RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 September 2006
      DOCKET NUMBER:  AR20050018185


      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. Allen L. Raub                 |     |Chairperson          |
|     |Ms. Linda M. Barker               |     |Member               |
|     |Mr. Qawiy A. Sabree               |     |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 to captain from 30 October 2005 to 30
October 2004.

2.  The applicant states that he was mistakenly command directed from a
captain's position to a first lieutenant's slot while his promotion packet
(captain) was awaiting approval by the state of Kansas.  “The DMD position
he was assigned to authorized one grade over.”  When approached about his
pending promotion, the mobilization officer assured him that he could get
promoted against the slot he was vacating.  It took 7 months to transfer
him to a captain's position and then another 4 months to receive the
promotion.

3.  The applicant also states that his unit, Medical Detachment, submitted
a promotion request in September.  In the Medical Detachment, he held a
captain's position as a first lieutenant and would have become eligible for
promotion on 30 October 2004.  On 3 October 2004, he was command directed
to fill a vacancy for mobilization.  He immediately notified the state
mobilization officer that he had a pending promotion but was assured that
the transfer would not affect the promotion packet already submitted by the
State.  In November 2004, he was advised by the state of Kansas that his
promotion packet was denied because he was not in the paragraph and line
number of the position in Medical Detachment upon the date of promotion
eligibility.  Had he been transferred and mobilized on 1 November 2004, he
would have been eligible for the promotion.

4.  The applicant further states that subsequently, he was assigned and
promoted by the state of Kansas on 22 June 2005 against a new vacancy
within his mobilized unit.  Unfortunately, Federal Recognition was not
granted until 3 October 2005.  Effectively, his promotion occurred roughly
one year after his eligibility date.  Due to the numerous errors that have
occurred, he requests that his date of rank be adjusted.

5.  The applicant provides copies of memorandums of support from the
Assistant Adjutant General, Kansas Army National Guard (KSARNG) and the
Deputy Commander, Civil-Military Operations, Multi-National Brigade, Camp
Bondsteel, Kosovo, APO; his command directed reassignment memorandum; his
assignment and active duty orders; his captain promotion orders; and his
Federal Recognition orders, in support of his request.




CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was appointed in the KSARNG,
as a second lieutenant, effective 30 October 2000.  He was promoted to
first lieutenant effective 30 October 2002.

2.  Based on the required 2 years minimum time in the lower grade, his
promotion eligibility date for captain was 30 October 2004.

3.  In a memorandum, dated 7 September 2004, The Adjutant General (TAG),
Joint Forces Headquarters, KSARNG, command directed the applicant into a
635th Armor Battalion vacant slot in support of the global war on
terrorism.

4.  In a memorandum, dated 31 March 2005, the Assistant TAG, KSARNG,
requested an exception to Personnel Policy Guidance (PPG) Annex 1, dated
9 March 2005, for the applicant.  The Assistant TAG stated that the
applicant was eligible for promotion on 31 October 2004[sic].  Due to a
deployment need, his command directed the applicant from a captain's
position to a first lieutenant's position to fill a critical position.  The
applicant's unit, 1st Battalion, 635th Armor, had deployed to Kosovo as
part of rotation K4B and would not return until March 2006.  Under the
current PPG guidance, the applicant would be ineligible for promotion until
his return.  If this request was approved, there was a vacant captain
position for which the applicant was qualified in the Area Medical
Detachment.  He further stated that the applicant had met the requirement
for promotion and he wanted the applicant vacancy promoted as soon as
possible.

5.  Orders Number 277-765, dated 3 October 2004, show the applicant was
transferred on 7 September 2004 to a slot with the 635th Armor Battalion
for mobilization.

6.  Orders Number 280-792, dated 6 October 2004, show the applicant was
released from the 635th Armor Battalion and transferred to a medical
officer position with the 635th Armor Battalion for mobilization.

7.  Orders Number 282-158, dated 8 October 2004, show the applicant was
ordered to active duty in support of Operation Enduring Freedom, with a
reporting date to his mobilization station of 27 October 2004.  He entered
on active duty effective 24 October 2004.

8.  On 22 June 2005, a Federal Recognition Examining Board (FREB)
considered and determined the applicant qualified for Federal Recognition
and promotion to captain.
9.  In a memorandum, dated 27 November 2005, the Deputy Commander, Civil-
Military Operations, Multi-National Brigade, Camp Bondsteel, Kosovo, APO,
requested favorable consideration of adjusting the applicant's date of rank
to captain to his date of eligibility of 30 October 2004.  The Deputy
Commander suggested that if the board could not justify 30 October 2004,
several other dates between his eligibility date and Federal recognition
date should be considered.  He stated, it had taken over a year to correct
a misinterpretation/
misunderstanding of policy and regulation, a mistake which cost the
applicant a year of captain's pay and time in grade while mobilized.

10.  The Deputy Commander also stated that he conducted a commander's
inquiry into the situation.  Facts uncovered by his inquiry showed that the
mobilization officer verified that the applicant had brought up this
concern in September 2004.  The mobilization officer still believed the
applicant could be promoted due to DMD over grade, and that the command-
direct reassignment from a captain to first lieutenant's position would not
have an impact on the applicant's promotion.  The applicant's mobilization
could have been delayed one week so that he could have been promoted, and
then assigned to the first lieutenant position he occupied on the DMD one
grade over authorized.

