IN THE CASE OF: BOARD DATE: 18 August 2016 DOCKET NUMBER: AR20160006333 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x____ ____x___ ___x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 18 August 2016 DOCKET NUMBER: AR20160006333 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by changing his date of rank to 1LT to 29 November 2015. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to changing his: * effective date of promotion to 1LT * date of rank to 1LT to a date earlier than 29 November 2015 _____________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: 18 August 2016 DOCKET NUMBER: AR20160006333 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 his effective date and date of rank (DOR) to first lieutenant (1LT) be changed to on or about 28 November 2015. 2. The applicant states his effective date and DOR should be reflected in his record as on or about 28 November 2015 based on completion of 18 months of active service. He was informed by the U.S. Army Human Resources Command (HRC) that his name was left off the scroll for some reason; but he was promoted on 28 January 2016. He wants his record to reflect the correct date and all back pay due as a result of the correction. 3. The applicant provides: * two emails * promotion orders * Officer Record Brief (ORB) * Procedures to Execute Promotions to 1LT from HRC's website CONSIDERATION OF EVIDENCE: 1. On 15 May 2009, the applicant was commissioned a second lieutenant in the U. S. Army Reserve (USAR). 2. HRC Orders A04490028, dated 10 April 2014, ordered the applicant to active duty with a reporting date of 29 May 2014. 3. An email, dated 12 August 2015, from the Brigade Human Resources Technician, 65th Medical Brigade, Yongsan, Korea notified the applicant his promotion to 1LT would be on 29 November 2015. 4. An email, dated 25 November 2015, was forwarded from the Brigade Human Resources Technician, 65th Medical Brigade to the U.S. Army, Fort Knox, HRC inquiring about why the applicant's name was not on automatic 1LT promotion orders that were released for November 2015. 5. HRC Order Number 041-008, promoted the applicant to 1LT with an effective date and DOR of 28 January 2016. 6. In the processing of this case an advisory opinion was received from the Chief, Officer Promotions, Special Actions, HRC. HRC recommended, that although the applicant's effective date of promotion cannot be earlier than 28 January 2016; his DOR can be retroactive to his promotion eligibility date of 29 November 2015. a. In accordance with Army Regulation 600-8-29 (Officer Promotions), Table 3-1, Rule 3, the applicant should have been promoted to 1LT (unless proven otherwise ineligible) on 29 November 2015, 18 months from his entrance on active duty current tour. b. The delay of his promotion was not due to any fault of the applicant. c. Title 10 United States Code, section 624(c) (10 USC 624(c)) states appointments to 1LT shall be made by the President of the United States. The appointment authority was delegated to the Secretary of Defense through Executive Order 12396(c). d. The Secretary of Defense approved the appointment scroll containing the applicant's name on 28 January 2016. He was promoted to 1LT with a DOR and effective date of 28 January 2016. 7. On 15 June 2016, the above advisory opinion was forwarded to the applicant to allow him the opportunity to comment on the opinion. The applicant did not provide any comments or rebuttal to the opinion. REFERENCES: 1. 10 USC 624(c)) states appointments under this section shall be made by the President, by and with the advice and consent of the Senate, except that appointments under this section in the grade of first lieutenant or captain, in the case of officers of the Army, Air Force, or Marine Corps, or lieutenant (junior grade) or lieutenant, in the case of officers of the Navy, shall be made by the President alone. 2. 10 USC 14111(a) states if the authority of the President to approve or disapprove the report of a promotion board is delegated to the Secretary of Defense, that authority may not be redelegated except to an official in the Office of the Secretary of Defense. 3. A memorandum, dated 10 February 2015, from the Under Secretary of Defense states that an opinion of the United States Court of Appeals for the Federal Circuit, issued 8 January 2015, affirms an important limitation on the authority of Military Department correction boards: they do not have the authority to appoint military officers. This decision affirms that Military Department correction boards do not have the authority to remedy perceived errors of 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 DOR of an officer who has been properly appointed. DISCUSSION: 1. The Secretary of Defense approved the appointment scroll containing the applicant's name on 28 January 2016. 2. The only way the effective date the applicant was promoted to 1LT could be changed would be to show the Secretary of Defense approved his promotion on an earlier date. However, the Army Board for Correction of Military Records has no jurisdiction over Department of Defense records and therefore could not make that type of correction. 3. Although the applicant's effective date of promotion cannot be earlier than 28 January 2016, his DOR can be retroactive to his promotion eligibility date of 29 November 2015. This does not violate 10 USC 624(c) and allows his seniority in the active duty list per Army Regulation 600-8-29. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006333 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160006333 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2