BOARD DATE: 12 December 2017 DOCKET NUMBER: AR20160002938 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: 12 December 2017 DOCKET NUMBER: AR20160002938 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: 12 December 2017 DOCKET NUMBER: AR20160002938 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 he was appointed in the Tennessee Army National Guard (TNARNG) in the rank of major (MAJ) instead of captain (CPT). 2. The applicant states: a. He was accessed into the TNARNG in December of 2014 as an Army Medical Department (AMEDD) CPT, in spite of his DA Form 5074-R (Record of Award of Entry Grade Credit (Medical and Dental Officers)) showing he had been credited with entry grade credit in the amount of 11 years, 1 month, and 13 days. His official DA Form 5074-R was assessed by the Deputy Surgeon General Department at the National Guard Bureau (NGB) and was signed on 24 July 2015. This form confirmed his total entry grade credit of 11 years, 1 month, and 13 days. b. The Fiscal Year 2015 (FY15) Promotion Phase-in Points for Entry Grade Determination, dated 10 October 2014, states that to be accessed as a MAJ into the Dental Corps, 10 years is required. He inquired through his chain of command to his State Officer Actions Branch as to why he was appointed as a CPT despite meeting the requirements to be appointed as a MAJ. The Officer Actions Branch informed him that per the NGB, the FY15 Promotion Phase-in Points for Entry Grade Determination, dated 10 October 2014, was not applicable to ARNG and Reserve personnel until Army Directive 2015-32, dated 13 August 2015, was published. d. There was a 3-week difference between the effective date of his official DA Form 5074-R and the date Army Directive 2015-32 was published. During this 3-week period, his packet was still being accessed and should have been considered under the new policy. His Federal recognition order was not published until 9 December 2015. Being appointed as a CPT with 9 years of time in grade affects his ability to be competitive with his peers. 3. The applicant provides: * Memorandum from the Office of The Surgeon General (OTSG), dated 10 October 2014 * DA Form 5074-R, dated 16 December 2014 * Orders Number 012-810, dated 10 January 2015, issued by the TNARNG * DA Form 5074-1-R (Record of Award of Entry Grade Credit (Health Services Officers)), dated 24 July 2015 * Army Directive 2015-32 (Change to the Grade Determination System for Army Medical Department Officers), dated 13 August 2015 * NGB Special Orders Number 264 AR (NGB Form 0122E), dated 9 December 2015 CONSIDERATION OF EVIDENCE: 1. Following prior enlisted service in the U.S. Marine Corps, the applicant was appointed a Reserve commissioned officer of the Army on 7 February 2000, as a second lieutenant in an unassigned branch. He was reappointed as a Reserve commissioned officer of the Army on 17 May 2004, as a CPT in the Dental Corps. He entered active duty on 24 June 2004 and served on active duty until he was honorably discharged on 30 June 2008. 2. After a break in service, the applicant was appointed as a Reserve commissioned officer of the Army on 10 January 2015, with concurrent appointment in the TNARNG. He was appointed as a CPT in the Dental Corps, and he executed an Oath of Office in the TNARNG on the same date. His appointment orders do not indicate his appointment was with concurrent call to active duty. 3. The applicant's DA Form 5074-R, dated 16 December 2014, shows he was granted 11 years, 1 months, and 13 days of total entry grade credit. His DA Form 5074-1-R, prepared on 21 July 2015, also shows he was granted 11 years, 1 months, and 13 days of total entry grade credit. 4. On 10 October 2014, the OTSG published a memorandum, subject: FY15 Promotion Phase-In Points for Entry Grade Determination. The memorandum includes a table to be use in determining the appropriate entry grade for AMEDD officer appointments with "concurrent call to active duty" for FY15. This table shows that Dental Corps officers with 10 years of entry grade credit would be accessed in the rank of MAJ. 5. On 13 August 2015, the Office of the Secretary of the Army published Army Directive 2015-32. The directive states that effective immediately, the criteria for determining the entry grade of Reserve officers will be the same as the criteria for Regular Army officers (i.e. 10 years entry grade credit for appointment as MAJ). The directive does not indicate the change was retroactive. 6. On 9 December 2015, the NGB published Special Orders Number 264 AR, which extended the applicant Federal recognition of his initial appointment as a CPT, effective 10 January 2015; however, it stipulated that his date of rank was 27 November 2007. 7. During the processing of this case, an advisory opinion was obtained from the Personnel Policy Division at NGB. That office recommended disapproval of the applicant's request, stating: a. The applicant states "he was appointed as a CPT AMEDD officer in the TNARNG when he should have been accessed as a MAJ based on the FY15 Promotion Phase-in Points for Entry Grade Determination, dated 10 October 2014." b. The FY15 Promotion Phase-in Points for Entry Grade Determination, dated 10 October 2014, was not applicable to AMEDD officers appointed in the Reserve component. The constructive credit requirement for a Reserve component appointment as a MAJ on 10 January 2015 was 14 years. The applicant was awarded 11 years of constructive credit, making him a CPT upon accession. Army Directive 2015-32, published 13 August 2015, which governs constructive credit for specialized AMEDD officers, made the constructive credit requirement equal for active and Reserve component AMEDD officers. The applicant took the oath in the ARNG on 10 January 2015, prior to standards changing. c. Based the constructive credit requirement in place for Reserve component officers on 10 January 2015, there was no error in accessing the applicant as a CPT at the time when he was appointed in the TNARNG. The Board may give consideration to the fact that the standard changed while his Federal recognition was being processed. d. The Office of the NGB Surgeon provided policy information for this recommendation. e. The TNARNG concurs with this recommendation. 