RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 July 2006
      DOCKET NUMBER:  AR20050015362


      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. William D. Powers             |     |Chairperson          |
|     |Ms. Marla Troup                   |     |Member               |
|     |Mr. William F. Crain              |     |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, correction of his promotion
effective date and date of rank for captain from 28 September 2004 to on or
about 8 July 2004, with entitlement to back pay and allowances.

2.  The applicant states, in effect, that his promotion was delayed until
28 September 2004 because of an administrative processing error by the
Massachusetts Army National Guard (MAARNG) officer personnel branch.  The
MAARNG officer personnel branch acknowledged that they made a mistake and
had erred by routing his promotion packet prematurely before the State
board.  They advised him that his record could not be corrected by their
office and that he must apply for corrective action through the Army Board
for Correction of Military Records process.  His promotion packet was
submitted on 15 June 2004 to the officer personnel branch as he was
mobilizing.  He was advised that his promotion packet would be placed in
front of the first available State promotion board, after his eligibility
date of 8 July 2004.  Instead it was submitted to the promotion board on 25
June 2004 and approved and forwarded to the National Guard Bureau (NGB).

3.  The applicant also states that the Federal records board began
processing the package and eventually it was declared "invalid" because the
State promotion board approved the promotion 14 days prior to when it was
eligible to be approved.  He was advised that his promotion packet was
inadvertently mixed in with a group of packets that were eligible as of 25
June 2004.  He was further advised that his promotion packet would be
expedited through a State board once it was received back from the NGB.
Unfortunately, by the time the MAARNG received his promotion packet,
several other boards had been seated and it had to wait until the 19 August
2004 State board.  His promotion package was again approved and resubmitted
to the NGB, which approved the promotion on 28 September 2004, 83 days
later than the actual eligible promotion date.  Because he had been
deployed since June 2004, this administrative error resulted in a loss of
income.

4.  The applicant provides copies of his NGB Forms 89 (Proceedings of a
Federal Recognition Examining Board (FERB)), his promotion orders for
captain, his Federal Recognition orders for captain, electronic (email)
correspondence detailing the promotion injustice, and his active duty
assignment orders, in support of his request.




CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he was appointed in the
Massachusetts Army National Guard (MAARNG), as a second lieutenant,
effective 8 July 2000.  He was promoted to first lieutenant effective
8 July 2002.

2.  The applicant was ordered to active duty effective 23 June 2004, in
support of Operation Iraqi Freedom.

3.  On 25 June 2004, a FREB considered and determined the applicant
qualified for Federal Recognition and promotion to captain.

4.  Based on the required 2 years minimum time in the lower grade, his
promotion eligibility date for captain was 7 July 2004.

5.  In email correspondence, dated 5 August 2004, the unit S1, MAARNG,
advised the applicant that the reason his packet was still pending was his
information went before a State board in June 2004.  He was not eligible
for promotion at that time, his date of rank for first lieutenant was 8
July 2002 and he was eligible for promotion in July 2004.  That made the
June 2004 board invalid so the NGB could not process the promotion.  The
next State board was 19 August and as soon as that was done, his promotion
would clear the NGB.  The NGB had his packet pending board results.

6.  In email correspondence, dated 10 August 2004, the unit S1, MAARNG,
advised a staff member of the G1 that the applicant's packet could not be
boarded until the officer was eligible for promotion.  They should have
noticed the eligibility date and were sorry for the error.

7.  On 19 August 2004, a second FREB considered and determined the
applicant was qualified for Federal Recognition and promotion to captain.

8.  In email correspondence, dated 24 September 2004, the unit S1, MAARNG,
advised a staff member of the G1 that the applicant's packet was originally
boarded on 24 June 2004.  The applicant was not eligible to be boarded
until 7 July 2004, based on the required 2 years time in grade.  The NGB
notified them at the end of July of the error and returned the packet so it
could re-boarded.  The applicant's promotion packet was re-boarded on
19 August 2004, the next scheduled date, and his packet was sent to the
NGB.  Because he was boarded before his eligibility date the FREB was
invalid and the Solider had to go before another FREB.  The NGB was
notified of the error and did not return the packet to the State until the
first week in August 2004.
9.  In email correspondence, dated 24 September 2004, a staff member of the
G1 advised the applicant that the officer personnel branch attempted to
expedite his promotion by boarding his packet in July.  This did not get
approved at the NGB because their State board was conducted before the
minimum time in service to qualify for promotion to captain.  The packet
had been re-boarded and forwarded to the NGB for Federal recognition.  The
senior staff member opined that the officer branch attempted to expedite
his promotion as quickly as they could.  There was no controversy there and
no reason for the applicant to vent his frustration on the officer branch
because he felt he had been wronged.  The NGB would not allow that packet
to go through and the officer personnel branch did the right thing and
quickly reprocessed that action.

10.  The MAARNG issued Orders Number 232-19, dated 19 August 2004,
promoting the applicant to captain effective 19 August 2004.

11.  The NGB issued Special Orders Number 236AR, dated 28 September 2004,
extending Federal recognition and promoting the applicant to captain
effective 28 September 2004.