11.  The Deputy Commander further stated that according to G1 for the
KSARNG, the Officer Branch officer-in-charge knew this was an issue before
mobilization and it could have been resolved; however, the issue was not
brought to the attention of the appropriate authority.  The applicant's
promotion went unresolved until 6 June 2005 when a captain's position
became available in Task Force Falcon, Kosovo. It was not until 22 June
2005 that the KSARNG cut a promotion order and 3 October 2005 before
Federal Recognition was received.

12.  The KSARNG issued Orders Number 172-722, dated 22 June 2005, promoting
the applicant to captain effective 22 June 2005.

13.  The National Guard Bureau (NGB) issued Special Orders Number 287 AR,
dated 3 October 2005, extending Federal recognition and promoting the
applicant to captain effective 3 October 2005.

14.  The applicant was released from active duty effective 12 February 2006
and was transferred to an ARNG unit.

15.  In an advisory opinion, dated 3 July 2006, the Chief, Personnel
Division, Departments of the Army and the Air Force, NGB, reiterated the
applicant's requests and contentions.  The Personnel Division official
stated that the applicant was promoted to first lieutenant on 30 October
2002, per Federal Recognition Special Orders Number 308 AR, dated 6
November 2002.  On 6 May 2004, the applicant completed the Patient
Administration Officer/Associate Health Care Administration course.  The
KSARNG sent a memorandum to the applicant on 17 July 2004, request for
commissioned officer classification to be qualified in the medical service
corps, area of concentration as a Patient Administration and Health
Services Administration.  Orders Number 277-765, dated 3 October 2004, were
published transferring the applicant from a Medical Detachment to an Armor
Battalion for the purpose of mobilization.  Also Orders Number 282-158,
dated 8 October 2004, were published, ordering the applicant to active duty
for Operation Iraqi Freedom (OIF).

16.  The NGB official also stated, in effect, that TAG sent a memorandum to
the NGB, Strategic Plans and Policy Division (NGB-ARZ) on 31 March 2005,
requesting an exception to the mobilization promotion policy on the
applicant, stating that due to deployment for OIF, he had directed the
applicant's reassignment from a captains' position to a first lieutenant's
position to fill a critical position and under the current guidance the
applicant would be ineligible for promotion until his return from
deployment.  The TAG recommended approval of the request based on a captain
vacancy position which the applicant was qualified for and stated that the
applicant met all the requirements for promotion to the next higher grade.

17.  The NGB official further stated that on 22 June 2005, NGB Form 89
(Proceedings of a FREB) was approved for a position vacancy promotion for
the applicant to be promoted to captain.  Also Orders Number 173-722 were
published for the applicant's promotion to captain effective 22 June 2005.
Federal Recognition Special Orders Number 287 AR were issued promoting the
applicant to captain effective 3 October 2005.

18.  The NGB, Personnel Division official recommended that the applicant's
promotion effective date be adjusted to 22 June 2005, due to the fact that
TAG approved the applicant to be promoted on that date based on a position
vacancy promotion.  The NGB, Personnel Policy and Readiness Division
concurred with the Personnel Division recommendations.  The office of the
ARNG Chief Surgeon, Medical Branch, also concurred with the Personnel
Division on adjusting the applicant's promotion effective date to 22 June
2005.

19.  The advisory opinion was forwarded to the applicant for
acknowledgement and/or rebuttal on 10 July and he concurred on 22 July
2006.

20.  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, an 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.

21.  National Guard Regulation 600-100, chapter 8 also specifies that
officers serving in a unit where a position vacancy exits may be promoted
by the State to fill the position vacancy.  However, until Federal
Recognition in the new rank is extended by the NGB, the individual cannot
be promoted and paid for the higher rank.  The NGB has advised in similar
cases such as this that recommendations for promotion must be processed
through NGB staff to obtain approval of the promotion by the President, and
that the approval process normally takes approximately 3 months.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is entitled to
an adjustment of his promotion effective date and date of rank for captain
to 22 June 2005, the date the KS TAG approved him for promotion based on a
position vacancy, with entitlement to back pay and allowances.

2.  The evidence of record shows that in March 2005, the Assistant TAG,
KSARNG, requested an exception to the mobilization promotion policy on the
applicant.  The Assistant TAG stated that due to deployment for OIF, he
directed the applicant from a captain position to a first lieutenant
position, a critical position, and under current guidance the applicant
would be ineligible for promotion until his return from deployment.  By all
accounts, it appears it was the intent of the TAG to promote the applicant
to captain by a position vacancy promotion effective 22 June 2005.  The TAG
recommended approval of the request for exception to the mobilization
promotion policy based on the availability of captain vacancy position for
which the applicant was qualified and for which he met all the requirements
for the promotion to the higher grade.  The promotion packet was forwarded
to the NGB for federal recognition processing.  The applicant was extended
Federal recognition and promoted to captain effective 30 October 2005.

3.  The applicant's promotion was delayed through no fault of his own;
therefore, it is concluded that based on a matter of equity and on the
support for favorable consideration expressed by the NGB, Personnel
Division, the Personnel Policy and Readiness Division, and the ARNG Chief
Surgeon, Medical Branch, the applicant should be granted relief as
recommended.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__ALR_ _  __LB____  __QAS__  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 Kansas 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 22
June 2005, 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
30 October 2004, with entitlement to back pay and allowances.




                                  _____Allen L. Raub______
                                           CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050018185                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |                                        |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.00                                  |
|2.                      |131.01                                  |
|3.                      |131.05                                  |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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