DEPARTMENT OF THE ARMY ARMY REVIEW BOARDS AGENCY 251 18TH STREET SOUTH, SUITE 385 ARLINGTON, VA 22202-3531 SAMR-RB 26 June 2019 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for , SSN , AR20180008200 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 18 January 2019, in which the Board majority recommended fully granting the applicant’s request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant only partial relief. In this case, the authority of the ABCMR to adjust the effective date of promotion of a reserve commissioned officer in the Army National Guard, who claims that his extension of Federal recognition was adversely impacted by undue delay, is statutorily limited to cases where the State effective date is on or after 13 August 2018. The applicant’s state promotion effective date was 28 February 2017. Thus, relief in the form of an adjustment to his effective date of promotion is precluded as a matter of law. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by amending Special Orders 31 AR to show his Date of Rank to be 24 August 2017. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 3 October 2019. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: DF eputy Assistant Secretary of the Army Encl Printed on Recycled Paper IN THE CASE OF: BOARD DATE: 18 January 2019 DOCKET NUMBER: AR20180008200 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 18 January 2019 DOCKET NUMBER: AR20180008200 APPLICANT'S REQUEST AND STATEMENT: 1. The applicant requests an adjustment of his date of rank (DOR) and effective date of promotion to major (MAJ) in the District of Columbia Army National Guard (DCARNG) from 25 January 2018 to 24 August 2017. 2. The applicant states Presidential Scroll PL08-17 was processed for 283 days, which was well beyond the average time frame for ARNG scrolls as identified by the proponent ARNG-HRP. He requests a review and understanding for the unwarranted delay in his promotion to MAJ. The abnormal delay in the processing of the Presidential scroll has pushed him into a later year group as well as a loss of base pay and basic allowance for housing totaling $3,988.50. The most recent scrolls were signed in 146 days and 154 days, validating that 283 is not the norm. THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records with supporting documents: * ARNG-HRP Federal Recognition (FEDREC) Brief * Applicant’s Statement * PL08-17 Scroll Count * National Guard Bureau (NGB) Memorandum Recommending the Applicant’s Promotion, dated 30 January 2017 * Orders Number 078-001, Joint Force Headquarters DCARNG * Special Orders Number 31 AR, NGB, dated 1 February 2018 * National Guard Promotion Accountability Act * National Guard Accountability Act Bill (Amendment), pending before Congress * News Room Press Release 2. Evidence from the applicant’s service record and Department of the Army and Department of Defense records and systems: Enclosure 2 * DA Forms 71 (Oath of Office), dated 19 June 2008 and 5 October 2015 * ARNG Retirement Points History Statements, dated 26 August 2008 and 14 October 2011 * Personnel Qualification Record * Special Orders 320 AR, NGB, dated 5 September 2012 * Memorandum for Record, 5 March 2014 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DA Form 2-1 (Personnel Qualification Record) * Special Orders Number 61, NGB, dated 27 March 2017 * Advisory Opinion, dated 31 July 2018 REFERENCES: 1. National Guard Regulation (NGR) 600-100 (Army Profession and Leadership Policy) provides procedures for processing applications for FEDREC. Paragraph 10-15b states that temporary FEDREC may be granted by a Federal Recognition Board (FRB) to those eligible when the board finds the member has successfully passed the examination prescribed herein, has subscribed to the oath of office, and has been appointed by 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 FEDREC, the Chief, NGB extends permanent FEDREC to the member in the grade and branch in which the member is qualified. 2. Title 10, U.S. Code, section 12203 (Commissioned officers: appointment, how made; term) states in: a. Appointments of reserve officers in commissioned grades of lieutenant colonel and commander or below, except commissioned warrant officer, shall be made by the President alone. Appointments of reserve officers in commissioned grades above lieutenant colonel and commander shall be made by the President, by and with the advice and consent of the Senate, except as provided in section 624, 12213, or 12214 of this title. b. Subject to the authority, direction, and control of the President, the Secretary concerned may appoint as a reserve commissioned officer any regular officer transferred from the active-duty list of an armed force to the reserve active-status list of a reserve component under section 647 of this title, notwithstanding the requirements of subsection (a). c. Appointments of Reserves in commissioned grades are for an indefinite term and are held during the pleasure of the President. 3. Title 10, U.S. Code, section 14308 (Promotions: how made) states in paragraph (f) (Effective Date of Promotion After Federal Recognition), 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 shall be the date on which such Federal recognition in that grade is so extended. 4. National Defense Authorization Act for Fiscal Year 2019 states, in pertinent part, which became Public Law 115-232 on 13 August 2018, amended 10 U.S. Code, section 14308 by adding the paragraph “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 (1) may be adjusted to a date determined by the Secretary concerned, but not earlier than the effective date of the State promotion.” The amendments made by 10 U.S. Code 14308(a) shall take effect on the date of the enactment of this Act, and shall apply with respect to promotion of officers whose State effective date is on or after that date. 5. Executive Order 12396, Defense officer personnel management: The President of the United States of America by Section 301 of Title 3 of the United States Code, and in order to delegate certain functions concerning the appointment, promotion, and retirement of commissioned officers of the Armed Forces, delegated to the Secretary of Defense to approve, modify, or disapprove the report of a selection board. DISCUSSION: 1. Having had prior enlisted service in the U.S. Army Reserve and the Regular Army, he was appointed as a commissioned officer in the DCARNG and executed an oath of office on 19 June 2008. 