IN THE CASE OF:  
		BOARD DATE:  18 October 2021

		DOCKET NUMBER:  AR20210005177


APPLICANT REQUESTS: correction of his record to show his Date of Rank (DOR) for 
promotion to the rank/grade of captain (CPT)/O-3 as 21 August 2019 instead of 
17 November 2020 with entitlement to back pay and allowances.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	Timeline for delayed promotion to CPT
*	National Guard Bureau (NGB) Form 22 (Report of Separation and Record of 
	Service), ending on 17 July 2018
*	NGB Form 337 (Oaths of Office), dated 18 July 2018
*	DA Form 71 (Oath of Office Military Personnel), dated 18 July 2018
*	Orders Number 004-034, dated 4 January 2019
*	Orders Number 036-184, dated 5 February 2019
*	DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 
	16 May 2019
*	Orders Number 255-001, dated 12 September 2018
*	Special Orders Number 196, dated 29 June 2020 
*	Orders Number 234-060, dated 22 August 2019
*	Special Orders Number 356, dated 24 November 2020
*	Email correspondence 

FACTS:

1.  The applicant states:

	a.  On 18 July 2018, he transferred from the Texas Air National Guard to the Texas 
Army National Guard (TXARNG) and received a direct commission as a first lieutenant 
(1LT)/O-2 as a Judge Advocate. After spending the remainder of 2018 drilling as a 1LT, 
attending the Direct Commission Course, and Judge Advocate General (JAG) School, 
he was eligible for promotion to CPT in July of 2019. He submitted the promotion 
paperwork and was State recommended to CPT on 21 August 2019. Upon submitting 
his CPT promotion packet for Federal Recognition (FEDREC), it was discovered that 
the State J-1 office had never submitted his initial officer recognition packet for 
FEDREC, which was necessary prior to promoting to CPT. The NGB determined that 
the only way to correct this error was to start the FEDREC process from the beginning, 
despite having already served as a 1LT for over a year. This error delayed his 
promotion to CPT over a year while waiting on the initial recognition and a resubmission 
of the CPT packet, all of which were further delayed by COVID-19.

	b.  This change would reflect the effective date at which his promotion to CPT was 
recognized by the State of Texas. Further, backdating his promotion to CPT would 
properly reflect the Judge Advocate position in which he was assigned, Trial Counsel as 
an O-3, during that period. Additionally, this would place him back with his peer group of 
JAG officers that he received his commission and attended JAG school with. This
correction would allow him to file for back-pay and compensation to which he is entitled. 
More importantly, it would also place his career back on track for attending required 
professional military education courses, future promotion potential, and elevated 
assignments within the JAG Corps.

2.  A review of the applicant's official records shows the following:

	a.  On 12 September 2018, Orders Number 255-001, issued by the TXARNG 
appointed the applicant as commissioned officer in the JAG Corps in the rank of 1LT, 
effective 18 July 2018.

	b.  DA Form 1059 (Service School Academic Evaluation Report) shows the applicant 
attended and completed the Judge Advocate Officer Basic Course.

	c.  On 22 August 2019, Orders Number 234-060, issued by the TXARNG, promoted 
the applicant to the rank of CPT, effective 21 August 2019. These orders state 
"individual will not be paid for promoted rank until FEDREC confirmed." "Effective date 
of promotion is determined by FEDREC order issued by the NGB, not effective date of 
this order." His duty position was trial counsel.

	d.  On 29 June 2020, Special Orders Number 196, issued by the NGB, extended 
FEDREC to the applicant in the rank of 1LT, effective 18 July 2018, with a DOR of 
18 February 2017.

	e.  On 24 November 2020, Special Orders Number 356, issued by the NGB, 
extended FEDREC to the applicant in the rank of CPT, effective on with a DOR of 
17 November 2020

3.  The applicant provides:

	a.  Timeline of delayed promotion to CPT which shows the following:

*	17 July 2018 - Official Discharge from Texas Air National Guard
*	18 July 2018 - Took Oath of Office as a 1LT Judge Advocate in the TXARNG
*	12 September 2018 - Received State Recommendation to 1LT
*	19 January 2019 - Left for Direct Commission Course and Judge Advocate 
Officer Basic Course
*	15 May 2019 - Graduated from Judge Advocate Officer Basic Course
*	19 July 2019 - Submitted Promotion Packet for CPT
*	21 August 2019 - Received State Recommendation to CPT
*	6 September 2019 - Initial Officer Recognition submitted to the NGB
*	18 July 2020 - Received FEDREC as a 1LT
*	29 June 2020 - Re-submitted CPT Promotion Packet to NGB for FEDREC
*	17 November 2020 - Received FEDREC as a CPT
*	7 December 2020 - Submitted Army Board for Correction of Military Records 
packet for DOR Correction

   b.  NGB Form 22 showing the applicant released from the Texas Air National Guard 
for appointment as an officer. 

