ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 May 2020 DOCKET NUMBER: AR20180007202 APPLICANT REQUESTS: correction of his date of rank (DOR) to Lieutenant Colonel (LTC)/O-5 from 21 March 2017 to 29 September 2016. APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * National Guard Bureau (NGB) Scroll Removal * Federal Recognition to LTC * Suitability Screening of Unit Vacancy Promotions FACTS: 1. The applicant states his DOR to LTC is 21 March 2017 and he is requesting his DOR be revised to 29 September 2016. He was submitted for a Unit Vacancy Promotion in April of 2016 and was in the scroll process until a suitability screening in September. He was found to be subject of an open Inspector General (IG) complaint from a deployment in 2013 through 2014. He was pulled from that scroll and his case was adjudicated in about 15 days, but the scroll he was on was advanced and he was put onto a later scroll. He was told the IG cases were backlogged and in many cases they didn't get actioned until they caused someone to fail a suitability screen. His opinion is that since the IG case was from 2013 to 2014, it should have been investigated and resolved prior to causing him to be removed from a scroll two years later. The scroll he was originally on was signed by the Secretary of Defense on 29 September 2016. The scroll he was promoted on was effective 21 March 2017. This cost him 5 months and 21 days, and based on the typical cutoff of 30 September for date of rank for LTC to Colonel (COL) promotion board, this could delay his promotion by a year when it comes time for him to go to a Department of the Army (DA) for promotion to COL. 2. The applicant's service records contain Orders 089-019, published by Joint Force Headquarters, Maine National Guard, dated 29 March 2016 which transfer the applicant from the S-3 Operations Officer to the Deputy Commander in his unit. 3. The applicant's service records are void of any derogatory information, the results of the IG investigation, and when his promotion packet for LTC was submitted before the board in 2016. 4. The applicant provides the following documents for the Board's consideration: a. A memorandum from NGB, dated 21 September 2016 which states a screening of the Army National Guard (ARNG) Federal Recognition Presidential List revealed the applicant was the subject of an ongoing Department of the Army IG (DAIG) investigation. The applicant was removed from the scroll and his promotion could not be processed until the unfavorable information was adjudicated. b. Special Orders Number 65, published by NGB, dated 5 April 2017 promoting the applicant to LTC with an effective date and DOR of 21 March 2017. c. An Information Paper subject Suitability Screening of Unit Vacancy Promotions, dated 25 July 2016, which states: (1) The DAIG recommends promotion recommendations be returned to the State without action when there is an open IG investigation against the individual or there is closed investigation which warrants an administrative oversight review Administrative oversight reviews are conducted on closed IG investigation with findings of not substantiated as well as substantiated. The DAIG has established an average timeline of 120 days to conduct. In both instances, there is an approximately 99 percent clear rate. This means that upon completion of the oversight review, the state may submit a new promotion packet for the officer and the individual begins the process at the first step. (2) Officers with open CID investigations or investigations in which no command action or final adjudication is indicated will be returned without action. CID is not under any time limitations thus it can take several months or years to complete investigations. Officers are encouraged to work with local CID officers and the State Judge Advocate General Officer to clear CID investigations. Upon favorable resolution, the state may submit a new promotion packet for the Officer and the individual begins the process at the first step. 5. In the processing of this case, an advisory opinion was obtained on 21 January 2020, from the Chief, Special Actions Branch, NGB. The advisory recommended partial approval of the applicant's request. After review of the applicant's records and discussion with the Federal Recognition Branch, they concluded the initial packet was submitted to the Federal Recognition Branch on 13 April 2016 and later removed by the NGB Suitability Team on 19 September 2016. The applicant's packet was initially flagged and removed due to possible derogatory information that could prevent his promotion. Once the Suitability Team and the state cleared him and pronounced him eligible for promotion, the packet was completed and assigned to a scroll with a DOR and effective promotion date of 21 March 2017. The Federal Recognition Branch acknowledges the delay on the applicant's Federal Recognition packet and agrees he should be assigned to a scroll P11-6 with a DOR and effective date of 14 November 2016. The Federal Recognition Branch also concludes the applicant was never assigned to scroll P10-16 therefore does not agree with the applicant's conclusion he should be assigned a DOR of 29 September 2016. A copy of the complete advisory opinion has been provided to the Board for their review and consideration. 6. The applicant was provided a copy of this advisory opinion on 21 April 2020, to provide him an opportunity to comment and/or submit a rebuttal. He responded on 4 May 2020, and stated he was sending an email in response to his ABCMR case. He also sent supporting documents to support his request and to show he was on scroll PL10-16. 