2. He was promoted to first lieutenant on 19 December 2009 and he was promoted to captain on 11 May 2012. 3. On 19 March 2017, the DCARNG published Special Orders 078-001 promoting him to MAJ on 28 February 2017. The orders stated: Effective date of promotion is determined by the FEDREC order issued by the National Guard Bureau, not the effective date of this order. Officer will not be paid at the higher grade or wear the insignia of the higher grade until FEDREC is confirmed and received by this headquarters. 4. NGB Special Orders Number 31 AR, dated 1 February 2018, awarded the applicant permanent FEDREC for initial appointment to the rank of MAJ effective 25 January 2018. 5. The applicant provides: a. DCARNG Memorandum, subject: Recommendation for Promotion [Applicant], dated 30 January 2017, which shows the State certifies the initial appointment packet for the applicant was delayed in submission to the NGB for publication of permanent FEDREC as required by NGR 600-100. The State further recommended his initial MAJ appointment be backdated. He passed the Army Physical Fitness Test within the past 6 months, he meets the height weight standards, and the military education requirements. b. A statement summarizing the facts that he believes effected the delay in the processing of his FEDREC. He states general timelines for previous FEDREC processing and the impact the delay in processing had on him and his family. His largest concern is that the delay removes him from his current year group. To remain completive for future promotions and continued service in the T10 AGR (Active Guard Reserve) program he must have his records corrected. c. The National Guard Promotion Accountability Act, which shows Soldiers and airmen in the National Guard are unique because their promotion or appointment to a higher rank must be recognized by both the State and the Federal government. To achieve FEDREC, the State must submit an officer's name to the NGB, where it is placed on a scroll with other officers awaiting promotion. Each scroll undergoes multiple levels of review by both the NGB and the appropriate military service before being forwarded to the Secretary of Defense for approval or to the Senate for confirmation. d. National Guard Accountability Act Bill Amendment being moved through Congress to improve the process of FEDREC. The Amendment would pay officers as soon as they are promoted and serving in a corresponding job, while they wait for federal confirmation. When Soldiers and airmen in the National Guard receive a promotion or appointment to a higher rank, it would be recognized by both the State and the federal government. e. News Room Press Release states the pending amendment of the National Guard Promotion Accountability Act would address delays in FEDREC of promotions for National Guard members. The bill would compensate Guard officers who serve at a higher rank while waiting for FEDREC by backdating their DOR to the date at which they were promoted by the State. 6. In the processing of this case an advisory opinion was obtained from the Chief, Personnel Division, NGB, wherein, this official recommended approval of the applicant's request to backdate his DOR and effective date to MAJ from 25 January 2018 to 24 August 2017. This official states: a. The applicant’s promotion packet began the FEDREC process on 30 January 2017. His name appeared on Scroll P08-17 which was routed on 24 April 2017 to the Directorate of Manpower and Personnel Management (DMPM). Scroll P08-17 was signed on 25 January 2018, 276 days after submission to DMPM (Director of Military Personnel Management). b. NGR 600-100 provides procedures for processing applications for FEDREC. Paragraph 10-15b states that temporary FEDREC may be granted by a FRB to those eligible when the board finds that the member has successfully passed the examination prescribed, 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 FEDREC, the Chief, NGB extends permanent FEDREC to the member in the grade and branch in which the member is qualified (added from advisory). c. The NGB FEDREC Section identifies the time frame for assignment of a scroll to be approximately 2 to 3 weeks and the general processing time for a scroll to be completed as approximately 6 to 8 months. Processing delays occurred during the scrolling process at no fault of the Soldier. Scroll P07-17 which directly preceded the scroll in contention was signed 24 July 2017, 124 days after submission to DMPM. Based on the average processing times and the preceding scroll approval and as a matter of equity it is the recommendation of this office for the DOR and effective date of promotion to be adjusted to 24 August 2017. d. The above opinion was coordinated with the ARNG FEDREC Branch. The District of Columbia ARNG concurs with the above opinion. 7. The applicant was provided a copy of the above advisory opinion on 1 August 2018 and he concurred by email on 11 August 2018. 8. By law, effective 13 August 2018, if the Secretary concerned determines that there was an undue delay in Federal recognition to the next higher grade in the ARNG, and the delay was not attributable to the action (or inaction) of the officer, the effective date of the promotion concerned may be adjusted to a date determined by the Secretary concerned, but not earlier than the effective date of the State promotion. a. The applicant was recommended for promotion on 30 January 2017 and on 24 April 2017 that scroll was processed. The scroll was signed on 25 January 2018, 276 days after submission. b. Based on the average processing times and the preceding scroll approval and as a matter of equity, the NGB recommended his DOR and effective date of promotion be adjusted to 24 August 2017. //NOTHING FOLLOWS//