BOARD DATE: 13 March 2020 DOCKET NUMBER: AR20180010898 APPLICANT REQUESTS: * a change in his Date of Rank (DOR) to Major (MAJ) to reflect 26 July 2017 * back pay to his effective DOR of 26 July 2017 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * State Recognition Orders * Federal Recognition * Transfer Orders * Federal Recognition Packet Status * memorandum subject Army National Guard (ARNG) Officer Promotions * Federal Recognition Board Staffing and Approval Process * Officer Evaluation Reports (OER) * Excerpt from Title 10 US Code (USC) 624 * Excerpt from Title 10 USC 741 * Excerpt from Title 10 USC 14308 FACTS: 1. The applicant states: a. Due to excessive delay of the promotion scrolling process, he is requesting an adjustment to his DOR to MAJ. According to the memorandum for officer promotions, the timeline for staffing and approval of promotion is about 140 days from state submission, which is approximately 13 December 2017. b. Title 10 USC 741 states the Secretary of the Army may adjust DOR if officer's promotion is delayed by reason of unusual circumstance and consistent with the officer's position on the promotion list and competitive category. c. Title 10 USC 624 and 14308 state promotions shall be made in order in which officers appear on promotion list and after officers previously selected for promotion have been promoted. The P01-18 scroll of officers published prior to P15-17, before officers previously selected Title 10 USC 624 states an officer shall have the effective DOR as if no delay had intervened, such as investigation of disciplinary or adverse information and shall not be delayed for more than 6 months. His promotion was 10 months (299 days) from the state order. 2. The applicant's service record is void of any disciplinary or adverse information. 3. The applicant provides the following documents for the Board's consideration: a. Orders 207-012, published by Joint Force Headquarters, Oregon National Guard, dated 26 July 2017 promoting the applicant to MAJ with an effective date of 26 July 2017 and a DOR of 26 July 2017. b. Special Orders Number 118, published by National Guard Bureau, dated 29 May 2018 announcing federal recognition of the applicant's promotion effective 21 May 2018 with a DOR of 21 May 2018. c. Orders 172-16, published by Joint Headquarters, Oregon National Guard, dated 21 June 2017 transferring the applicant with the Oregon National Guard effective 16 June 2017. d. A printout entitled Federal Recognition Packet Status, which gives a time line and status of the applicant's federal recognition packet for promotion to MAJ. e. A memorandum from National Guard Bureau, dated 18 April 2017 regarding the ARNG Commissioned Officer Promotions and Exemplary Conduct Certification Screening, which states details the process by which an ARNG Officer is selected for promotion. f. A time line of the Federal Recognition Board Staffing and Approval Process. g. OERs when the applicant was a Captain, which show: * from 9 January 2017 through 15 June 2017, the applicant excelled, he was most qualified and the number 1 of 7 company grade staff officers senior rated by the author * from 28 June 2016 through 8 January 2017, the applicant excelled and he was highly qualified * from 28 June 2015 through 27 June 2016, the applicant excelled and he was most qualified h. Excepts of Title 10 USC 624 (Promotions: how made); Title 10, USC 741 (Rank: commissioned officers of the armed forces); and Title 10 USC 14308 (Promotions: how made). 4. On 25 February 2020 the National Guard Bureau at the request of the ARBA provided an Advisory Opinion regarding the applicant’s request for an adjustment in his MAJ DOR to reflect 26 July 2017. The Chief, Special Actions Branch states he recommends partial approval dependent on the applicant's requested DOR. After further investigation, it appears no delays occurred during the scrolling process. The National Guard Federal Recognition Section identified the time frame for assignment of a scroll to be approximately 45 to 60 days and the general processing time for a scroll to be completed as approximately six to eight months. Scroll P01-18 which directly followed the scroll in contention was signed 22 May 2018, seven (7) days before scroll P15-17 was signed. Based on the average processing times and the following scroll approval and as a matter of equity it was recommended for the DOR and effective date of promotion to be adjusted no earlier than 2 April 2018. A copy of the complete advisory opinion has been provided to the Board for their review and consideration. 5. On 13 February 2020, the Section Chief for Federal Recognition concurred with the advisory opinion. 6. On 2 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 responded: a. He requests reconsideration of the advisory by adjusting his effective date of promotion and DOR to no later than 15 March 2018. b. According to the Army National Guard Commissioned Officer and Warrant Officer Promotions and Exemplary Conduct Certification Screening dated 18 April 2017, approval of Federal Recognition should take approximately 140 days from the date the Unit Vacancy Promotion Federal Recognition packet is uploaded, defined as R-day. The advisory opinion indicated an R-day of 23 August 2017. Using that date, 140 days after R-day is 10 January 2018. He is requesting an adjustment to 15 March 2018, which would allow him to remain competitive with his peers and prevent extending his promotion selection board consideration window by one year. 7. The applicant submitted the following documents for the Board's consideration with his response: a. The Army National Guard Commissioned Officer and Warrant Officer Promotions and Exemplary Conduct Certification Screening, dated 18 April 2017. b. The federal Recognition Board Staffing and Approval Process timeline. 8. See all applicable regulatory guidance below. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service, his state promotion date to Major and the date of Federal Recognition (Major). The Board considered the review and recommendation of the NGB advising official and the response from the applicant. After review of the above, the Board found merit in the applicant’s request, but agreed with the recommendation of the NGB advising official. Based on a preponderance of evidence, the Board determined that a correction to the applicant’s promotion date was appropriate. 2. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. 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: - amending Special Orders Number 118, published by National Guard Bureau, dated 29 May 2018 announcing federal recognition of the applicant's promotion to show them effective 2 April 2018 with a DOR of 2 April 2018, and; - paying the applicant any money due as a result of this correction. 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 the applicant’s requested DOR. 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) AR20180010898 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1