RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 January 2006
      DOCKET NUMBER:  AR20050006632


      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             |
|     |Mrs. Victoria A. Donaldson        |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Rodney E. Barber              |     |Member               |
|     |Ms. Rea M. Nuppenau               |     |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 his date of rank and Federal Recognition date
for promotion to the grade of captain be changed from 22 March 2005 to 17
July 2004.

2.  The applicant states his promotion and subsequent Federal Recognition
was delayed over eight months through no fault of his own.  He continues
that this delay has had an effect on his competitiveness for advancement to
the next higher grade and loss of income while deployed on active duty.

3.  The applicant provides a two-page self-authored statement; two
memorandums of support; a copy of National Guard Bureau Federal Recognition
Orders Number 89 AR, dated 22 March 2005; Pennsylvania Army National Guard
(PAARNG) Orders Number 045-1013, dated 14 February 2005; a copy of a
National Guard Bureau Information Paper, dated 1 March 2004; a copy of
National Guard Bureau Federal Recognition Orders Number 186 AR, dated
25 July 2003; a copy of PAARNG Orders Number 020-002, dated 20 January
2005; a copy of PAARNG Orders Number 010-131, dated 10 January 2005; and a
NGB Form 89 (Proceedings of a Federal Recognition Examining Board in
support of this application.

CONSIDERATION OF EVIDENCE:

1.  Records show the applicant is currently a member of the PAARNG serving
the rank of captain.

2.  The applicant was appointed as a first lieutenant in the Judge Advocate
General's (JAG) Corp on 17 July 2003.  The applicant executed an oath of
office as a first lieutenant in the PAARNG on 17 July 2003.

3.  National Guard Bureau Federal Recognition Orders Number 186 AR, dated
25 July 2003, awarded the applicant permanent Federal Recognition for
initial appointment to the grade of first lieutenant, effective 16 December
2003.  These orders further show the applicant's date of rank as a first
lieutenant as 17 July 2002.

4.  Table 2-1 of Army Regulation 135-155 (Promotion of Commissioned
Officers and Warrant Officers Other Than General Officers) states that the
minimum time in grade as a first lieutenant for unit vacancy promotion to
captain is 2 years.

5.  On 3 February 2005, a Federal Recognition Board was held by the PAARNG
to determine if the applicant was qualified to be awarded permanent Federal
Recognition in the grade of captain.  The proceedings indicated the
applicant was satisfactory in his physical qualifications, moral character
and general qualifications.

6.  PAARNG Orders Number 045-1013, dated 14 February 2005, show the
applicant was promoted to the rank of captain.  These orders further show
the effective date 3 February 2005 was lined through and replaced with the
date 22 March 2005.

7.  The applicant's records contain a National Guard Bureau memorandum
dated 25 May 2005 which shows he was promoted as a Reserve Commissioned
Officer of the Army with the effective date 22 March 2005.

8.  National Guard Bureau Federal Recognition Orders Number 89 AR, dated
22 March 2005, awarded the applicant permanent Federal Recognition for
promotion to the grade of captain, effective 22 March 2005.

9.  The applicant provided a two-page self authored statement in which he
states that in May of 2004 his chain of command and the chain of command of
the G-1 section for the 28th Infantry Division (Mechanized) approached him
about his up coming promotion eligibility.  He continues that he was
informed he could submit a promotion packet on his anniversary date in July
2004 and that an officer evaluation report (OER) was not required for judge
advocates.

10.  The applicant stated that he was aware of several JAG officers
promoted to captain prior to him that were not required to have profiled
OERs.   He further stated that all that was required prior to his promotion
was a letter from the Staff Judge Advocate along with other documents such
as transcripts.  He contends the G-1 section provided him with a checklist
of required documents.

11.  The applicant argues he provided his promotion packet to the G-1
section at the end of July 2004.  He states he was informed in the
beginning of August 2004 he needed another photograph and an "AMC."  He
contends the Personnel Office at Fort Indiantown Gap did not have the photo
that was sent in December 2003 and he was able to get a new photo on 11
September 2004.  The applicant stated that he resubmitted the entire
promotion packet with the new photograph on 14 September 2004.


12.  The applicant continues that in October 2004 he was informed that his
promotion packet had not been processed because he lacked an OER.  He
further stated that a new active duty advisor had reported for duty and was
now requiring an OER.  The applicant argues that no new policy change or
new requirement in the regulation could be identified and his OER was not
completed until around October and still required time to be profiled.

13.  The applicant stated that in October 2004, he was once again informed
that his photograph was missing and that he drove 4 hours to Fort
Indiantown Gap to provide another photograph.

14.  The applicant argues that in December 2004 he was informed that his
promotion packet could be forwarded without the profiled OER and his packet
would be considered by the next board [Federal Recognition Board].  The
applicant continues that in late January 2005 he was informed his packet
had not gone forward and that his transcripts were missing because his
record was sent out for mobilization.

