BOARD DATE: 16 August 2016 DOCKET NUMBER: AR20160006771 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 BOARD DATE: 16 August 2016 DOCKET NUMBER: AR20160006771 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 first lieutenant (1LT) to 6 June 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 the effective date of promotion to 1LT. ____________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: 16 August 2016 DOCKET NUMBER: AR20160006771 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 6 June 2015. 2. The applicant states he does not have promotion orders and he was promoted on 26 November 2015 to O2E. He was informed by Mr. H___ at the U.S. Army Human Resources Command (HRC) that he was eligible for promotion on 6 June 2015. He was instructed to request a records correction. 3. The applicant provides email, dated between 27 January and 10 February 2016. CONSIDERATION OF EVIDENCE: 1. The applicant previously served 9 years, 7 months, and 2 days in the Regular Army (RA) in an enlisted status. 2. On 6 December 2013, he was commissioned a second lieutenant in the RA. 3. Headquarters, United States Army Cadet Command Orders 344-0220A-4310, dated 10 December 2013, ordered him to active duty. He entered active duty on 6 December 2013. 4. Email, dated between 27 January and 10 February 2016, that was exchanged between the applicant's unit and HRC show promotion orders for the applicant could not be found. a. Email, dated 28 January 2016, from HRC indicated the applicant could not be promoted until he was scrolled. b. Email, dated 10 February 2016, from HRC indicated the applicant had not been scrolled and he was added to a supplemental scroll to be sent no later than next week. The process was taking 90 to 180 days. Mr. H___ advised that the applicant should contact the Army Board for Correction of Military Records (ABCMR) to request his original date of rank to 1LT per his eligibility and all pay and entitlements. 5. On 10 June 2016, an advisory opinion was received from the Chief, Officer Promotions, Special Actions, HRC, which recommended, that although the applicant's effective date of promotion cannot be earlier than the approval date of the scroll, his DOR should be reactive to his promotion eligibility date of 6 June 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 6 June 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 (10 USC), section 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. As of the date of the advisory, 10 June 2016, HRC had not received the Secretary of Defense's approved appointment scroll containing the applicant's name. Once received the earliest his promotion can be effective is the date the scroll was approved. 6. On 15 June 2016, the above advisory opinion was forwarded to the applicant to allow him the opportunity to submit comments on the opinion. The applicant did not provide any comments or rebuttal to the opinion. 7. HRC Order Number 196-007, dated 14 July 2016, promoted the applicant to 1LT with an effective date and DOR of 2 June 2016. 8. On 1 August 2016, the applicant was released from active duty by reason of the completion of his required active service. 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. It appears the Secretary of Defense approved the appointment scroll containing the applicant's name and he was promoted effective 2 June 2016 with a DOR of 2 June 2016. 2. The only way the applicant’s effective date could be would be to show the Secretary of Defense approved his promotion on an earlier date. However, the ABCMR has no jurisdiction over Department of Defense records; therefore that action could not be taken. 3. Although the applicant's effective date of promotion cannot be earlier than 2 June 2016, his DOR can be reactive to his promotion eligibility date of 6 June 2015. This does not violate 10 USC 624(c) and allows his seniority on 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) AR20160006771 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160006771 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2