8. The advisory opinion was forwarded to the applicant to afford him the opportunity to provide additional comments or a rebuttal. He responded and stated: a. He is asking that the Board give thoughtful consideration to the NGB's statement "The Board may give consideration to the fact the standard changed while his Federal recognition was being processed." b. At the time of processing, he was in a temporary Federal recognition status and had not been formally (permanently) federally recognized by the U.S. Government. c. According to National Guard Regulation 600-100 (Commissioned Officers-Federal Recognition and Related Personnel Actions), during the Federal recognition process, an officer's packet must be reviewed by the Office of the Judge Advocate General to ensure the packet is in compliance with policy and law. In this case, the policy on constructive credit had changed, and, therefore, he would contend his Federal recognition should have been in compliance with the policy in effect at the time of the formal recognition, not at the time when he swore in or was not formally recognized. REFERENCES: 1. Army Regulation 135-101 (Appointment of Reserve Commissioned Officers for Assignment to Army Medical Department Branches) provides in chapter 3: a. Grade and date of rank upon original appointment and assignment to an AMEDD branch will be determined by the number of years of entry grade awarded. Except as limited by maximum credit limits, entry grade credit will be the sum of constructive service credit and credit for prior commissioned service. b. An individual appointed as a Reserve officer without concurrent call to active duty, with 7 years or more but less than 14 years of entry grade credit, will be appointed in the rank of CPT. A Reserve officer with 14 years or more, but less than 21 years of entry grade credit, will be appointed in the rank of MAJ. 2. National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions) provides the policy for processing applications for Federal Recognition. It provides the following: a. Paragraph 2-1 provides that commissioned officers of the ARNG are appointed by several States under Article 1, section 8 of the U. S. Constitution. These appointments may be federally recognized by the Chief, NGB under such regulations as the Secretary of the Army may prescribe and under the provisions of this regulation. Officers who are federally recognized in a particular grade and branch shall be tendered an appointment in the same grade as Reserve commissioned officers of the Army with assignment to the ARNG of the United States if they have not already accepted such appointment; b. Paragraph 2-2 provides that the effective date of Federal recognition for original appointment is the date on which the commissioned officer executes the oath of office in the State; c. Paragraph 2-3a provides that temporary Federal recognition upon initial appointment establishes the authorized grade to be used by all officers in their federally recognized status; d. Paragraph 2-13 provides that temporary Federal recognition may be extended to an officer who has been appointed in the ARNG of a State and found to be qualified by a Federal Recognition Board (FRB) pending final determination of eligibility and appointment as a Reserve commissioned officer of the Army. If not sooner withdrawn or replaced by the granting of permanent Federal recognition, temporary Federal recognition will automatically terminate 6 months after the effective date of State appointment. However, should the initial period of temporary Federal recognition expire due to administrative processing delays, through no fault of the member, a subsequent FRB should be convened to consider the request again and grant another new period of temporary Federal recognition if warranted; and e. Paragraph 10-15b provides that temporary Federal recognition may be granted by an FRB to those eligible when the board finds that the member has successfully passed the examination prescribed herein, has subscribed to the oath of office, and has been appointed by a State order for assignment to a position vacancy in a federally recognized unit of the ARNG. The FRB will forward the NGB Form 89 (Proceedings of a Federal Recognition Examining Board) and allied documents to The Adjutant General. When the member is favorably recommended, The Adjutant General will endorse the packet to the NGB. If the member meets the qualifications and requirements for Federal Recognition, the Chief, NGB extends permanent Federal recognition to the member in the grade and branch in which the member is qualified. DISCUSSION: 1. The applicant contends his records should be corrected to show he was appointed in the TNARNG in the rank of MAJ instead of CPT. 2. The evidence shows the applicant was appointed in the TNARNG on 10 January 2015, in the rank of CPT, based on 11 years of entry grade credit. The evidence also shows that at the time of his accession, a minimum of 14 years of entry grade credit was required for appointment in the rank of MAJ. 3. The Secretary of the Army issued updated guidance on 13 August 2015, which made the entry grade credit requirement equal for active and Reserve AMEDD officers, meaning that the effective 13 August 2015, an AMEDD officer with 10 years of entry grade credit would be appointed in the rank of MAJ. However, the updated guidance did not make this change retroactive; therefore, the policy change did not apply to the applicant. 4. The applicant contends, and the NGB advisory opinion suggests, that consideration should be given to the fact that the NGB published his Federal recognition orders on 9 December 2015 (with an effective date of 10 January 2015), which was after the policy guidance change. Nevertheless, at the time of his initial appointment on 10 January 2015, he did not have the required entry grade credit for appointment as MAJ. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002938 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002938 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2