BOARD DATE: 14 April 2020 DOCKET NUMBER: AR20170013504 APPLICANT REQUESTS: a change in his Date of Rank (DOR) to Captain (CPT) to March 2017. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Federal Recognition Packet Status FACTS: 1. The applicant states: a. He is requesting his DOR for promotion to CPT be moved back to March 2017 when his scroll for Federal Recognition should have been approved and signed by the Secretary of Defense. He was on scroll P03-17 which was eventually signed by the Secretary of Defense on 8 August 2017. The scroll should have been signed in March 2017 but was delayed for over 5 months at the Judge Advocate General's office due to some Soldiers who were on the same scroll being found to have flagging actions against them. This held up all names on the scroll and delayed their promotions and time in grade by over 5 months (133) days. b. Scroll P03-17 should have been signed off in in March of 2017, but instead was passed over by scrolls 04-17, 05-17, 06-17 and 0717 which all moved forward and were approved in a timely manner. This delay was through no fault of his own and has been an injustice to his career progression. 2. The applicant's service record contains a memorandum from National Guard Bureau (NGB), dated 23 August 2017, which shows the applicant was promoted to Captain effective 8 August 2017. 3. The applicant's service record is void of any disciplinary or adverse information. 4. The applicant provides a printout entitled Federal Recognition Packet Status, which gives a time line and status of the applicant's federal recognition packet for promotion to CPT. 5. On 2 March 2020 NGB at the request of the ARBA provided an Advisory Opinion regarding the applicant’s request for an adjustment in his CPT DOR to reflect March 2017. The Chief, Special Actions Branch states he recommends partial approval. It was recommended for the DOR and effective date of promotion to be adjusted to no earlier than 1 June 2017. The opinion was coordinated with the Army National Guard Federal recognition section. A copy of the complete advisory opinion has been provided to the Board for their review and consideration. 6. On 6 March 2020 the applicant was provided with a copy of the advisory opinion obtained from the NGB and given the opportunity to submit comments. He did not respond. 7. See all applicable regulatory guidance below. BOARD DISCUSSION: 1. The effective date of promotion is established under law by Title 10, U.S. Code and is approved by the SECDEF. This Board, acting under the authority of the Secretary of the Army, does not have the authority to effect promotion of officers. However, for administrative purposes, such as time in grade for promotion consideration, this Board may adjust an officer's DOR when an injustice occurs. 2. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The Board also considered the review and findings of the NGB advising official. Based upon the preponderance of the evidence provided, this Board agreed the authority to promote service members exceeds their authority, however, authority to remedy errors or injustices in reference to dates of rank and effective dates of rank for pay and allowances affecting promotions is given to the Service Secretaries. As such, the ABCMR possesses the authority to adjust the effective date of rank/promotion in this case. The Board agreed that there was sufficient documentation to grant partial relief and amend the effective date of rank to CPT to 1 June 2017. 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 adjusting the applicant’s date of rank to CPT effective 1 June 2017. 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 rank to March 2017. 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 (NGR) 600-100 (Commissioned Officer Federal Recognition and Related Personnel Activities) states Appointment as a Reserve commissioned Officer of the Army. Upon being federally recognized, a commissioned Officer who does not hold an appointment as a Reserve commissioned officer of the Army shall be appointed a Reserve officer of the Army in the same grade in which the Officer holds a federally recognized appointment in the ARNG and concurrently shall become a member of the ARNG. Officers who have attained status as Reserve commissioned Officers of the Army with assignment to the ARNG may be transferred in grade to the Army Reserve with the consent of the Governor or other appropriate authority of the State, under such regulations as the Secretary of the Army may prescribe. Unless an ARNGUS Officer is discharged from the Reserve of the Army concurrent with withdrawal of Federal recognition, the Officer becomes a member of the Army Reserve upon separation from the ARNG. An ARNGUS Officer's years of service for purposes of promotion and federal recognition will be computed in accordance with Title 10, USC, section 3350. Such service is generally computed by adding all service that the Officer has or is credited by the Secretary of the Army with having, in grade in the Army, or at the discretion of the Secretary of the Army, any other armed force, while in an active status or as a regular officer on the active list of that service, or on the active duty list of the U.S. Army. 2. Title 10 USC 624 (Promotions: how made) states, in pertinent part, a promotion list is considered to be established under this section as of the date of the approval of the report of the selection board under the preceding sentence. Promotions shall be made in the order in which the names of officers appear on the promotion list and after officers previously selected for promotion in that competitive