RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            28 September 2006
      DOCKET NUMBER:   AR20050016823


      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. Deyon D. Battle               |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda Simmons                 |     |Chairperson          |
|     |Mr. Paul Smith                    |     |Member               |
|     |Ms. Alice Muellerweiss            |     |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 and date of rank for captain to 18 July 2004.

2.  The applicant states that his promotion was originally delayed due to
pending criminal charges for which he was ultimately found not guilty
following a jury trial. He states that when he was later promoted, his
promotion was not backdated to reflect the date that he was actually
selected for promotion, and that based on his review of the applicable
regulation, all adjustments, to a date of rank must be approved by the
Secretary of the Army.  He states that he was activated in support of
Operation Iraqi Freedom III in June 2004, with the 278th Regimental Combat
Team of the Tennessee Army National Guard (TNARNG), and that prior to his
activation, he was an officer with the Nashville Metropolitan Police
Department with 19 years of unblemished service.  He states that on or
about 8 August 2003, he was accused of assaulting a prisoner following an
arrest during the normal course of his official duties.  He states that
while the action was pending, he was selected for promotion from first
lieutenant to captain by a promotion board that adjourned on 5 December
2003, with an 18 July 2004, effective date of promotion.

3.  The applicant states that at the time that he was selected for
promotion, he had satisfied all of the requirements of Army Regulation 135-
155, Section II, Paragraph 4-11(a); however, due to the pending criminal
charges, his promotion was automatically delayed pursuant to paragraph 4-
11(c)(7) of that regulation.  He goes on to state that in June 2004, he was
activated into active Federal military service for training at Camp Shelby,
Mississippi, and recognizing his pending promotion, he was assigned in a
captain's position.  He states that he performed the duties of his assigned
position during the training, despite the delay in his promotion; however,
due to his pending trial, he was not deployed but was instead retained on
active duty a Camp Shelby pending the outcome of his trial.  The applicant
concludes by stating that in January 2005, he was tried before a jury and
he was found not guilty, and once the case was resolved, he was promoted to
captain with an effective date of 25 May 2005.

4.  The applicant provides a copy of transfer orders dated 10 May 2006; a
copy of his Certificate of Release from Active Duty (DD Form 214); a copy
of orders releasing him from active duty dated 2 November 2005; a copy of
Federal Recognition orders dated 25 May 2005; a copy of a National Guard
Bureau (NGB) memorandum, dated 25 May 2005, notifying him of his promotion
as a Reserve Commissioned Officer of the Army; a copy of NGB promotion
orders dated 9 May 2005; a copy of deployment order dated 11 March 2005; a
copy of orders ordering him to active duty dated 25 May 2004; a copy of a
memorandum from the United States Army Human Resources Command (AHRC),
Chief, Office of Promotion, Reserve Components, dated 4 April 2004; a copy
of a Certificate of Completion of the Commander's Safety Course; a copy of
his Criminal Case Summary; a copy of his Certification of Completion of the
Law Enforcement Support of Homeland Security Course; and a copy of his
Service School Academic Evaluation Report (AER) dated 1 November 2002,
indicating that he satisfactorily completed the Ordnance Maintenance
Management Officer Advanced-Reserve Components Course.

5.  The applicant also submits in support of his application, a copy of
transfer orders dated 13 July 2000; a copy of Federal Recognition order
dated 17 March 2000; transfer orders dated 24 February 2000; amendment to
Federal Recognition orders dated 30 August 1999; vacancy promotion orders
dated 19 July 1999, promoting him to the rank of first lieutenant with an
effective date of 13 July 1999; a copy of a Certificate of Completion for
the Unit Movement Officer Deployment Planning Course; a copy of his Service
School AER and Certificate of Completion, indicating that he successfully
completed the Transportation Officer Basic Course (OBC); a copy of his
diploma from the Tennessee Military Academy, National Guard Officer
Candidate School; a copy of a memorandum dated 30 January 2004, from the
Department of the Army (DA) and the Air Force NGB, signed by the Assistant
Secretary of the Army, Manpower and Reserve Affairs, regarding promotion of
mobilized ARNG officers who are selected from promotion by a DA mandatory
promotion Board; and a copy of a memorandum from the NGB, Chief, Personnel
Policy and Readiness Division, providing clarification of policy to promote
DA selected mobilized officer at their maximum time in grade.

CONSIDERATION OF EVIDENCE:

1.  The available records show that the applicant was a second lieutenant
in the TNARNG when orders were published on 9 June 1999, promoting him to
first lieutenant.  He was granted Federal Recognition and his promotion
became effective on 19 July 1999.

2.  In a memorandum dated 8 April 2004, the AHRC, Chief, Office of
Promotions for Reserve Components, St. Louis, Missouri (AHRC-STL), notified
the ARNG Personnel Center of the applicant eligibility for promotion as a
Reserve



commissioned officer not on active duty.  In the memorandum the chief
indicated that the applicant had been selected for promotion to captain
with an effective date of 18 July 2004, under the provisions of Army
Regulation 135-155, by a board that adjourned on 5 December 2003.  The
chief also requested a date of extension or termination of Federal
Recognition be furnished to the AHRC-STL.

3.  On 25 May 2004, orders were published ordering the applicant to active
duty in support of Contingency Operation Iraqi Freedom III, with an
effective date of 11 June 2004, not to exceed 545 days, and a mobilization
duty station of Camp Shelby, Mississippi.

