ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 April 2019 DOCKET NUMBER: AR20170008146 APPLICANT REQUESTS: * adjustment of his date of rank (DOR) and effective date of promotion to second lieutenant (2LT) in the Army National Guard (ARNG) from 29 November 2016 to 19 October 2016 * back pay and allowances APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter of Endorsement, dated 10 January 2016 FACTS: 1. The applicant states that due to an issue with his appointment date, he was paid cadet pay (sergeant (SGT)/E-5) from 19 October 2016 to 28 November 2016 and requests reimbursement of pay and entitlements for this time period. He graduated Officer Candidate School (OCS) on 18 October 2016 and immediately reported to the Infantry Basic Officer Leadership Course (IBOLC) and began training. Due to an administrative failure, he did not receive his appointment by the Federal Recognition Board (FRB) until 29 November 2016. 2. The applicant provides a memorandum of endorsement by the Director of Military Personnel for the NYARNG. The memorandum requests favorable consideration to adjust the appointment date for the applicant from 29 November 2016 to 19 October 2016. a. He states the applicant graduated OCS on 18 October 2016. Due to an administrative failure, they did not receive his appointment packet until 4 November 2016. The applicant was boarded by the next FRB on 29 November 2016 and appointed him to 2LT. In accordance with National Guard Regulation (NGR) 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions) paragraph 10-15(b)(3), the applicant’s date of appointment is based on the board date of 29 November 2016. b. The applicant reported to IBOLC directly from OCS. Due to the issue with his appointment date, he was paid SGT/E-5 cadet pay from 19 October 2016 to 28 November 2016. Request reimbursement of pay and entitlements for this time period. 3. A review of the applicant’s service records shows the following: a. The applicant enlisted in the ARNG on 17 February 2016. b. He completed OCS and was honorably released from active duty on 17 October 2016. c. On 18 October 2016, he completed DA Form 71 (Oath of Office – Military Personnel). d. On 29 November 2016, he again completed DA Form 71. e. The National Guard Bureau (NGB) published Special Orders Number 43, dated 2 March 2017 extending him Federal recognition for initial appointment to 2LT with a DOR and effective date as 29 November 2016. f. On 9 March 2017, he was honorably released from active duty after completing IBOLC. g. The NGB published Special Orders Number 252, dated 4 October 2018 extending him federal recognition for promotion to first lieutenant (1LT) with a DOR and effective date as 29 May 2018. 4. The NGB reviewed his case and rendered an advisory opinion on 22 May 2018. The Chief, Special Actions Branch opined: a. On 17 October 2016, the applicant, then Officer Candidate, completed the requirements of instruction prescribed by the NYARNG OCS. He signed a DA Form 71 as well as a NGB Form 337 (Oaths of Office), unfortunately the NYARNG did not endorse either form until 4 November 2016. b. The applicant received his Federal recognition as a 2LT on 2 March 2017, with an effective date and date of rank of 29 November 2016 based on Special Order Number 43. In accordance with National Guard Regulation (NGR) 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions, chapter 2, paragraph 2-2(b), the effective date of Federal recognition for original appointment is that date on which the commissioned officer executes the oath of office in the State. c. Recommend approval based on the fact that the applicant did complete the requirements to be commissioned as a 2LT, the NYARNG did not conduct a FRB to appoint him as an officer until 4 November 2016 due to administrative errors. NGB recommends his DOR of 2LT be 19 October 2016. d. The NGB Federal Recognition Branch concurs with this recommendation. The NYARNG concurs with this recommendation. 5. The applicant was provided with a copy of this advisory opinion to give him an opportunity to respond. He responded on 17 January 2019 and concurred with the NGB advisory opinion and his DOR as 19 October 2016. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was warranted. Based upon the documentary evidence provided by the applicant and the recommendations from both the NGB and NYARNG, the the Board found there was an injustice that supported making a change to the applicant’s date of rank. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for 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: amending Special Orders Number 43, dated 2 March 2017 extending him Federal recognition for initial appointment to show the effective date of rank and effective date of his promotion to second lieutenant as 19 October 2016 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. National Guard Regulation 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions), in effect at the time, provides procedures for processing all applications for Federal recognition. Paragraph 2-2(b) states the effective date of Federal recognition for original appointment is that date on which the commissioned officer executes the oath of office in the State. 2. Title 10 U.S. Code, section 624 (Promotions: how made) states, in pertinent part, 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. 3. Title 10 U.S. Code, section 741 (Rank: commissioned officers in the armed forces), states, in pertinent part, 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 (i) the processing or approval of the report of the selection board recommending the appointment of that officer to that grade; or (ii) the processing or approval of the promotion list established on the basis of that report. 4. Title 10 U.S. Code, section 14308 (Promotions: how made) provides: a. The effective date of a promotion of a reserve commissioned officer of the Army or the Air Force who is extended Federal recognition in the next higher grade in the Army National Guard or the Air National Guard under section 307 or 310 of title 32 shall be the date on which such Federal recognition in that grade is so extended. b. If the Secretary concerned determines that there was an undue delay in extending Federal recognition in the next higher grade in the Army National Guard or the Air National Guard to a reserve commissioned officer of the Army or the Air Force, and the delay was not attributable to the action (or inaction) of such officer, the effective date of the promotion concerned under paragraph (a) above may be adjusted to a date determined by the Secretary concerned, but not earlier than the effective date of the State promotion. 5. Department of Defense Instruction 1310.01 (Rank and Seniority of Commissioned Officers) provides that The Secretary of the Military Department concerned may adjust the date of rank of an officer, except a general or flag officer, appointed to a higher grade under Title 10 U.S. Code, section 624(a) or 14308(a) if the appointment of that officer to the higher grade is delayed by unusual circumstances. The Secretary of the Military Department concerned must determine that the unusual circumstance caused an unintended delay in processing or approval of the selection board report or promotion list in order for an officer’s date of rank to be adjusted and will notify the Under Secretary of Defense for Personnel and Readiness (USD(P&R)) of adjustments exercised under this authority. The notification will include the name of the officer(s) and a discussion of the reasons for the adjustment of the date of rank. ABCMR Record of Proceedings (cont) AR20170008146 4 1