ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

                  IN THE CASE OF:

                  BOARD DATE:  3 June 2019

                  DOCKET NUMBER:  AR20180013323

APPLICANT REQUESTS:  correction of her date of rank (DOR) to Lieutenant Colonel (LTC) from 18 July 2018 to 21 May 2018.

APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  

* DD Form 149 (Application for Correction of Military Record)
* National Guard Bureau (NGB) Federal Recognition Error
* NGB Supporting Memorandum

FACTS:

1.  The applicant states:

* the Army National Guard Federal Recognition Section at NGB notified the Department of Military Personnel Management Liaison to put her on scroll PL15-17 for promotion to LTC 
* the liaison took emergency leave for 2 months during this timeframe
* she was not placed on scroll PL 15-17 as requested
* the NGB believed her name was on the scroll 
* they updated the Federal Recognition actions tracker as though she was on the scroll
* the approved scroll was sent out
* that's when NGB realized her name was not on the scroll
* she has since been promoted to LTC but wants her date of rank to reflect the approved date from scroll PL15-17
* if the date is not changed she will have a date of rank after her peers who she should be senior to
* this will impact her selection for future assignments, schools, and promotion to Colonel

2.  The applicant provides two NGB Memorandums regarding the federal recognition error.  The memorandums state, in part:

* the memorandums are to explain an administrative error which delayed the applicant's promotion packet from being federally recognized in a timely manner
* the applicant was not placed on the Unit Vacancy Promotion Presidential Scroll 15-17 approved on 21 May 18
* there were manpower issues in the Department of Military Personnel Management Office
* the applicant was fully qualified and served in a higher-graded position during this time
* she should have been placed on scroll PL15-17 with the DOR of 21 May 2018
* the liaison who was supposed to place the applicant on the scroll took emergency leave
* the applicant was not placed on the scroll 
* after the discrepancy was noticed, the applicant was placed on scroll PL06-18
* they recommended the applicant apply to the Army Board for Correction of Military Records to request a DOR change to 21 May 2018
  
3.  In the processing of this case, an advisory opinion was obtained on 1 May 2019, from the Chief, Special Actions Branch, NGB.  The advisory recommended partial approval stating, the applicant should have been placed on Scroll PL 15-17 with the DOR of 21 May 2018.  A copy of the complete advisory opinion has been provided to the Board for their review and consideration.

4.  The applicant was provided a copy of this advisory opinion on 9 May 2019, to provide her an opportunity to comment and/or submit a rebuttal.  She responded, in part:

* the guidance of the advisory is what she was asking for
* she would like her DOR changed to 21 May 2018

5.  The ABCMR’s authority differs regarding date of rank and effective date of promotion depending on the date in question.

   a.  The ABCMR may correct an officer's date of rank when a proper appointment has already occurred.  
   
   b.  However, on 13 August 2018, the National Defense Authorization Act of Fiscal Year 2019 (NDAA FY19) was enacted by Congress.  It amended 10 U.S.C. § 14308(f) by adding a paragraph regarding the Secretary of the military department's authority to adjust effective dates of promotion when there was an undue delay in extending federal recognition in the next higher grade.  The effective date of promotion could be adjusted to a date determined by the Secretary concerned, but not earlier than the effective date of the State promotion.  However, the NDAA FY19 expressly stated the amendment shall take effect on 13 August 2018 (the date of enactment) and “shall apply with respect to promotions of officers whose State effective date is on or after that date.”  

	c. 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.

	d.  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."

	e. What constitutes "unusual circumstances" will, generally, be for the Board to determine based on the available evidence, which often includes an advisory opinion.

	f. 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.


BOARD DISCUSSION:

After review of the application and all evidence, the Board determined that there is sufficient evidence to grant partial relief.  

1.  The ABCMR has the authority to adjust the date of rank in this case, and the Board agreed that there was an error and injustice when the applicant’s name was left off of Scroll PL 15-17, with effective date of 21 May 2018.   Therefore, the Board agreed with the National Guard Bureau advisory that the applicant’s date of rank should be corrected to reflect 21 May 2018. 

2.  However, the authority to adjust the effective date of an officer’s promotion in cases of undue delay extending federal recognition applies only with respect to promotions of officers whose effective date is on or after 13 August 2018.  Because the applicant's state promotion effective date was before 13 August 2018 (regarding both scrolls), relief in the form of an adjustment to her effective date of promotion is precluded as a matter of law.



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: 

The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.

1.  As a result, the Board directs that all Department of the Army records of the individual concerned be corrected by amending the applicant’s date of rank to reflect 21 May 2018 on Scroll 15-17.

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 adjusting her effective date of promotion.

3.  The Board directs the National Guard Bureau to reissue the applicant a promotion memorandum to replace the memorandum dated 27 July 2018, explaining the above changes and ensure the applicant understand that the change in date of rank comes with no change in pay and allowances.


												
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.

ADMINISTRATIVE NOTE(S):  N/A

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.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)		AR20180013323

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