BOARD DATE: 11 January 2018 DOCKET NUMBER: AR20160015358 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: 11 January 2018 DOCKET NUMBER: AR20160015358 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 and Army National Guard records of the individual concerned be corrected by adjusting his date of rank to captain to 3 August 2013. 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 adjustment of his effective date of promotion to captain. __________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: 11 January 2018 DOCKET NUMBER: AR20160015358 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 adjustment of his date of rank (DOR) and effective DOR for captain (CPT) in the District of Columbia Army National Guard (DCARNG) from 23 December 2014 to 3 May 2013. 2. The applicant states: * he is requesting relief of an error and injustice because his unit failed to consider him qualified for mandatory promotion consideration * the DOR is reflected on Special Orders Number 378, dated 29 December 2014, and Orders Number 226-002, dated 14 August 2014 * according to note 5 of Table 2-2 of Army Regulation (AR) 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), Judge Advocate General's Corps (JAGC) officers will be considered educationally qualified for mandatory promotion consideration if progressing satisfactorily per AR 27-1 (Judge Advocate Legal Services) * AR 27-1, paragraph 10-5(b), states that Reserve Component (RC) Judge Advocate (JA) officers must be branch qualified before assignment to a JA position * the grade of CPT or lower requires credit for the Judge Advocate Officer Basic Course (JAOBC); he completed JAOBC on 3 May 2012, and therefore he was qualified for mandatory promotion consideration by 3 May 2012 * as a matter of custom, RC JA officers are not promoted until the first anniversary following completion of JAOBC, thus he requests backdating his DOR to 3 May 2013 * he was not considered for promotion until August 2014 * his unit was identified for elimination and he believes this may have improperly impacted the unit's processing of his promotion * he attempted to address this matter through his chain of command and the Inspector General (IG) of the DCARNG * in August 2016, he was informed that the DC National Guard (DCNG) could not offer him relief and recommended he file with Army Review Boards Agency (ARBA) 3. The applicant provides: * Orders 214-010, dated 4 August 2011 * Special Orders 55 AR, dated 21 February 2012 * Orders 226-002, dated 14 August 2014 * Orders 231-005, dated 19 August 2014 * Special Orders 378, 29 dated 2014 * IG emails * DCARNG emails * self-authored statement to DCNG Chief of Staff * Army regulation extracts * appointment to first lieutenant (1LT) * OERS from 2012 to 2016 CONSIDERATION OF EVIDENCE: 1. On 28 March 2011, the National Guard Bureau (NGB), by memorandum, informed the Commander, Judge Advocate Recruiting Office, in Rosslyn, Virginia that the NGB granted the applicant an age in grade waiver. In addition the approving official stated that in accordance with AR 135-100 (Appointment of Commissioned and Warrant Officers of the Army) Table 3-4, the applicant may be awarded 3 years of constructive service credit. 2. After having prior Regular Army and Army National Guard honorable enlisted service, the applicant executed two oaths of office and was directly appointed in the DCARNG and as a Reserve commissioned officer of the Army in the rank of 1LT on 4 August 2011. 3. Joint Force Headquarters (JTFH) DCNG Orders Number 214-010, dated 4 August 2011, appointed him a 1LT in the Army National Guard with an effective date of 4 August 2011. His basic branch was JAGC. 4. On 21 February 2012, the NGB published Special Orders Number 55 AR extending him Federal recognition for his initial appointment in the rank/grade of 1LT/O-2 with an effective date of 4 August 2011 and DOR of 4 August 2010. 5. On 3 May 2012 he completed the JAOBC. 6. On 15 June 2012 he completed the Direct Commission Course. 7. JTFH DCNG Orders Number 226-002, dated 14 August 2014, promoted him to CPT with an effective date and DOR of 29 July 2014. These orders state that his effective date of promotion will be determined by a Federal recognition order. In addition he was not to be paid at the higher grade or wear its insignia until Federal recognition was confirmed. 8. On 29 December 2014, the NGB published Special Orders Number 378 extending him Federal recognition for the rank/grade of CPT/O-3 with an effective date and DOR of 23 December 2014. 9. A memorandum from the Chief, Personnel Division, NGB, dated 29 December 2014, promoted the applicant as a Reserve commissioned officer of the Army in the rank of CPT effective 23 December 2014. The memorandum also stated his authorization for pay and allowances was effective 23 December 2014. 10. The applicant provided a series of emails concerning both his initial appointment in the DCNG and his promotion consideration to CPT. Within the emails is an email from the DCNG Deputy Inspector General (IG) wherein it appears his 1LT DOR is incorrect because he should have received 3 years constructive service credit not 1 year as his record currently shows. His CPT DOR and effective DOR were impacted by this error. The DCNG IG stated they could not do any adjustments to his DOR and recommended he apply to this Board. 11. The applicant provided numerous evaluations which do not contain derogatory information and recommended him for promotion. 