RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	6 October 2005  
	DOCKET NUMBER:  AR20050000933 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Mr. Carl W. S. Chun

Director

Ms. Stephanie Thompkins

Analyst


The following members, a quorum, were present:


Mr. Curtis L. Greenway 

Chairperson

Mr. Richard T. Dunbar

Member

Ms. Laverne V. Berry 

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, adjustment to his promotion effective date for lieutenant colonel from 6 January 2005 to 29 December 2004, with entitlement to back pay and allowances.

2.  The applicant states that because of an administrative error, the wrong font was used in preparing the National Guard Bureau (NGB) promotion list P25-04, along with lists 22-24 and 26 that were returned to the NGB.  This resulted in the unjust delay of the effective date of promotion.  List P27-04 was signed on 29 December 2004 and the effective date of his promotion should be adjusted to that date to correct the injustice.

3.  The applicant provides copies of his promotion memorandum and orders for lieutenant colonel; the 2005 Army National Guard (ARNG) Federal Recognition Update; and his NGB Special Orders 148AR, 227AR, and 8R. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he was appointed in the United States Army Reserve (USAR) as a second lieutenant effective 17 May 1985.  He entered on active duty effective 28 September 1985.

2.  He was promoted to captain effective 1 March 1990.  He was released from active duty effective 1 August 1994 and was transferred to the USAR Control Group (Reinforcement).

3.  He was appointed in the Virginia (VA) ARNG, Infantry Branch, as a captain effective 10 September 1994.

4.  On 22 February 1998, he elected to delay his promotion to major until 27 February 2000.  His request was approved on 9 April 1998.

5.  He was issued a promotion memorandum for major dated 10 August 1999 by the NGB which indicated his promotion effective date for major was 10 August 1999, with a date of rank of 23 February 1997.

6.  He was considered for promotion to lieutenant colonel by a Federal Recognition Examining Board (FREB) that convened on 22 July 2004 and he was found fully qualified.   

7.  He was issued a promotion memorandum by the VAARNG dated 5 August 2004 indicating his promotion to lieutenant colonel was effective 22 July 2004.  The memorandum stated that he would not be paid nor wear insignia in the higher grade until Federal Recognition had been extended by the NGB.

8.  On 16 September 2004, he was extended Federal Recognition and promoted to lieutenant colonel effective the same day.

9.  The NGB issued special orders 8AR, dated 6 January 2005, indicating a change to the applicant's extension of Federal Recognition date to 6 January 2005.

10.  He was issued a promotion memorandum to lieutenant colonel by the NGB, dated 6 January 2005, indicating his promotion effective date as 6 January 2005, with a date of rank of 16 September 2004.

11.  The applicant submits a copy of the 2005 ARNG Federal Recognition Update as of 7 January 2005 that lists the Presidential Lists for Calendar Year 2004 and shows lists 27-04 through 29-04 received approval signature on 29 December 2004, lists 21-04 received approval signature on 22 September 2004, lists 22-04 through 25-04 received approval signature on 5 January 2005, and list 26-04 received approval signature on 6 January 2005. 

12.  In the processing of this case, an advisory opinion was requested of the Chief, Personnel Division, Departments of the Army and the Air Force, NGB.  The Chief, Personnel Division, provided a summary of the applicant's allegations and specified the Army Regulation pertinent to the applicant's promotion effective date and date of rank issue.  The Chief, states that in the applicant's case the NGB memorandum, dated 6 January 2005, states the promotion eligibility date is 16 September 2004.  Federal Recognition order number 227AR, dated 16 September 2004, reflects his promotion effective date.  Federal Recognition order number 8AR, dated 6 January 2005, lists the effective date for pay purposes.  The NGB, Federal Recognition Section, coordinates processing of promotion lists with Army G-1 (Pentagon).  Lists prior to 1 October 2004 were forwarded to the following offices for review:  Office of the Deputy Chief of Staff for Personnel (ODCSPER); Office of The Judge Advocate General, Army; Director of Military Personnel Management; Deputy Chief of Staff for Personnel; Assistant Secretary of the Army, Manpower and Reserve Affairs; Director of the Army Staff; Secretary of the Army; and the Office of the Secretary of Defense (OSD), for final review before moving them to the White House for the President's signature.  On 28 September 2004, the President signed an executive order, effective 1 October 2004, delegating signature authority for promotions to lieutenant colonel and below to the Secretary of Defense (SecDef).  This change in signature authority required subsequent changes in scrolls and memoranda being submitted for approval.  Presidential List 25-04, on which the applicant's name appeared, was one of those lists that had been forwarded to OSD while changes were being implemented.  Consequently, several lists which had already made it as far as the White House (Presidential Lists 22-04 through 26-04) had to be returned to OSD to have corrections made to their memoranda and scrolls.  Presidential List 27-04 through 29-04, which were compiled at NGB, after notification of the Executive Order, were prepared according to the new requirements.  These lists moved ahead of the lists which hadn't yet been formatted to meet the new requirements.  The error was not NGB's, the delay was due to an administrative change requiring that all promotion lists be formatted in accordance with the SecDef's request.

13.  The opinion also states that the Federal Recognition Section also stated that if the ABCMR approves the officer's request to adjust his pay, not only will they have to adjust his pay, but all Title 10 officers on the list that were affected.  The applicant was promoted based on a position vacancy promotion in the secondary zone, ahead of his peers.  The NGB, feels that the information the applicant provided on the allegation and the list of name provided with the documents were sensitive information between the NGB and the OSD.  For this reason, and the fact that the OSD was making changes on the administrative procedures, the Personnel Division recommended the applicant's request be denied.

14.  The advisory opinion was forwarded to the applicant for acknowledgement and possible rebuttal on 24 May 2005.  He did not respond.

15.  Army Regulation 135-155, prescribes the policies and procedures for the promotion of Reserve Component officers.  This regulation, dated 13 July 2004, specifies that promotion board recommendations are made to the President of the United States, who is the approval authority for all commissioned officers.  Authority to administratively issue Reserve of the Army promotion memorandums for ARNG officers serving in an active status on the Reserve Active Status List and ARNG Active Guard Reserve officers is assigned to the Chief, NGB.

16.  Army Regulation 135-155, also specifies that promotion cannot be effective prior to approval of respective boards by the President or a designated approval authority. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that an administrative delay resulted in an unjust delay of his promotion effective date has been noted.  However, the applicant was determined qualified for promotion to lieutenant colonel by a FREB that convened on 22 July 2004.  The promotion list containing the applicant's name received approval signature on 6 January 2005.  The documentation submitted by the applicant show other promotion lists received approval signature on 29 December 2004 and 5 January 2005.  The promotion lists signed on 29 December 2004 were signed 3 days before the New Year holiday and the promotion lists signed on 5 January and 6 January 2005 were signed 5 and 6 days, respectively, after the New Year holiday.  

2.  It is concluded that the NGB, upon notification of the change in signature authority on promotion lists, implemented the required changes to the returned lists and resubmitted them in a timely manner.  Therefore, the applicant is not entitled to adjustment to his promotion effective date for lieutenant colonel.  He was promoted to lieutenant colonel on the earliest date he was eligible and in a timely manner and he has not shown otherwise.

3.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____RTD_  _LVB___  _CLG ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




______________________
          CHAIRPERSON




INDEX

CASE ID
AR20050000933
SUFFIX

RECON

DATE BOARDED
2005/10/06 
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
131.00
2.
131.01
3.

4.

5.

6.