category have been promoted. a. Under regulation prescribed by the Secretary of Defense, the appointment of an officer may be delayed if: (1) Sworn charges against the officer have been received by an officer exercising general court-martial jurisdiction over the officer and such charges have not been disposed of; (2) An investigation is being conducted to determine whether disciplinary action of any kind should be brought against the officer; (3) A board of officers has been convened under chapter 60 of this title to review the record of the officer (4) A criminal proceeding in a Federal or State court is pending against the officer; or (5) Substantiated adverse information about the officer that is material to the decision to appoint the officer is under review by the Secretary of Defense or the Secretary concerned. (6) If no disciplinary action is taken against the officer, if the charges against the officer are withdrawn or dismissed, if the officer is not ordered removed from active duty by the Secretary concerned, if the officer is acquitted of the charges brought against him or if, after a review of substantiated adverse information about the officer regarding the requirement for exemplary conduct, the officer is determined to be among the officers best qualified for promotion, as the case may be, then unless action to delay an appointment has also been taken, the officer shall be retained on the promotion list including an approved all-fully-qualified-officers list, if applicable and shall, upon promotion to the next higher grade, have the same date of rank, the same effective date for the pay and allowances of the grade to which promoted and the same position on the active-duty list as he would have had if no delay had intervened, unless the Secretary concerned determines that the officer was unqualified for promotion for any part of the delay. b. Under regulations prescribed by the Secretary of Defense, the appointment of an officer under this section may also be delayed in any case in which there is cause to believe that the officer has not met the requirement for exemplary conduct as applicable, or is mentally, physically, morally, or professionally unqualified to perform the duties of the grade for which he was selected for promotion. If it is later determined by a civilian official of the Department of Defense that the officer is qualified for promotion to such grade and, after a review of adverse information regarding the requirement for exemplary conduct the officer is determined to be among the officers best qualified for promotion to such grade, the officer shall be retained on the promotion list and shall, upon such promotion, have the same date of rank, the same effective date for pay and allowances in the higher grade to which appointed, and the same position on the active-duty list as he would have had if no delay had intervened. c. An appointment of an officer may not be delayed under this subsection for more than six months after the date on which the officer would otherwise have been appointed unless the Secretary concerned specifies a further period of delay. An officer's appointment may not be delayed more than 90 days after final action has been taken in any criminal case against such officer in a Federal or State court, more than 90 days after final action has been taken in any court-martial case against such officer, or more than 18 months after the date on which such officer would otherwise have been appointed, whichever is later. 3. Title 10 USC 741 (Rank: commissioned officers of the armed forces), states in pertinent part: a. 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 it would otherwise have been made by reason of unusual circumstances as determined by the Secretary that cause an unintended delay. b. The adjusted date of rank applicable to the grade of an officer shall be consistent with the officer's position on the promotion list for that grade and competitive category, when additional officers in that grade and competitive category were needed; and with compliance with the applicable authorized strengths for officers in that grade and competitive category. c. The adjusted date of rank applicable to the grade of an officer shall be the effective date for the officer's pay and allowances for that grade; and the officer's position on the active-duty list. 4. Title 10 USC 14308 (Promotions: how made) states in pertinent part, promotions shall be made in the order in which the names of officers appear on the promotion list and after officers previously selected for promotion in that competitive category have been promoted. The effective date of a promotion of a reserve commissioned officer of the Army who is extended Federal recognition in the next higher grade in the Army National Guard shall be the date on which Federal recognition in that grade is so extended. 5. Title 10 10 USC 14308(f), amended as part of the FY19 NDAA (enactment date: 13 August 2018), provides the Secretary of the Army the authority to adjust the effective date of a reserve commissioned officer's promotion where undue delay in the Federal Recognition process has occurred. The FY19 NDAA also specifically states that the effective date of the amendment is the date of the enactment of the FY19 NDAA (i.e., 13 August 2018) "and shall apply with respect to promotions of officers whose State effective date is on or after that date." Therefore, this authority is only valid for promotions on or after 13 August 2018 (i.e., the enactment of the FY19 NDAA). ABCMR Record of Proceedings (cont) AR20170013504 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1