12. On 8 December 2016, JFHQ DCNG provided a recommendation to the NGB, Personnel Policy and Readiness Division, concerning the applicant's request to adjust his CPT DOR. The opinion states the applicant was eligible for mandatory promotion consideration when he completed the JAOBC on 3 May 2012. Due to improper processing, his promotion packet was delayed 12 months. Normal promotion packet processing should have taken no more than 120 days to process. The DCNG recommends adjusting his CPT DOR to 3 August 2013 to bring him into alignment with his peer group. There is no discussion concerning his effective date of promotion to CPT. 13. In the processing of this case, the Deputy Chief, Personnel Policy Division, NGB, provided an advisory opinion and recommended approval. a. The applicant was appointed as a 1LT into the DCNG, JAGC, on 4 August 2011 with a DOR of 4 August 2010. The applicant states his unit failed to recognize after he completed JAOBC as he was fully eligible for promotion to the rank of CPT. The applicant was granted Federal recognition to the rank of CPT on 23 December 2014 as shown in NGB Special Order Number 378 dated 29 December 2014. b. AR 135-155, Table 2-2, note number 5, explains that JAGC officers appointed with military education stipulations of AR 135-100 will be considered educationally qualified for mandatory promotion consideration, if progressing satisfactorily per AR 27-1. c. AR 27-1, paragraph 10-5(a)(1), lists JAOBC as the required military education requirement for JA positions authorized the grade of O-3 or lower. The applicant successfully completed JAOBC on 3 May 2012. Per AR 135-155 and AR 27-1, the applicant’s completion of JAOBC qualified him for mandatory promotion consideration provided he met all the other criteria. d. The DCNG acknowledges, due to improper processing and knowledge on their part, the applicant's promotion packet was delayed due to no fault of his own. Under the provisions of AR 135-155, NGB recommends approval of the applicant's request for adjustment of his DOR for CPT to 3 August 2013. e. This advisory opinion was coordinated with the Army National Guard Officer Policy Branch and the DCNG concurs with this recommendation. 14. On 5 May 2017, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. 15. On 10 May 2017, the applicant responded to the advisory opinion by stating, in part: a. He understood that the advisory opinion, dated·31 January 2017, recommended approval of his request to adjust his date of rank. The advisory opinion states that he requested an adjustment of his date of rank for CPT/O-3E to 3 August 2013. This statement is incorrect. He requested an adjustment of his DOR for CPT/O-3E to 3 May 2013 because this was the one (1) year anniversary from the date in which he completed JAOBC and became qualified for mandatory promotion consideration. b. It is not clear to him whether this error would require an additional response from the NGB as to whether they would still recommend approval of an adjustment of his date of rank for CPT/O-3E to 3 May 2013. If an additional response from NGB is required, he would waive his request for an adjustment of his date of rank to 3 May 2013, and accept NGB's advisory opinion recommendation of 3 August 2013. c. If the Army Board for Corrections of Military Records (ABCMR) adopts the advisory opinion recommendation, he would respectfully request that the final determination of the ABCMR include a consideration of his entitlement to back pay and allowances for adjustment of his DOR. As NGB's advisory opinion notes, the "DCARNG acknowledges due to improper processing and knowledge, the Soldier's promotion packet was delayed due to no fault of the Soldier.'' In the interest of fairness, he would respectfully request entitlement to back pay and allowances as a result of the adjustment in his DOR. REFERENCES: 1. AR 27-1 prescribes the composition, mission, and functions of the Judge Advocate Legal Service; details responsibilities and explains policies, objectives, and procedures for the development and maintenance of RC JAGC officers; details responsibilities for the supervision, training, employment, and administration of Judge Advocate General Service Organizations (JAGSOs). The Judge Advocate positions authorized the grade of captain or lower require credit for the JAOBC or the Reserve Component Judge Advocate Officer Basic Course (RC-JAOBC). 2. AR 135-100 (Appointment of Commissioned and Warrant Officers of the Army) prescribes policy and procedures for the appointment of commissioned and warrant officers in the Army National Guard of the United States (ARNGUS) and the United States Army Reserve (USAR). * the date of rank of an officer commissioned in the Reserve of the Army and assigned to the JAGC is the date of appointment * the DOR will further be backdated by the period of commissioned service credit awarded, this is in excess of that amount used to establish the officer's appointment grade * constructive service credit is 3 years based on award of the first professional law degree by a law school accredited by the American Bar Association 3. AR 135-155 (effective 13 July 2004) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the ARNGUS and of commissioned and warrant officers of the U.S. Army Reserve (USAR). a. Table 2-2, note 5, states JAGC officers appointed with military education stipulations of AR 135-100 will be considered educationally qualified for mandatory promotion consideration if progressing satisfactorily per AR 27-1. This note does not apply for position vacancy promotion consideration. b. Promotions to CPT and above requires a minimum number of years' time in grade (TIG). If an officer received service credit for