the United States (ARNGUS) Promotion) provides that an 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. ARNGUS commissioned officers (other than commissioned warrant officers) who are on a promotion list resulting from a mandatory promotion board will be extended Federal recognition in the higher grade. This will be without examination by a Federal recognition board when the officer is appointed in the State in that higher grade to fill a vacancy in the ARNG. c. According to the TXARNG, there is no evidence the Soldier was recommended for promotion and the position in question (paragraph 401, line 02, Company C, 949th BSB) remained vacant due to an administrative error. Another officer was selected to fill the vacancy that was referenced by the applicant in her application. According to the TXARNG State promotion process, all assigned officers must be recommended by the commander, go through the State promotion evaluation system, and be slated per NGR 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions), chapter 8-1, and Department of the Army Pamphlet 600-3 (Officer Professional Development and Career Management), chapter 7-3. d. Department of the Army Mandatory Board selection is not a guarantee of promotion for ARNG officers per National Guard Pamphlet 600-3 (Professional Development and Utilization of Commissioned Officers in the ARNG), paragraph 7-3. Additionally, the Soldier provides no evidence to substantiate her claims of discrimination. Therefore, this office recommends denial of the Soldier's request to adjust her DOR to CPT. e. This advisory opinion was coordinated with the NGB Federal Recognition Section and the TXARNG with their concurrence. 10. The advisory opinion was sent to the applicant on or about 17 August 2017, for her information and to afford her the opportunity to respond to its contents. On 17 August 2017, by electronic mail, she responded by stating she did not wish to make a statement at this time. REFERENCES: 1. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR begins its consideration of each case with the presumption of administrative regularity. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Army Regulation 135-155 prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the ARNGUS and of commissioned and warrant officers of the USAR. a. For promotion to CPT, the officer must complete required military and civilian education requirements, pass an Army Physical Fitness Test or on a valid profile, meet height and weight standards, and be in a valid position authenticated by the unit commander. b. The names of the officers recommended for promotion may be disseminated on or any time after, the transmittal of the report to the President for approval. Promotion lists are subject to additional administrative review and are not to be construed as promotion orders. Accordingly, individuals will not assume that the structure of a list or the presence of a name on a list constitutes a firm forecast for promotion. c. An 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. d. ARNGUS commissioned officers (other than commissioned warrant officers) who are on a promotion list resulting from a mandatory promotion board will be extended Federal recognition in the higher grade. This will be without examination by a Federal recognition board when the officer is appointed in the State in that higher grade to fill a vacancy in the ARNG. e. The effective date of promotion for commissioned officers may not precede the date the promotion board results were approved and the officer must already be assigned/attached to a position in the higher grade. 3. NGR 600-100 provides procedures for processing all applications for Federal recognition of ARNG commissioned officers. Chapter 8 provides for promotions. a. It indicated the promotion of officers in the ARNG is a function of the State. Promotions will be accomplished only when an appropriate unit position vacancy in the grade exists in the unit. It indicates that unit vacancy promotions of qualified officers are based on the recommendations of the member's immediate commander, properly endorsed by all commanders concerned and the Adjutant General. It also provides procedures for processing all applications for Federal recognition by the NGB. b. Section II explains promotions to fill unit vacancies (now called positions vacancies) and states to be considered for Federal recognition and subsequent Reserve of the Army promotion following State promotion to fill a position vacancy, an ARNG commissioned officer must meet the medical, educational, physical, security, and years of service requirements. 4. National Guard Pamphlet 600-3 provides general guidance to assist State adjutants general, officer personnel managers, commanders, and individual officers in the professional development and proper use of all ARNG officers. a. Paragraph 7-3 states the promotion of officers in the ARNG is a function of the State. As in original appointments, officers promoted by State authorities have a State status in the higher grade in which to function. However, to be extended Federal recognition in the higher grade they must have satisfied certain requirements prescribed in NGR 600-100. Promotion to the next higher grade will be made without regard to race, sex, religion, or national origin, and will be accomplished only when an appropriate vacancy in the higher grade exists in the unit. b. To be eligible for promotion to a unit vacancy, an ARNG officer must: * be recommended by the unit commander and the State Adjutant General * be in an authorized position which calls for the next higher grade * be in an active ARNG status for at least one year preceding date of promotion * meet the medical standards as prescribed in AR 40-501 and the height and weight standards in AR 600-9 * have completed the prescribed minimum years of promotion service * have completed the minimum military education requirements * have successfully completed the Army Physical Fitness Test within 18 months DISCUSSION: 1. The applicant's request for adjustment of her DOR to CPT was carefully considered. 2. The evidence of record shows she was considered and selected for promotion to CPT by the FY12 CPT AMEDD Promotion Selection Board that was released on 16 October 2012. 3. Eligibility for promotion does not mean automatic promotion to the next higher grade. In accordance with applicable regulatory guidance, National Guard promotions are a function of the State. Officers promoted by State authorities must have a State status, be recommended by the commander and go through the State promotion evaluation system and slating process, meet educational, medical, and minimum years of service standards. The promotion will be accomplished only when an appropriate vacancy in the higher grade exists. 4. The NGB advisory opinion, written with the concurrence of the TXARNG, recommended disapproval of the applicant's request by stating that there was no evidence the applicant was recommended for promotion and the position in question remained vacant due to an administrative error. Another officer was selected to fill the vacancy that the applicant contends was available at the time of her selection to CPT. 5. There is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial and credible evidence to support a claim. There appears to be no arbitrary or capricious actions from the chain of command. The available records are void of evidence that shows she was properly recommended for promotion by her commander, or that shows she was discriminated against in not being selected for the contended position. 6. After being honorably separated from the TXARNG on 28 December 2014 and being transferred to the USAR, the applicant was promoted to CPT with an effective date of 29 December 2014 per applicable Army regulations. 7. There appears to be no error or injustice in this case that would warrant a DOR adjustment. 8. The applicant's request for a personal appearance hearing was carefully considered. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001219 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001219 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2