4.  Deployment orders were published on 11 March 2005, assigning him to the
42nd Infantry Division, for deployment in support of Operation Iraqi
Freedom III, with an effective date of 13 March 2005, not to exceed 365
days.

5.  On 25 May 2005, the Chief, Personnel Division, NGB notified The
Adjutant General, State of Tennessee, that the applicant was promoted to
captain effective 25 May 2005.

6.  On 2 November 2005, orders were published releasing him from active
duty effective 30 November 2005, and assigning him to Detachment 2, Troop
B, Ordnance Support Squad.

7.  During the processing of this case an advisory opinion was obtained
from the Chief, Personnel Division, Departments of the Army and the Air
Force, NGB, who recommends approval of the applicant's requests.  The chief
opined that his promotion effective date and date of rank should be
adjusted to 19 July 2004, as the applicant was selected by the DA for
promotion to captain and he was slotted in a captain position at the time
of his activation for deployment in support of Operation Iraqi Freedom.  In
the opinion, the chief states that the NGB Strategic Plans and Policy
Division and Personnel Policy and Readiness Division concur with the
recommendation.  In the Advisory Opinion, the chief states that a search of
the applicant's Official Military Personnel File in the Personnel
Electronic Records Management System, Personnel Division found no Report to
Suspension of Favorable Actions (DA Form 268) initiated by the applicant's
unit commander at the time of his civilian criminal charges.





8.  In the advisory opinion, the chief further references a memorandum from
the Assistant Secretary of the Army, to the Deputy Chief of Staff for
Personnel (G-1), dated 17 December 2003, that references the promotion of
mobilized Reserve component officers on the Reserve Active Status List and
states that under the authority of the Secretary of the Army, the
memorandum establishes promotion policy for mobilized Reserve component
officers for promotion to the grades of captain through colonel.  According
to the chief, the memorandum provides that a mobilized ARNG of the United
States officer covered by this policy memorandum who has been recommended
for promotion to the next higher grade by a mandatory promotion board and
who is on a approved promotion list may be promoted immediately when
appointed in the State against a vacant position of a high grade in a
Federally recognized unit in the ARNG.  The memorandum further provides
that an officer promoted under this policy should be assigned to that
position against which the officer was matched or appointed with 180 days
after demobilization.  The memorandum indicates this policy memorandum was
implemented by the Director, ARNG and would ensure that promotions do not
exceed the personnel strength and strength-in-grade limitation of Title 10,
United States Code.  The policy memorandum did not preclude mobilized
officers from voluntarily delaying or declining promotion under the
provisions of Title 10, United States Code, section 14312, and Army
Regulation 135-155.

9.  In the advisory opinion, the chief states that per the Director, ARNG
Memorandum dated 30 January 3004, reference promotion of mobilized ARNG
officers, who are selected for promotion by a DA mandatory promotion board,
while the memorandum dated 17 December 2003, from the Assistant Secretary
of the Army authorizes States to promote mobilized officers under this
policy, there is no requirement to do so; and that officers who reach
maximum time in grade (MTG) and have neither delay nor declined their
promotion will be promoted whether or not assigned against a position of
higher grade.  In the opinion, the chief indicates that Title 10, United
States Code, section 14304(b) and 14316(d) state that a mobilized Reserve
component officer who has been recommend for promotion to the grade of
captain through lieutenant colonel by a mandatory promotion board, and who
is on an approved promotion list shall be promoted with regard to the
existence of vacancy or placement against a position of a high grade under
the policy memorandum on the date on which the officer completes the
maximum years of service as specified in section 14304(a), unless the
officer has voluntarily delayed or declined the promotion.




10.  On 24 May 2006, a copy of the advisory opinion was forwarded to the
applicant for his information, concurrence and/or possible rebuttal.  The
applicant concurred with the advisory opinion by memorandum dated 14 July
2006.

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 to captain to
18 July 2004, with entitlement to back pay and allowances from his
promotion effective date.

2.  The NGB issued an Eligibility for Promotion as a Reserve Commissioned
Officer Not on Active Duty memorandum, dated 8 April 2004, showing his
selection for promotion to captain by a Reserve Component Selection Board
that adjourned on 5 December 2003.  The memorandum advised that the
effective date of the promotion would be either of the following dates:  18
July 2004; or the date the Federal Recognition was extended in the higher
grade; or the date following the date Federal Recognition was terminated in
the current Reserve grade.

3.  Additionally, in January 2004, the Director, ARNG, NGB, established
promotion policy for mobilized the ARNG that allowed for officers who
reached the MTIG and had neither delayed nor declined their promotion would
be promoted whether or not assigned against a position of the higher grade.
 Therefore, the applicant was eligible for promotion to captain with an
effective date and date of rank of 18 July 2004, his MTIG date, under this
policy.

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

BOARD VOTE:

___LS___  ____PS     ___AM__  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
State of Tennessee 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 18 July 2004,
with entitlement to back pay and allowances based on these adjustments.




                                  _____ Linda Simmons_____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050016823                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060928                                |
|TYPE OF DISCHARGE       |NA RC Soldier not on AD                 |
|DATE OF DISCHARGE       |NA RC Soldier not on AD                 |
|DISCHARGE AUTHORITY     |NA RC Soldier not on AD                 |
|DISCHARGE REASON        |NA RC Soldier not on AD                 |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Ar 15-185                               |
|ISSUES         1.       |131.00                                  |
|2.                      |131.01                                  |
|3.                      |131.05                                  |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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