RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        24 October 2006
      DOCKET NUMBER:  AR20050018315


      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. Maria C. Sanchez              |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Carmen Duncan                 |     |Chairperson          |
|     |Mr. Jerome L. Pionk               |     |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, in effect, that his date of rank for the grade
of lieutenant colonel be adjusted from 9 August 2005 to 22 April 2005.

2.  The applicant states, in effect, that the date of promotion to the
grade of lieutenant colonel should be 22 April 2005, the day after he
reached his maximum time-in-grade for major.  He continues that when he
received the promotion notification from a Department of the Army (DA)
Mandatory Board on 14 December 2004, he was on active duty at the Defense
Intelligence Agency (DIA).

3.  The applicant further stated that DIA requested the Massachusetts Army
National Guard (MAARNG) to promote him to the grade of lieutenant colonel
since he was serving in that capacity for DIA; however, MAARNG declined
stating that they did not have any lieutenant colonel positions available.

4.  The applicant indicated that based on law, regulation, and National
Guard Bureau policy, his MAARNG unit should have proceeded with the
promotion to the grade of lieutenant colonel when he reached his maximum
time-in-grade on 22 April 2005.  He continued that he acknowledged and
understood the possible ramifications when requesting a promotion action to
the grade of lieutenant colonel and was willing to take the risk of being
involuntarily separated from the Army National Guard (ARNG) and losing his
civilian technician employment if no vacancy position in the grade of
lieutenant colonel was available.

5.  The applicant provides a copy of a National Guard Bureau memorandum,
dated 30 January 2004; a National Guard Bureau memorandum, dated
1 September 2004; a Joint Force Headquarters, Massachusetts National Guard,
Office of the Adjutant General Orders Number 207-19, dated 26 July 2005; a
National Guard Bureau promotion notification letter, dated 9 August 2005;
Federal Recognition Orders Number 235 AR, dated 9 August 2005; a Iraq
Survey Group memorandum, dated 23 March 2005; a U.S. Army Human Resources
Command memorandum, dated 14 December 2004; an Iraq Survey Group
memorandum, dated 30 March 2005; sixteen pages of electronic email; a DIA
Form 56 (Defense Intelligence Agency Document Transmittal) dated 30 March
2005; a Defense Intelligence Support Office – Iraq, dated 15 July 2005; a
DA Form 4186 (Medical Recommendation for Flying Duty), dated 3 June 2005;
and a DA Form 7349 (Initial Medical review – Annual Medical Certificate),
dated 27 July 2005, in support of his application.


CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving as a lieutenant colonel in the
MAARNG.

2.  Federal Recognition Special Orders Number 73 AR, dated 22 April 1998,
awarded the applicant permanent Federal Recognition for the purpose of
promotion to the grade of major, effective 22 April 1998.

3.  U.S. Army Human Resources Command memorandum, dated 14 December 2004,
shows that the applicant was selected for promotion to the grade of
lieutenant colonel by a DA Mandatory Promotion Board.

4.  On 23 March 2005, the applicant submitted a memorandum to the Adjutant
General's Office, wherein he accepted and requested promotion to the grade
of lieutenant colonel effective no later than 21 April 2005.  The applicant
informed the Adjutant General's Office that he was deployed to Iraq in
support of DIA – Iraq Survey Group as the executive officer for the Defense
Intelligence Senior Office for all of U.S. Central Command (CENTCOM) DIA.

5.  The applicant contended that he was selected for promotion to the grade
of lieutenant colonel by a DA Mandatory Board in September 2004.  He
further stated that he was a mobilized officer who would reach his maximum
time-in-grade by 22 April 2005, had neither delayed nor declined his
promotion, and in reference to the Chief, National Guard Bureau memorandum,
dated 30 January 2004, "will be promoted whether or not assigned against a
position of the higher grade."

6.  On 30 March 2005, the Joint Staff, Logistics of the DIA Iraq Survey
Group recommended the applicant be promoted in the Army National Guard
(ARNG).

7.  On 15 July 2005, the applicant submitted a memorandum to the Adjutant
General of Massachusetts wherein he acknowledged that he was being promoted
in accordance with the National Guard Bureau memorandum, dated 30 January
2004, upon reaching the maximum time-in-grade.  The applicant further
acknowledged that if he did not occupy a position of the grade to which he
was being promoted on the last day of the 6th month following his
demobilization, he would be involuntarily transferred to the Individual
Ready Reserve (IRR).

8.  Joint Force Headquarters, Massachusetts National Guard, Office of the
Adjutant General Orders Number 207-19, dated 26 July 2005, promoted the
applicant to the grade of lieutenant colonel effective 9 August 2005.
These orders stipulated that he was not entitled to Federal pay as a
lieutenant colonel until he was extended Federal Recognition by the
National Guard Bureau.

9.  On 9 August 2005, the Army National Guard Bureau notified the applicant
that he was selected for promotion to the grade of lieutenant colonel
effective 9 August 2005.

