ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 23 April 2019 DOCKET NUMBER: AR20160011792 APPLICANT REQUESTS: her date of rank be adjusted to reflect 18 September 2014. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Officer Personnel Management, Officer Personnel Action Tracker from NGB G1 * Special Orders Number 122 AR/ NGB Form 0122E, dated 16 June 2015 FACTS: 1. The applicant states: * 18 September 2014 - her promotion packet went before a federal recognition (FEDREC) board * 23 October 2014 - her National Guard Bureau 89 (NGB 89) and approval memo was signed by her Senior Advisor * 26 October 2014 - state orders were cut with an effective date of rank of 18 September 2014 * 1 November 2014 - the applicant's packet was uploaded to NGB * 13 November 2014 - her packet was returned by NGB because the Maryland Officer Personnel Management (MD OPM) had mismatched data * 19 November 2014 - corrected documents were submitted to NGB * 16 December 2014 - her packet was assigned to a scroll * 3 February 2015 - her packet was awaiting NGB Judge Advocate General (JAG) review * 24 March 2015 – her packet was awaiting the Director of Military Review * 27 March 2015 – her packet was waiting for SECDEF review * 11 June 2015- the applicant eventually received promotion orders * she was informed by MD OPM her date of rank would be the date of her FEDREC * she followed up bi-weekly on the status and was told time after time not to worry about the time the packet is at NGB because it does not affect the date of rank which was 18 September 2014 2. The applicant provided OPM, Officer Personnel Action Tracker, NGB etracker which shows: * applicant packet was received on 22 July 2014 and underwent review for the 14 August 2014 FEDREC board * her packet was found to have an expired clearance which takes 30 days or more to initiate and attain an interim * applicant’s promotion memo had errors on the position title, height/weight * with an expired security clearance, the applicant must wait until OPM accepts and opens the security clearance investigation so her packet was returned without action * her packet was brought back to progress after receiving the security memo and an updated promotion recommendation memo * Promotion recommendation memo has numerous errors, memo corrected and packet ready for September FEDREC Board * 18 September the applicant’s packet was not approved for promotion since a discrepancy was found between the DA photo and the officer record brief * 22 October 2014 - applicant brought in her DA Photo * 23 October 2014 - NGB 89 form and approval memo were signed * 26 October 2014 - state promotion order was cut * 25 November 2014 - her packet was awaiting acceptance by NGB * 2 December 2014 – her packet was accepted * 9 December 2014 - awaiting assignment scroll * 16 December 2014 - her packet was on scroll U05-15 * 3 February 2014 - awaiting NGB JAG review * 24 March 2014 - awaiting review of Director Military Personnel Management * 27 May 2014 - awaiting Office of SEC DEF review 3. The applicant also provided Special Orders Number 122 AR which shows: * the applicant's promotion to CW3 in the MOS 420A * promotion effective date is 11 June 2015 * date of rank as CW3 is 11 June 2015 4. A review of the applicant's records show: * On 1 October 2009 the applicant commissioned as a Warrant Officer 1 (WO1) in the Maryland National Guard * On 27 July 2010 the applicant was promoted to Chief Warrant Officer 2 (CW2) 5. Order Number 300-026, issued from Maryland Army National Guard (MDARNG) dated 27 October 2014 shows: * applicant was promoted to Chief Warrant Officer W3 (CW3), effective date 18 September 2014 and Date of Rank 18 September 2014 * additional Instructions: effective date of promotion in the ARNGUS (MD) will be the date permanent Federal Recognition (FEDREC) orders are published 6. On 4 May 2018, the Army Review Boards Agency received an advisory opinion from the NGB, Chief Personnel Policy Division which states: * applicant requests date of rank adjustment to CW3 from 11 June 2015 to 18 September 2014 * Recommendation: Disapproval * 27 October 2014 - MDARNG cut orders for promotion to CW3 with an effective date of 18 September 2014 and additional instructions noting "the effective date […] will be the in accordance with when the permanent Federal Recognition orders are published * 1 November 2014 - MDARNG sent the applicant's packet to NGB, Federal Recognition branch for processing and scrolling * 11 December 2014 - NGB assigned the packet to scroll U05-15 * 11 June 2015 - Secretary of Defense signed U05-15 * the applicant’s federal recognition orders for promotion to CW3 were dated 16 June 2015 with an effective date as of 11 June 2015 * average processing time of a scroll is 6 to 8 months, the applicant's time for scrolling was 183 days, almost exactly 6 months * there is no evidence to suggest the applicant's packet on scroll U05-15 was delayed, nor evidence the applicant suffered an injustice or error during this process * National Guard Bureau, Federal Recognition branch concurs with the recommendation * Maryland Army National Guard did not provide input regarding this case * Orders 325-023, issued from HQ MDARNG dated 21 November 2014 revoked orders 300-026 dated 27 October 2014 7. The applicant was provided with a copy of this advisory opinion to give her an opportunity to responds and/or submit a rebuttal. She did not respond. 