prior commissioned service and/or constructive service credit on appointment, the officer’s DOR was determined in accordance with AR 135-100, therefore controlling the computation of the officer’s TIG. c. The DOR in the higher grade to which an officer is appointed will be the date of placement on the Reserve active status list backdated by the amount of time by which the entry grade credit awarded exceeds that used to establish the higher grade. The DOR is the date the officer actually or constructively was appointed or promoted to a specific grade. It is the date used to determine seniority for officers within the same grade. An officer’s DOR will be used to establish the TIG requirements for the next grade. d. Only the Secretary of the Army may determine whether an adjustment must be made to an officer's DOR and effective date of promotion. e. Do not issue the promotion memorandum before the promotion board results are approved and confirmed by the Senate (if required). The effective date of promotion may not precede the date of the promotion memorandum. An officer is promoted after selection if all qualifications for promotion are met. When an officer does not meet the qualifications for promotion, the effective date of promotion will not be earlier than the later date all qualifications are met. In no case, will the date of rank or effective date of promotion be earlier than the date the board is approved, or, if required, the date of Senate confirmation. In addition, the officer must already be assigned/attached to a position in the higher grade. 4. National Guard Regulation (NGR) 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions), dated 15 April 1994, provides the procedures for processing all applications for Federal recognition and promotion of ARNG commissioned officers among other personnel functions. The promotion of officers in the ARNG is a function of the State. As in original appointments, a commissioned officer promoted by State authorities has a State status in the higher grade under which to function. However, to be extended Federal recognition in the higher grade, the officer must have satisfied the requirements for promotion. a. Promotion criteria will be based on efficiency, time in grade, time in commissioned service, demonstrated command and staff ability, military and civilian education, and potential for service in the next higher grade. Promotion will be accomplished only when an appropriate Modified Table of Organization and Equipment or Table of Distribution and Allowances position vacancy in the grade exists in the unit. An ARNGUS officer's years of service for purposes of promotion and federal recognition will be computed in accordance with Title 10, U.S. Code, section 3350. b. ARNG commissioned officers will be mandatorily considered for promotion as Reserve commissioned officers of the Army when they meet minimum promotion service requirements prescribed for the zone of consideration. The provisions of AR 135-155 will apply. To be considered for Federal recognition and subsequent Reserve of the Army promotion following State promotion to fill a unit vacancy, an ARNG commissioned officer must: * be in an active status * be medically fit in accordance with AR 40-501 (Standards of Medical Fitness) * meet the height and weight standards * completed the minimum 2 years of promotion service as a 1LT for promotion consideration to CPT * completed the minimum military education * completed the minimum civilian education * passed an Army Physical Fitness Test within the time frame prescribed c. Under Title 32, U.S. Code, section 307, a board of officers will be convened to determine whether applicants for Federal recognition meet the medical, moral, and professional qualifications to perform the duties of the grade and position for which examined. A commissioned officer who is federally recognized is tendered an appointment as a Reserve commissioned officer of the Army with assignment to the ARNGUS under the provisions of Title 10, U.S. Code, section 3351. d. The Federal Recognition Board will review the records of commissioned officers recommended for promotion. Commissioned officers under consideration will not be required to personally appear before the board unless so desired by the president of the Federal Recognition Board. The board will consider documentary evidence submitted by the officer's commander together with appropriate official files, including medical records, performance evaluation reports, training certificates and academic reports, evidence of civilian education, and other pertinent documents that cite the officer's manner of performance. The board will review each recommendation under guidance provided by the Secretary of the Army regarding standards for promotion of ARNG commissioned officers as Reserve commissioned officers of the Army. ARNG commissioned officers will be mandatorily considered for promotion as Reserve commissioned officers of the Army when they meet minimum promotion service requirements prescribed for the zone of consideration. e. Federal Recognition Board reports will be forwarded from the State to the Chief, NGB. The granting of Federal recognition will be extended by the Chief, NGB to those officers found qualified by the board (circa 1994). 5. Title 10, U.S. Code, section 12203, provides that appointments of Reserve officers in the grades of lieutenant colonel and below shall be made by the President. This authority has been delegated to the Secretary of Defense via executive order. 