BOARD DATE: 8 August 2017 DOCKET NUMBER: AR20160003101 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: 8 August 2017 DOCKET NUMBER: AR20160003101 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: 8 August 2017 DOCKET NUMBER: AR20160003101 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 date of rank (DOR) from 8 March 2013 to 20 December 2012. 2. The applicant states: a. He was selected for promotion by a special selection board (SSB) on 20 December 2012. Because of the SSB, his DOR should be the date of the board. b. This date will be used to compute time in grade (TIG) for future promotions. He should not receive pay and allowances from that date, just the TIG. c. Other officers who have been selected by this type of board have a DOR based on the SSB date. 3. The applicant provides copies of: * 12 December 2012 National Guard Bureau (NGB) Form 89 (Processing of a Federal Recognition Examining Board) * 27 December 2012 Colorado Army National Guard (COARNG) Element, Joint Force Headquarters (- Detachment 1), Orders 362-002 * 13 March 2013 NGB Special Orders Number 75 AR CONSIDERATION OF EVIDENCE: 1. Having prior enlisted active duty and ARNG service, the applicant was appointed a second lieutenant in the COARNG on 14 January 2003. 2. On 31 May 2012, the applicant was reassigned to the S-1 position for the 89th Troop Command and ordered to full-time National Guard duty as a major in the Active Guard Reserve (AGR) Program. 3. COARNG Element, Joint Force Headquarters (- Detachment 1), Orders  362-002, dated 27 December 2012, promoted the applicant to the rank of major in the S-1 position with a DOR of 20 December 2012. 4. NGB Special Orders Number 75 AR, dated 13 March 2013, extended Federal recognition to the applicant as a major with both his effective date of promotion and his DOR as 8 March 2013. The promotion memorandum stated that if this promotion was based on the recommendation of an SSB, his effective date and DOR would be based on the date of the original selection board. 5. In the development of this case an advisory opinion was obtained from the Deputy Chief, Personnel Policy Division, NGB. The Deputy Chief, Personnel Policy Division, recommended denial of the applicant's request stating: a. The applicant was not promoted by an SSB, he was promoted by a unit vacancy promotion. b. As a unit vacancy promotion, the applicant was subject to the scrolling process. All military officer appointments under Title 10, U.S. Code, including original appointments in the Reserve of the Army, must be approved by the Secretary of Defense. c. The National Guard Federal Recognition Board identifies the time frame for assignment of a scroll to be approximately 2 to 3 weeks and the general processing time for completion of a scrolling action as approximately 6 to 7 months. d. The delay the applicant experienced is one that all officers undergo during the scrolling process. Therefore, the applicant's request should be denied. e. This advisory opinion was coordinated with the ARNG Federal Recognition Section and the State of Colorado concurs with this recommendation. 6. A copy of the advisory opinion was forwarded to the applicant for his review. He did not respond. REFERENCES: 1. National Guard Regulation 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions), provides that: a. Commissioned officers of the ARNG are appointed by the 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 (ARNGUS), as provided in Title 10, U.S. Code, sections 3351(a) and 3359, if they have not already accepted such appointment. b. The appointment of officers in the ARNG is a function of the State concerned, as distinguished from the Federal recognition of such appointment. Upon appointment in the ARNG of a State and subscribing to an oath of office, an individual has a State status under which to function. Such individuals acquire a Federal status when they are Federally recognized and appointed as a Reserve of the Army. c. States will not promote a commissioned officer who is being considered by a Headquarters, Department of the Army, Selection Board from the time the board convenes until its recommendations are announced. d. If a commissioned officer has been selected for promotion by a Headquarters, Department of the Army, Selection Board convened under mandatory selection criteria, the State may promote the officer under unit vacancy criteria prior to the mandatory promotion eligibility date. The requirement to conduct a Federal Recognition Board is waived if the unit vacancy promotion is in the same branch and area of concentration as that for which the officer received mandatory promotion selection. 2. Title 10, U.S. Code, section 1552, the statutory authority for the ABCMR, gives the Board broad authority to correct Army records to remove errors or to remedy an injustice; however, the authority granted by this statute is not unlimited. The ABCMR may only correct Army records. The Board has no authority to correct records created by the other Services or the Department of Defense. DISCUSSION: 1. The COARNG issued orders promoting the applicant to major effective 20 December 2012. At the same time the State approved and forwarded an application for Federal Recognition to the NGB. 2. While the applicant says he was selected for promotion by an SSB, his actual promotion was the result of his transfer to the S-1 position with the 89th Troop Command in an AGR status as a unit vacancy position. If the promotion had been based on an SSB not the unit vacancy the earlier DOR would have been appropriate. 3. As noted in the advisory opinion, a unit vacancy promotion is subject to the scrolling process. In this case the process took until 8 March 2013 and a promotion is not effective until the scrolling process is complete. The available records do not indicate there was an extraordinary delay in the scrolling process. 4. The applicant's effective DOR can only be changed by amending the date Federal recognition was granted by the Secretary of Defense. The ABCMR has no jurisdiction over Department of Defense records and therefore cannot make this type of correction. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003101 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003101 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2