   c.  NGB Form 337 and DA Form 71 showing the applicant executed the oath of 
office in the rank of 1LT.

   d.  Orders Number 004-034 and 036-184, issued by the TXARNG, ordered the 
applicant to active duty for training and the Basic Officer Leader Course. 

e.  DD Form 214 showing the applicant was released from active duty training on 
16 May 2019.

   f.  Email correspondence showing the communication pertaining to the applicant's 
scrolling and Unit Vacancy Promotion packet for CPT being delayed by administrative 
processes.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found that relief 
was warranted. Board members noted that an advisory opinion would have been helpful 
in this case. In its absence, Board members found the applicant met the requirements 
for this promotion and was promoted by the State. Aside from what stated, it is unclear 
from the service record what transpired between August 2019 and November 200 or 
why it took such a long time for his promotion to be federally recognized. What is clear 
is that he should not be penalized for administrative errors committed by the unit or the 
NGB in not extending him initial recognition, which compounded the errors. 


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

X:	X:	X:	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 and Army National Guard records of the individual concerned be corrected by 
amending Special Orders Number 356, issued by the NGB, on 24 November 2020, to 
show his date of rank and effective date of promotion to CPT as 21 August 2019.

       		  
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 600-100 (Commissioned Officers Federal Recognition 
and Related Personnel Actions) 

	a.  The appointment of officers in the ARNG is a function of the State concerned, as 
distinguished from the FEDREC of such appointment. Upon appointment in the ARNG 
of a State, and subscribing to an oath of office, an individual has a State status under 
which to function. Such individuals acquire a Federal status when they are Federally 
recognized and appointed as a Reserve of the Army. The effective date of FEDREC for 
original appointment is that date on which the commissioned officer executes the oath 
of office in the State and is federally recognized.

	b.  Federal Recognition Board action is required for direct commissioning and initial 
appointment. 

	c.  The promotion of officers in the ARNG is a function of the State. As in original 
appointments, a commissioned officer promoted by State authorities has a State status 
in the higher grade under which to function. However, to be extended FEDREC in the 
higher grade, the officer must have satisfied the requirements prescribed herein. 
National Guard officers may be considered and found qualified for FEDREC of their 
State promotion using two distinct processes: State Federal Recognition Boards and DA 
Mandatory Boards. Under either process, the precedent for an actual promotion in the 
Army National Guard is State assignment and appointment to the next higher grade. 
State Federal Recognition Boards (FRB). Officers may be federally recognized through 
State FRB which are often referred to as "State vacancy promotion boards" or "unit 
vacancy boards" as part the Unit Vacancy Promotion. 

	d.  Promotion criteria will be based on efficiency, time in grade (TIMIG), time in 
commissioned service, demonstrated command and staff ability, military education 
(MILED) and civilian education (CIVED), and potential for service in the next higher 
grade. 

	e.  A commissioned officer who has been promoted by the State and extended 
FEDREC in the higher grade will be concurrently promoted to the higher grade in the 
Reserves of the Army with assignment to the ARNGUS. An officer's effective date and 
DOR as a Reserve of the Army will be determined by their duty status, type of selection 
board which selected the officer, and delay status (if applicable), and will be as defined 
below, unless otherwise provided by law. The Chief, NGB will extend FEDREC in the 
higher grade to an ARNG commissioned officer using NGB Form 0122E series orders 
(NGB Special FEDREC Orders). 

	f.  Unit Vacancy Promotion (UVP). Effective Date and DOR are the same date and 
are established when the scroll is either approved by the Secretary of Defense 
(Lieutenant Colonel and below).

	g.  Minimum years of time in grade for promotion eligibility and MILED: A 
commissioned officer must complete the following minimum Time in Grade (TIMIG) prior 
to being considered for promotion and FEDREC in the higher grade; 1LT to CPT 2 
years TIMIG in the lower grade and completion of the Basic Officer Leader Course.

2.  Department of Defense Instructions 1310.01 (Rank and Seniority of Commissioned 
Officers) states the Secretary of the Military Department concerned may adjust the DOR 
of an officer, except a general or flag officer, appointed to a higher grade under Title 10, 
USC, sections 624(a) or 14308(a) if the appointment of that officer to the higher grade is 
delayed by unusual circumstances. The Secretary of the Military Department concerned 
must determine that the unusual circumstance caused an unintended delay in 
processing or approval of the selection board report or promotion list in order for an 
officer’s DOR to be adjusted.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20210005177


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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