IN THE CASE OF: BOARD DATE: 14 June 2018 DOCKET NUMBER: AR20170009459 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X X: :X DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 14 June 2018 DOCKET NUMBER: AR20170009459 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, in effect, a correction to his effective date of rank (DOR) for promotion to major (MAJ) in the Guam Army National Guard (GUARNG) from 19 January 2017 to 6 June 2014. 2. The applicant states that this correction should be made for the following reasons: a. His pay and allowances should be effective 6 June 2014, the same day as his the Department of Army (DA) Promotion Board eligibility and Federal Recognition (FedRec). b. The DA allocates funding for the number of field grade officers approved by the DA promotion board; therefore, funding should not be an issue. c. He was serving as the contracting officer, in an O-4 position, at the time of the DA Board eligibility. Subsequently, in May 2015, he was dual hatted as Contingency Contracting Team (CCT) Team Leader, which is also an O-4 position. This reflects the capacity and responsibility, which he held, at the time of DA promotion selection date. To this date, he currently holds both positions. d. Initially, his State orders were sent to the National Guard Bureau (NGB) with an effective DOR of 6 June 2014 but were returned by NGB stating that position did not become available until 19 January 2017. The State argued the matter to NGB but no change occurred. Therefore, rather than delay his promotion any further, the State changed the effective DOR, knowing the issue would be appealed through the Army Board for Correction of Military Records (ABCMR) at a later time. 3. The applicant provides: * Joint Force Headquarters (JFHQ)-Guam Orders 019-02, dated 19 January 2014 * JFHQ–Guam Orders 118-05, dated 28 April 2014 * U.S. Army Human Resources Command (HRC) Promotion Lists for Fiscal Year (FY) 2014, MAJ, Army Promotion List (APL), Army Reserve Active Guard Reserve (AR-GR), Army Reserve Non-Active Guard Reserve (AR- Non-AGR) and ARNG of the United States with by name list * JFHQ-Guam Orders 062-04, dated 3 March 2015 * After Action Report for the Captain (CPT) – MAJ Control Grade Authorization (CGA), Order of Merit List (OML) Promotion Board for FY 2015, dated 17 March 2015 * After Action Report for the CPT-MAJ APL, OML Board for FY15 with final score sheet, dated 17 March 2015 * JFHQ-Guam Orders 112-01, dated 22 April 2015 * NGB Special Orders Number 35, dated 14 February 2017 * NGB promotion memorandum, dated 14 February 2017 * Additional information to support [applicant's name] request for correction of Military Records, dated 14 November 2017 with 4 enclosures * The Adjutant General (TAG) Summary Sheet * Promotion transaction log for the period 1 March 2013 to 14 February 2017 * two Field Grade Plate Officer Evaluation Reports (OER) for the period 27 February 2014 through 26 February 2016 CONSIDERATION OF EVIDENCE: 1. The applicant is currently serving as a MAJ the GUARNG. 2. On 6 June 2014, he was selected for promotion to MAJ by the FY14 MAJ APL (RC) Selection Board. He provides OERs and military orders showing he was assigned to an O-4 position at the time of his promotion. 3. He was promoted to MAJ on 6 June 2014 and granted Federal recognition on 19 January 2017. 4. The applicant provides the following information for consideration by the Board: a. As of his DOR, 6 June 2014, the GUARNG did not have a policy allowing unit vacancy promotions over DA promotion board selectees. b. Five O-4 control grades became available after he was selected for promotion by the DA Army promotion board. Of the five control grades, one was utilized to promote MAJ VG in June 2014. At the time, no other officer, other than himself were assigned and eligible for promotion to MAJ. c. He provides a Timeline of events, After Action Reports, a promotion transaction log, and spreadsheets which he contends show that there were several control grades available between 6 June 2014 and 19 January 2017; however, they were utilized for other officers. 5. In the processing of this case an advisory opinion was obtained from the NGB, Personnel Policy Division which recommends disapproval of the applicant's request to adjust his effective DOR. This recommendation stated: a. The Soldier was boarded and selected for promotion during the FY14 MAJ APL Board. Also, he was in various O-4 positions since 2012 (at the time, working above his pay grade). Despite being selected and residing in an O-4 billet, the NGB's Personnel Programs, Manpower, and Resources Division reports that the control grade was not available until 19 January 2017. b. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General officers), 4-21d states that "AGR officers selected by a mandatory board will be promoted provided they are assigned/attached to a position in the higher grade. An AGR officer who is selected for promotion by a mandatory promotion board, but who is not assigned/attached to a position in the higher grade will be promoted on the date of assignment/attachment to a higher graded position or the day after release from AGR status." Additionally National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions), chapter 8-1 states that "the promotion of officers in the ARNG is a function of the State." c. Although Army Regulation 135-155 uses specific language for assignment to "position" at the next higher grade to align with promotion, the implicit meaning for an AGR officer includes the requirement for a control grade as well. In other words, there must be fiscal resources to pay the officer at their rank granted by the promotion, not only a position to fill. Without financial support, there is no means to grant the Soldier's promotion and fulfill all requirements (including pay). That being said, there was evidence provided by the Guam G1 showing there were other control grades available prior to the Officer's promotion, but Guam elected to exercise the control grades in a manner they deemed appropriate to manage their forces. This explains how the control grade for the Officer was not available until 19 January 2017. d. The NGB, Officer Policy branch concurred with this recommendation. e. The GUARNG did not provide input to this recommendation. 6. The applicant was provided a copy of the advisory opinion for comment. He did not respond. REFERENCES: 1. National Guard Regulation 600-100 states in: a. Paragraph 8-11c that if a commissioned officer has been selected for promotion by HQDA board convened under mandatory selection criteria, the State may promote the officer under unit vacancy criteria prior to the mandatory promotion eligibility date. The requirement to conduct the Federal Recognition Board is waived if the unit vacancy promotion is in the same branch and AOC as for which the officer received mandatory promotion selection; and b. Paragraph 8-12 that a memorandum of recommendation from the applicant's immediate commander, properly endorsed by all commanders concerned and by the Adjutant General is sufficient copies is required to promote officer who are to fill unit vacancies. 2. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) states, in part, that the effective date of promotion for commissioned officers may not precede the date on which the promotion memorandum is issued and the promotion memorandum will not be issued before the date the promotion board results are approved and confirmed by the Senate (if required). In addition, the officer must be assigned or attached to a position in the higher grade. DISCUSSION: 1. The applicant requests correction of his effective DOR to MAJ from 19 January 2017 to 6 June 2014. 2. The applicant was DA selected for promotion to MAJ on 6 June 2014. He provides evidence to show he was serving in an O-4 position at the time of his promotion and that he continued to serve at that level. He contends that he was not promoted despite the availability of control grade vacancies. He contends that the GUARNG's failure to utilize any of the available control grade vacancies to promote him delayed the effective date of his promotion to 19 January 2017. 3. The evidence provided by the applicant clearly shows that there were control grades available at the time of his selection by a DA promotion board and the NGB advisory opinion confirms the availability of control grades. However, the Guam G1 elected to exercise the control grades in a manner they deemed appropriate to manage their forces. 4. By law and regulation, promotion of ARNG officers is a function of the State and the effective date of those officers promoted in the State will be the date the Chief, NGB extends Federal recognition. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170009459 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170009459 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2