12.  The NGB issued the applicant a promotion memorandum, dated 7 January
2005, indicating his promotion to captain with a promotion effective date
and date of rank of 28 September 2004.

13.  The applicant was released from active duty effective 30 December 2005
and transferred to a MAARNG unit.

14.  In an advisory opinion, dated 28 June 2006, the Chief, Personnel
Division, Departments of the Army and the Air Force, NGB, reiterates the
applicant's request and statements.

15.  A NGB Personnel Division official stated that the applicant was
ordered to active duty on 1 October 2003, for Operation Noble Eagle.  On 4
May 2003, he was transferred to a captain's position and on 8 June 2004,
Orders Number 160-137 were issued activating him for Operation Iraqi
Freedom.  The MAARNG published NGB Form 89 on 25 June 2004 for a position
vacancy promotion.  On 5 August 2004, the unit S-1 sent an email to the
officer stating that he was not eligible for promotion, due to his date of
rank.  On 19 August 2003, another NGB Form 89 was published and approved
for a position vacancy promotion.  Orders Number 232-19 were also published
for promotion to captain to be effective 19 August 2004.  The G1 sent an
email to the officer personnel branch on 24 September 2004, requesting the
details surrounding the applicant's
promotion.  The G1 responded to the applicant stating that it was
determined that his promotion package was submitted to the NGB before his
minimum time in service to qualify him for promotion.

16.  The NGB Personnel Division official also stated that Federal
Recognition Special Orders Number 236AR, dated 28 September 2004, were
published promoting the applicant to captain.  In accordance with National
Guard Regulation 600-100, chapter 8, the promotion authority for all ARNG
officers is the State Adjutant General (TAG).  If the TAG chooses not to
promote an officer, he or she is not obligated to do so.

17.  The NGB Personnel Division official recommended the applicant's
promotion effective date and date of rank be adjusted from 28 September
2004 to 19 August 2004, based on the MA TAG approving the applicant for
promotion on that date based on a position vacancy promotion.  The NGB
Personnel Division official also recommended entitlement to back pay and
allowances due the applicant.  The NGB, Personnel Policy and Readiness
Division officials concurred with the Personnel Division's recommendations.


18.  The advisory opinion was forwarded to the applicant for
acknowledgement and/or rebuttal on 29 June 2006.  He did not respond.

19.  National Guard Regulation 600-100, in pertinent part, prescribes the
policies and procedures for the promotion of ARNG officers.  Chapter 8
specifies that to be considered for Federal recognition and subsequent
Reserve of the Army promotion following a State promotion to fill a unit
vacancy, a ARNG commissioned officer must be in an active status and have
completed the minimum years of service.  The minimum years of service for
promotion to captain is completion of 2 years in the lower grade.
Chapter 8-11(a) specifies that a FREB will review the records of
commissioned officers recommended for promotion.  The State may promote
an officer under the unit vacancy criteria prior to the mandatory
promotion eligibility date.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is entitled to
adjustment to his promotion effective date and date of rank for captain to
19 August 2004, the date the MA TAG approved him for promotion based on a
position vacancy, with entitlement to back pay and allowances.

2.  The evidence of record shows it was the intent of the MAARNG to promote
the applicant by a position vacancy promotion effective 8 July 2004.  A
promotion packet was submitted to a State board and approved on 25 June
2004.  The promotion packet was forwarded to the NGB for processing.  The
NGB declared the promotion invalid because the applicant was ineligible for
promotion until 8 July 2004, based on completion of the required 2 year
minimum time in the lower grade.  His packet was submitted to the next
available State board and approved by the MA TAG on 19 August 2004.

3.  By all accounts, the applicant's original unit vacancy promotion was
submitted in a timely fashion to qualify him for a unit promotion effective
8 July 2004.  However, because his promotion packet was inadvertently
placed before a State promotion board in June 2004, the promotion was
invalid because he was ineligible for promotion until 8 July 2004.  This
caused his promotion packet to be resubmitted to the next scheduled State
promotion board for approval.  His unit vacancy promotion was approved on
19 August 2004 and forwarded to the NGB for processing.  He was extended
Federal recognition and promoted to captain effective 28 September 2004.

4.  The applicant's promotion was delayed through no fault of his own;
however, once the MAARNG was made aware that the June 2004 State board was
not a valid promotion, the officer personnel branch reprocessed his
promotion as quickly as they could.  Therefore, it is concluded that based
on a matter of equity and on the support for favorable consideration
expressed by the NGB, Personnel and Personnel Policy and Readiness
Divisions, the applicant should be granted relief as recommended.

5.  In view of the foregoing, the applicant’s MAARNG and Department of the
Army records should be corrected as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___T____  __WDP__  ___WFC    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 of Massachusetts Army National Guard and
Department of the Army
records of the individual concerned be corrected by showing he was promoted
to captain with a promotion effective date and date of rank of 19 August
2004, with entitlement to back pay and allowances based on these
adjustments.

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
adjustment of his promotion effective date and date of rank for captain to
on or about 8 July 2004, with entitlement to back pay and allowances.




                                  ___William D. Powers_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050015362                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |                                        |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT PARTIAL                           |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.00                                  |
|2.                      |131.01                                  |
|3.                      |131.01                                  |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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