ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:    17 April 2019

	DOCKET NUMBER:  AR20170004287


APPLICANT REQUESTS:  her date of rank to Captain (CPT) be back dated. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Application Information Paper dated 10 March 2017

FACTS:

1.  The applicant states to no fault of her own, her promotion to the rank of CPT was held up because of an administrative error on the part of the Human Resource (HR) staff at her unit.  Her promotion packet should have been sent to the National Guard Bureau (NGB) in April of 2015.  She would have been promoted whenever the next scroll was signed for those promoted on or about April 2015.  Instead the administrative error on the part of the unit caused her packet to be delayed almost a year, therefore she was not promoted to CPT until November 2016. 

2.  The applicant provides an information paper outlining the timeline associated with her contention as follows:

     a.  On 24 January 2014, she was commissioned as a First Lieutenant (1LT) in JAG (Judge Advocate General) Corp with one year time in grade, but the system was not updated to reflect her year of constructive credit which caused the initial promotion eligibility review stating she did not have the minimum time in grade (24 months) until 2016. 

     b.  on 12 May 2015, special order 95 was generated granting the applicant federal recognition (1LT, JAG) with an effective date of 24 January 2014 and a date of rank                24 January 2013 date to the constructive credit; therefore making her eligible for promotion to CPT on 24 January 2015.

     c.  Arriving to her first assignment, the 38th ID as special staff section within the JAG section, the applicant was informed promotions to CPT were different than other sections, in that promotions were based on unit vacancies.  She was immediately slotted in a CPT position.  

     d.  She completed JAG Officer Basic Course (JAOBC) February 2015.  At the conclusion of JAOBC, the applicant returned to her unit and began inquiring about her promotion to CPT.

     e.  The applicant spoke with the Division HR Chief and was instructed to provide a copy of her time in grade letter and her promotion packet would be forwarded.  She forwarded a copy of her time in grade letter to the Division HR Chief the same day.

     f.  The applicant checked her Federal Requisition Status online monthly.

     g.  During December 2015/ January 2016, the applicant reports there was no change to her status at which time she realized there was an issue.

     h.  The applicant’s leadership inquired into the matter and were told the applicant's promotion packet had not been forwarded to NGB. The applicant needed to turn in her time in grade letter along with an endorsement from her leadership due to a change in promotion policy. 

     i.  The applicant contacted the Division HR Chief who admitted to the error.

     j.  On February 2016, the applicant's promotion packet was forwarded, showing a desired promotion effective date of 1 March 2016.

     k.  On March 2016, the applicant's promotion packet was returned to the state from NGB because of an administrative error by the Division HR section

     l.  On July 2016, the applicant received an email she was on the scroll for promotion.

     m.  14 November 2016 was the applicant’s date of rank to CPT and the promotion effective date to CPT as stated in Special Orders Number 250 

4.  On 5 December 2017 G1 Officer Personnel Management Indiana National Guard provided a Memorandum For Record (MFR) for input to the applicant's ABCMR case.  The MFR shows the state’s process for unit vacancy promotions:  Officer must meet time in grade requirements, command must review the officers records, compile necessary documents and submit the officer promotion, once the promotion packet is sent through all level of command, states receives the packet and is placed on a State Leadership Officer Career Board (OCB), once approved by the OCB, the packet is reviewed by the State Federal Recognition Process, this can take an upward of 7-9 months. The MFR concluded there was a date of rank error in the system, however the correction was made in a timely manner once the officer was submitted for promotion by the command. 

5.  On 23 April 2018, the National Guard Bureau Chief, Special Actions Branch provided an Advisory Opinion based on the applicant requesting backdate of her date of rank and effective date for her promotion to  CPT to reflect an earlier scroll.  

     a.  The National Guard Bureau Chief, Special Actions Branch recommended partial approval.  They determined an administrative delay and misinformation led to a delay in the processing of the applicant's promotion packet. 

     b.  It was determined the applicant met all requirements for promotion to CPT when she completed JAOBC in February 2015 and the applicant believed she provided the required documents to initiate her promotion packet.  Had the applicant's promotion packet been submitted in a timely manner the applicant would have likely been assigned to scroll number P15-15 which was sent for scrolling on 2 June 2015 and subsequently approved on 9 November 2015.

     c.  The National Guard Bureau Chief, Special Actions Branch recommended the applicant's date of rank for CPT be adjusted to 9 November 2015 and the effective date for her promotion remain 14 November 2016.  When asked for clarification on the differences in dates, the National Guard Bureau Chief, Special Actions Branch did not provide a response.

6.  Army Regulation 135-155 (Army National Guard and U.S. Army Reserve Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) shows the criteria for promotion requires the position vacancy must be in the next higher grade, have completed the minimum time in grade prescribed for promotion to the next higher grade by the day before the convening date of the board, and be educationally qualified. 

7.  The ABCMR may correct an officer’s date of rank/effective date of rank when a proper appointment has already occurred.  
   a.  10 USC 624 and 741 provide for situations in which properly appointed officers are provided "backdated" dates of rank 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 (23 August 2013) provides that a Service Secretary may "adjust the date of rank 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.
BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that partial relief was warranted.  Based upon the enclosed NGB advisory opinion find that there was an administrative delay and misinformation which led to a delay in the processing of the applicant’s promotion packet, the Board recommended  changing the date of rank of the applicant to 9 November 2015 and the effective date for her promotion remain 14 November 2016.  For that reason, the Board recommended partial relief of the applicant’s request.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

X	X	X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION




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 her date of rank to Captain to 9 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 the effective date of promotion to Captain.

	 
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.



REFERENCES:

1.  Army Regulation 135-155 (Army National Guard and U.S. Army Reserve Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the Army National Guard of the United States (ARNGUS) and of commissioned and warrant officers (WO) of the U.S. Army Reserve (USAR).  Commissioned officers appointed to or from assignment to the Army Medical Department (AMEDD), Chaplains (CH), and the Judge Advocate General’s Corps (JAGC) will not be promoted if, before promotion, the officer receives a new original appointment with assignment to a branch other than the branch or corps to which assigned when considered for promotion. Promotion to fill authorized troop program unit (TPU) position vacancies may be filled through promotion of the best
qualified, geographically available officers to the grades CW3, CW4, and CPT through COL, as prescribed below. The USAR TPU position vacancy boards will normally be held twice a year. Criteria for promotion:  the position vacancy must be in the next higher grade, have completed the minimum TIG prescribed for promotion to the next higher grade by the day before the convening date of the board, be educationally qualified, JAGC officers can be considered for promotion to fill vacancies only within their respective branches.  Only JAGC officers selected for JAGC assignments in compliance with AR 140-10, will be submitted for consideration for JAGC position vacancy promotions. TPU commander approval is not required when JAGC officers
are approved by TJAG for JAGC assignments or command positions for the grades of LTC and COL. However, commanders must comply with AR 140-10.
(4) Unless otherwise included in an eligible officer’s official file, a photocopy of the document establishing the officer’s civilian and military educational qualification must be forwarded to the area commander.

2.  The ABCMR may correct an officer’s date of rank/effective date of rank when a proper appointment has already occurred.  
   a.  10 USC 624 and 741 provide for situations in which properly appointed officers are provided "backdated" dates of rank 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 (23 August 2013) provides that a Service Secretary may "adjust the date of rank 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.


ABCMR Record of Proceedings (cont)	 AR20170004287
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