15.  The applicant contends he was mobilized for train up and deployment on
6 February 2005 and he was informed that PAARNG Orders were published which
promoted him to captain with a date of rank of 3 February 2005.  He further
contends that the promotion orders and the promotion packet were mailed
overnight to the NGB on 6 February 2005.

16.  The applicant contends that the NGB lost his promotion packet and that
a new packet was faxed to NGB.  He concludes that he was awarded permanent
Federal Recognition for promotion to the grade of captain with a date of
rank of 22 March 2005.

17.  The applicant contends that he acted diligently and in good faith and
therefore, he should not be penalized for others mistakes and last minute
changes to policy.

18.  The Assistant G-1 of Headquarters, 28th Infantry Division
(Mechanized), PAARNG provided a memorandum of support dated 8 April 2005.
The Assistant G-1 stated that the events and circumstances surrounding the
applicant's promotion and Federal Recognition described in the applicant's
self-authored letter were an accurate reflection.



19.  The S-1 of Headquarters, 2nd Brigade Combat Team of the 28th Infantry
Division (Mechanized) of the PAARNG stated in a 9 April 2005 memorandum
that the applicant's request for adjustment of his date of rank to 14
November 2004 was within the range of reasonable expectations.  He further
stated the applicant's account of the events leading up to his promotion
and Federal recognition was accurate.

20.  The NGB provided a comprehensive advisory opinion for review with this
application.

21.  NGB officials opined that PAARNG officials provided supporting
memorandums which stated the circumstances and events identified by the
applicant which delayed his promotion were accurate and that his date of
rank to captain should be adjusted to 14 November 2004.

22.  NGB officials further opined that the Reserve Officer Personnel
Management Act (ROPMA) states that to be promoted to fill a vacancy
position at the next higher grade an officer must meet the minimum time in
service, minimum time in grade, and civilian/military education
requirements.  NGB officials stated the applicant met all of the
qualifications to be selected for a position vacancy at the time of his
original submission of his promotion packet.

23.  The NGB officials concluded that the applicant's date of rank to
captain should be adjusted from 22 March 2005 to 14 November 2004.

24.  On 21 December 2005, a copy of the NGB advisory opinion was provided
to the applicant for review and comment.  On 28 December 2005, the
applicant concurred with the advisory opinion and did not make additional
comments.

25.  National Guard Regulation 600-100 (Commissioned Officer-Federal
Recognition and Related Personnel Actions) provides procedures for
processing all applications for Federal Recognition.  Paragraph 2-1 states
commissioned officers of the ARNG are appointed by the several States under
Article 1, Section 8 of the U. S. Constitution.  These appointments may be
federally recognized by the Chief, NGB under such regulations as the
Secretary of the Army may prescribe and under the provisions of this
regulation.  Officers who are federally recognized in a particular grade
and branch shall be tendered an appointment in the same grade as Reserve
commissioned officers of the Army with assignment to the Army National
Guard of the United States if they have not already accepted such
appointment.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his date of rank and Federal Recognition date
for promotion to the grade of captain should be changed from 22 March 2005
to 17 July 2004 because it was delayed not due to his own fault.

2.  Records show the applicant was eligible for a unit vacancy promotion to
the grade of captain on 17 July 2004 based on his date of rank to first
lieutenant.  The applicant did meet the time in grade, time in service and
education requirements at that time.  However, there is no evidence the
applicant was in a position authorized for promotion to the grade of
captain at that time.

3.  The applicant clearly took all of the necessary steps to complete and
submit his promotion packet in a timely manner and through no fault of his
own; the packet was delayed on numerous occasions.

4.  Officials of the PAARNG opined that the Adjutant General of the PAARNG
would have conducted a Federal Recognition Board and promoted the applicant
to captain with a date of rank of 14 November 2004.  There is no evidence
the Adjutant General of the PAARNG intended to promote the applicant on 17
July 2004.

5.  Records show the applicant was awarded permanent Federal Recognition
for promotion to the grade of captain, effective 22 March 2005.

6.  Based on applicable laws and regulations, the applicant is entitled to
have Federal Recognition Order Number 89 AR, dated 22 March 2005, amended
to show the effective date of permanent Federal Recognition for promotion
to the grade of captain is 14 November 2004.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

_LDS_____  _RMN___  _REB__  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented was sufficient to warrant a
recommendation for partial relief.  As a result, the Board recommends all
Department of the Army records of the individual concerned be corrected by
amending Federal Recognition Order Number 89 AR, dated 22 March 2005 2004,
to show he was extended Federal Recognition effective 14 November 2004 in
the grade of captain.

2.  Additionally, Defense Finance and Accounting Office should audit the
applicant's pay records and provide the applicant all pay allowances due
him based on the above correction.

3.  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
promotion to the grade of captain and extension of permanent Federal
Recognition for promotion to the grade of captain effective 17 July 2004.

                                      _Linda D. Simmons___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050006632                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060112                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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