8. The Army Board for Correction of Military records (ABCMR) may not appoint an officer to a higher grade. That authority is reserved for the President and has not been delegated below the Secretary of Defense. 9. The ABCMR may correct an officer's DOR/effective DOR when a proper appointment has already occurred. a. Title 10 USC, sections 624 and 741 provide for situations in which properly appointed officers are provided "backdated" DOR and effective dates to remedy errors or inequities affecting their promotion. The authority to remedy these errors or inequities is given to the Service Secretaries. b. DODI 1310.01 (Rank and Seniority of Commissioned Officers) provides that a Service Secretary may "adjust the DOR of an officer appointed to a higher grade if the appointment of that officer to the higher grade is delayed by unusual circumstances." c. What constitutes "unusual circumstances" will, generally, be for the Board to determine based on the available evidence, which often includes an advisory opinion. d. There may be cases (specifically correction of constructive credit that affects original appointment grade) where relief is not possible because an appointment to a higher grade has not yet occurred. In those cases, the Board should be advised of the limits of its authority. The Board may also be advised that the applicant can submit a request for reconsideration after he or she has been appointed to a higher grade. 10. Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system. It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support officer promotions. Chapter 7 provides for Special Selection Boards (SSBs). a. Paragraph 7-2 states SSBs may be convened under Title 10, U.S. Code, section 628, to consider or reconsider commissioned or warrant officers for promotion when Headquarters Department of the Army discovers one or more of the following: (1) An officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error. (2) The board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary). BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions and the advisory opinion were carefully considered. The NGB provided a recommendation to disapprove the applicant’s request containing detailed facts as to why her record is correct. She was provided an opportunity to submit a rebuttal; however, she did not respond. It is a common procedure for ARNG personnel to receive promotion orders informing them the effective dates of their promotion based upon Federal recognition. The Board agreed there was no error or injustice in this case, and do not recommend relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : X :X :X :MEK DENY APPLICATION 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. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. The ABCMR may correct an officer's DOR/effective DOR when a proper appointment has already occurred. a. Title 10 USC, sections 624 and 741 provide for situations in which properly appointed officers are provided "backdated" DOR and effective dates to remedy errors or inequities affecting their promotion. The authority to remedy these errors or inequities is given to the Service Secretaries. b. DODI 1310.01 (Rank and Seniority of Commissioned Officers) provides that a Service Secretary may "adjust the DOR of an officer appointed to a higher grade if the appointment of that officer to the higher grade is delayed by unusual circumstances." c. What constitutes "unusual circumstances" will, generally, be for the Board to determine based on the available evidence, which often includes an advisory opinion. d. There may be cases (specifically correction of constructive credit that affects original appointment grade) where relief is not possible because an appointment to a higher grade has not yet occurred. In those cases, the Board should be advised of the limits of its authority. The Board may also be advised that the applicant can submit a request for reconsideration after he or she has been appointed to a higher grade. 2. Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system. It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support officer promotions. Chapter 7 provides for Special Selection Boards (SSBs). a. Paragraph 7-2 states SSBs may be convened under Title 10, U.S. Code, section 628, to consider or reconsider commissioned or warrant officers for promotion when Headquarters Department of the Army discovers one or more of the following: (1) An officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error. (2) The board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary). //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160011792 2 1