BOARD DATE: 13 May 2010
DOCKET NUMBER: AR20100007766
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests an adjustment of his effective date of promotion and date of rank (DOR) to major (MAJ) from 21 October 2009 to 11 February 2009 and back pay and allowances as a result of this correction.
2. The applicant states he was selected for promotion to MAJ in July 2008 and he was eligible for promotion upon mobilization to active duty on 11 February 2009 in support of Operation Iraqi Freedom (OIF); however, his Federal Recognition orders show a promotion date of 21 October 2009.
3. The applicant provides a copy of National Guard Bureau (NGB) Special Orders Number 255 AR, dated 21 October 2009; and a copy of Permanent Orders 103-008, issued on 13 April 2009, by the U.S. Army Installation Management Command, Fort Bragg, NC; in support of his application.
CONSIDERATION OF EVIDENCE:
1. Having had prior enlisted service, the applicants military records show he was appointed in the North Carolina Army National Guard (NCARNG) as a second lieutenant and he executed an oath of office on 2 September 1993. He served in various staff and command positions, completed several military training courses, and he was promoted to captain (CPT) on 3 September 2002.
2. On 10 March 2008, he was considered and selected for promotion to MAJ by the 2008 Reserve Components Selection Board (RCSB) and on 11 June 2008, his name was placed on the approved selection board list published by the U.S. Army Human Resources Command.
3. On 11 February 2009, he was ordered to active duty as a member of his unit for a period not to exceed 400 days in support of OIF.
4. On 19 October 2009, the Joint Force Headquarters, NCARNG, published Orders 292-861 promoting him to MAJ with an effective date and DOR of 19 October 2009.
5. On 21 October 2009, the NGB published Special Orders 255 AR extending him Federal Recognition for promotion to MAJ effective 21 October 2009.
6. On 24 February 2010, an advisory opinion was obtained in the processing of this case. An official at the NGB recommended partial approval of the applicant's request in that his effective date and DOR to MAJ should be adjusted to reflect the date he reached maximum time in grade (TIG) as a CPT, which is 3 September 2009, and retroactive pay and allowances from 3 September 2009 to 20 October 2009.
7. He was provided a copy of this advisory opinion but he did not respond.
8. NGB Memorandum Number 04-0025, dated 1 September 2004, Subject: Clarification of the Policy to promote DA (Department of the Army) Select Mobilized Officers at Maximum TIG, states in paragraph 3 that ARNG officers recommended for promotion to the grades of CPT through lieutenant colonel under the provisions of Title 10, U.S. Code (USC), sections 12301, 12302, and 12304, who are on an approved mandatory selection board promotion list who reach their maximum TIG will be promoted to the next higher grade without regard to position vacancy unless that officer has voluntarily delayed or decline promotion.
9. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers, Other Than General Officers) prescribes the policies and procedures for the promotion of Reserve and Army National Guard officers. Chapter 2 (Promotion Eligibility and Qualification Requirements), Table 2-1 (Time in Grade Requirements Commissioned Officers, Other Than Commissioned Warrant Officers), provides, in pertinent part, that the minimum TIG as a CPT for promotion to MAJ is 4 years and the maximum TIG is 7 years.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his effective date and DOR to MAJ should be changed from 21 October 2009 to 11 February 2009.
2. The available evidence shows the applicant was promoted to CPT on
3 September 2002. He was selected for promotion to MAJ by the March 2008 RCSB and his name was added to an approved mandatory selection board for promotion to MAJ on 11 June 2008. He reached his maximum TIG of 7 years as a CPT on 3 September 2009.
3. There is no evidence that he voluntarily delayed or declined promotion. Although he was mobilized to active duty under section 12302 of Title 10, USC, on 11 February 2009, he attained maximum TIG as a CPT on 3 September 2009 while he was on active duty. Therefore, he is entitled to an adjustment of his effective date and DOR to MAJ from 21 October 2009 to 3 September 2009 and retroactive pay and allowances from 3 September 2009 to 20 October 2009.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
___x____ ____x___ ___x____ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all State Army National Guard and Department of the Army records of the individual concerned be corrected by:
a. amending NGB Special Orders Number 255 AR to show his effective date of promotion and DOR as 3 September 2009; and
b. paying him retroactive pay and allowances from 3 September 2009 to
20 October 2009 as a result of this correction.
2. The Board further determined that 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 his effective date and DOR to 11 February 2009.
_______ _ __x_____ ___
CHAIRPERSON
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.
ABCMR Record of Proceedings (cont) AR20100007766
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