7. The applicant provides the following supporting documents with his response to the advisory for the Board's consideration: a. An email from an employee at NGB, dated 1 May 2020, which states the comments in the eTracker had the incorrect removal scroll for the applicant. The applicant was removed from scroll P10-16 and placed on scroll PL11-16 which he was approved on. The employee needed to go into the eTracker and correct the comments. b. A self-authored memorandum Subject: Response to Advisory Opinion, dated 29 April 2010, which states: (1) The applicant requests his case be reviewed more closely because the advisory provided doesn't match the supporting documentation he received during the board process. The memorandum he received, dated 21 September 2016, notified him he had been removed from the scroll and stated in line 2 that "a screening of the ARNG federal Recognition Presidential List (PL 10-16) revealed the applicant was the subject of an ongoing DAIG investigation." (2) The supporting documentation that was attached to the scroll removal memorandum was a report from DAIG and is dated 12 August 2016. He is listed on the document along with another Soldier whose information was redacted. (3) The advisory received from NGB states his packet began the process of Federal recognition on 13 April 2016 and on 25 May 2015 the packet was assigned to scroll 11-16. He doesn't believe that was possible based on the dates of the scrolls. Based on the information he received from the Federal Recognition Section Chief, he was on the P10-16 Scroll and she was going to correct the information in the eTracker to show scroll 10-16 instead of 11-16. (4) Scroll PL 10-16 was approved by the Secretary of Defense on 29 September 2016. He believes that is the date he should have as his DOR and effective date of rank. This is important to him because this DOR will make him eligible to go to the Colonel board a year earlier than if his DOR remained as is. He thanks the Board for their consideration of his request for a further review. c. A NGB memorandum dated 21 September 2016, which was included with his application and states a screening of the ARNG Federal Recognition Presidential List PL 10-16 reveled the applicant was the subject of an ongoing DAIG investigation. d. A document subject referred for derogatory information, which was included with his application. 8. See applicable references below. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The Board also considered the findings of the NGB advisory opinion. The Board found that the applicant was initially included on a scroll, removed administratively and ultimately placed on the next scroll for promotion to LTC. The Board found that had he remained on the original scroll, that scroll was approved on 29 September 2016. The Board found that the delay was not due to the fault of the applicant and that a correction to his date of rank was necessary to correct an injustice. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XXX :XX :XXX 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 records of the individual concerned be corrected by adjusting the applicant’s date of rank to LTC effective 29 September 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. Title 10, section 14308(f) (Effective date of promotion after Federal Recognition), states 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. 2. National Guard Regulation (NGR) 600-100 provides procedures for processing applications for Federal Recognition. Paragraph 10-15b states that temporary Federal Recognition may be granted by an FRB to those eligible when the board finds that the member has successfully passed the examination prescribed herein, has subscribed to the oath of office, and has been appointed by a State order for assignment to a position vacancy in a federally recognized unit of the ARNG. The FRB will forward the NGB Form 89 and allied documents to The Adjutant General. When the member is favorably recommended, The Adjutant General will endorse the packet to the NGB. If the member meets the qualifications and requirements for Federal Recognition, the Chief, NGB extends permanent Federal Recognition to the member in the grade and branch in which the member is qualified. 3. The ABCMR may correct an officer's date of rank/effective date of rank when a proper appointment has already occurred. a. Title 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. 4. Army Regulation 135-155 (Army National Guard and US Army Reserve Promotion of Commissioned Officers and Warrant Officers), which states: a. If an officer selected by a mandatory promotion board has the maximum TIG date that is before the approval date of the board, the officer's promotion date and effective date will be no earlier than the date of approval of the mandatory board by which recommended or the date of Senate confirmation. b. If an officer is selected by a promotion advisory board/special selection board, the officer's date of rank and effective date for pay and allowances would be the same as if the officer had been recommended for promotion to the grade by the mandatory board that should have considered, or that did consider, the officer. Therefore the officer may have a maximum TIG date that is before the approval date of the promotion advisory board/special selection board that recommended the officer for promotion. ABCMR Record of Proceedings (cont) AR20180007202 5