6. Authority granted to the Secretaries of the Military Departments in Secretary of Defense Memorandum, subject: Redelegation of Authority under Executive Order 12396, dated 9 December 1982, to appoint officers under section 624 of Title 10, U.S. Code, in grades O-2 and O-3 was rescinded effective 1 July 2005 based on advice from the Department of Justice that prohibits redelegation below the Secretary of Defense of the President's authority to appoint military officers. All military officer appointments under Title 10, U.S. Code, section 12203 including original appointments in the Reserve of the Army, Reserve of the Air Force, Naval Reserve, and Marine Corps Reserve, not previously approved by 30 June 2005, shall also be submitted to the Secretary of Defense. 7. Title 10, U.S. Code, section 14308(f), states the effective date of a promotion of a Reserve commissioned officer in the Army who is extended Federal recognition in the next higher grade in the ARNG shall be the date in which such Federal recognition in that grade is so extended. 8. Title 10, U.S. Code, section 741(4)(a), states the Secretary concerned may adjust the date of rank of an officer appointed under section 624(a) of this title to a higher grade that is not a general officer or flag officer grade if the appointment of that officer to that grade is delayed from the date on which (as determined by the Secretary) it would otherwise have been made by reason of unusual circumstances (as determined by the Secretary) that cause an unintended delay in the processing or approval of the report of the selection board recommending the appointment of that officer to that grade; or the processing or approval of the promotion list established on the basis of that report. 9. Title 10, U.S. code, section 1552, states a Secretary of a military department may correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that military department. Except when procured by fraud, a correction under this section is final and conclusive on all officers of the United States. DISCUSSION: 1. By regulation, no officer above the grade of O-2 has a mandatory promotion date. Each officer above the grade of O-2 can be considered by a Reserve of the Army (Headquarters, Department of the Army) mandatory promotion selection board provided they meet all eligibility requirements. Promotions of ARNGUS commissioned officers is a function of the State. Officers above the grade of O-2 must meet basic eligibility criteria and hold a valid unit position in the grade of O-3. After a favorable promotion recommendation by the State, the officer's promotion packet must be reviewed by a Federal Recognition Board. After a favorable recommendation, the board proceedings are forwarded to the Chief, NGB, for disposition to the Secretary of Defense. (Promotion delegation to Secretaries of military departments was rescinded in 2005.) 2. In this case, the applicant was appointed into the ARNGUS and as a Reserve of the Army on 4 August 2011. He received a DOR of 4 August 2010 apparently for constructive service credit of 1 year. (Regulatory guidance specifies 3 years constructive service credit may be awarded for initial appointment of JAGC officers provided they meet the educational requirements of the American Bar Association.) He met the military educational requirements for promotion consideration to CPT upon completion of JAOBC on 3 May 2012. He met the time in service requirement effective 3 August 2013 based on his date of initial appointment. 3. He was promoted to CPT by the DCNG on 29 July 2014 with a State DOR of 29 July 2014. Within his DCNG promotion order it advises him he must wait for Federal recognition before he can wear the insignia and receive pay and allowances at the higher grade. 4. The applicant was granted Federal recognition in the rank and pay grade of CPT/O-3 after a Federal Recognition Board convened to consider his promotion record. His DOR and effective DOR for CPT/O-3 is 23 December 2014 as established by NGB orders. (The processing time from DCNG publishing his State promotion orders to Federal recognition was approximately 5 months.) 5. By memorandum, the DCNG states he should have an earlier DOR due to their administrative errors. The applicant argues he was eligible for mandatory promotion consideration to CPT one year after he completed JAOBC. He completed JAOBC on 3 May 2012. He estimates his CPT DOR and effective DOR to be 3 May 2013. (It appears he did not take into consideration the time in service requirement of 2 years from date of initial appointment.) 6. Promotion of officers in the ARNG is a function of the State while Federal recognition is a function of the Chief of the NGB, Department of the Army and then the Department of Defense as delegated by the President of the United States. (Executive Order 12396 was rescinded on 1 July 2005, wherein the Secretary of Defense cannot redelegate promotion authority to the Secretaries of Military Departments.) As such, the ABCMR authority concerning effective dates of rank is limited by law. Any correction to an officer's promotion effective date would effectively amend the Secretary of Defense's action. 7. The NGB advisory opinion recommends adjusting his DOR to 3 August 2013 which is the date he met the minimum criteria for promotion (JAOBC completion and 2 years' time in service). By adjusting his DOR (for future promotion eligibility) he would retain seniority among his peers for promotion consideration to major. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160015358 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160015358 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2