10.  Federal Recognition Special Orders Number 235 AR, dated 9 August 2005,
awarded the applicant permanent Federal Recognition for the purpose of
promotion to the grade of lieutenant colonel, effective 9 August 2005.

11.  The applicant submitted a copy of the National Guard Bureau, NGB-ARH,
memorandum, dated 30 January 2004, regarding promotion of mobilized Army
National Guard Officers who were selected for promotion by a DA Mandatory
Promotion Board.  This memorandum stated, in part, that mobilized officers
who reached their maximum time-in-grade and have neither delayed nor
declined their promotion would be promoted whether or not assigned against
a position of the higher grade.

12.  The applicant submitted a National Guard Bureau, NGB-ARH, memorandum,
dated 1 September 2004, regarding the clarification of policy to promote DA
Selected Mobilized Officers at maximum time-in-grade.  This memorandum, in
part, stated that ARNG officers recommended for promotion to the grades of
captain through lieutenant colonel mobilized under the provisions of Title
10, United States Code, section 12301(a), 12302 and 12304, and who are on
an approved mandatory selection board promotion list who reached their
maximum time-in-grade would be promoted without regard to a position
vacancy unless that officer had voluntarily delayed or declined a
promotion.

13.  The applicant submitted sixteen pages of electronic emails for the
period 3 May 2005 through 28 July 2005.  In summary, the applicant
corresponded with officials at the MAARNG regarding his promotion to
lieutenant colonel based on the fact that he reached the maximum time-in-
grade for the grade lieutenant colonel and was mobilized.  The emails show
that the applicant was informed that MAARNG did not have current position
and may not have any vacant positions for lieutenant colonels when he was
demobilized which could result in his separation from the MAARNG, and
transferred to the IRR.




14.  The Chief of Personnel Division of the National Guard Bureau,
Arlington, Virginia, provided an advisory opinion in this case.  The Chief
of Personnel Division stated that the applicant alleged that his date of
promotion to the grade of lieutenant colonel should be 22 April 2005, the
date after reaching his maximum time-in-grade for the rank of major and
also due to his status as a mobilized active duty Soldier.  The Chief of
Personnel Division continued that the applicant was mobilized on active
duty on 17 November 2004, received his DA selection memorandum for
promotion on 14 December 2004, and that the DIA requested the MAARNG
promote him to the grade of lieutenant colonel.

15.  The Chief of Personnel Division stated that MAARNG declined to promote
him because they did not have any lieutenant colonel positions available at
that time.  The Chief of Personnel Division continued that the applicant's
status as an mobilized officer in support of Operation Iraqi Freedom was an
exception to the normal requirements for a home unit lieutenant colonel
position for promotion upon reaching maximum time in grade as a major and
with the understanding that upon six months after returning from
deployment, if not placed in a lieutenant colonel position, he would be
automatically transferred to the IRR.

16.  The Chief of Personnel Division stated the DA Directory of Military
Personnel, Fort Belvoir, Virginia, Order Number 336-16, dated 1 December
2004, reassigned the applicant to DIA for the purpose of deployment,
effective 22 November 2004.  The Chief of Personnel Division continued that
Human Resource Command – St. Louis sent a memorandum, dated 14 December
2004, regarding eligibility for promotion as a reserve commissioned officer
not on active duty, for promotion to lieutenant colonel with a promotion
effective date 21 April 2005.

17.  The Chief of Personnel Division further stated that e-mail traffic
between the applicant and the State Military Personnel Office (MILPO), G-1,
clearly reflected that the applicant knew the policies established for
promotion of deployed Soldiers and wanted to be promoted based on these
policies.  The Chief of Personnel Division continued that the G-1 did not
want to promote the applicant because MAARNG did not have any lieutenant
colonel positions available upon his return from Operation Iraqi Freedom.

18.  The Chief of Personnel Division indicated that MAARNG published
orders, on 26 July 2005, promoting the applicant; that on 9 August 2005, he
was federally recognized; and on 13 October 2005, he was extended on active
duty for a period of two more years in support of Operation Iraqi Freedom.


19.  The Chief of Personnel Division stated that the Assistant Secretary of
the Army sent a memorandum, dated 17 December 2003 to the Deputy Chief of
Staff for Personnel (G-1) regarding promotions of mobilized reserve
component officers on the reserve active status list.  The Chief of
Personnel Division stated that this memorandum established promotion policy
for mobilized reserve component officers for promotion to the grades of
captain through colonel.

20.  The Chief of Personnel Division continued that the memorandum also
stated that a mobilized Army National Guard of the United States (ARNGUS)
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 the higher grade in a Federally
recognized unit in the National Guard.  The Chief of Personnel Division
indicated that an officer promoted under this policy should be assigned to
that position against which the officer was matched or appointed within 180
days after demobilization and the policy further stated that the Director,
Army National Guard implemented this policy memorandum, that they will
ensure that promotions do not exceed the personnel strength and strength-in-
grade limitation of Title 10, United States Code.

21.  The Chief of Personnel Division further indicated that 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.

22.  The Chief of Personnel Division stated that per memorandum, dated
30 January 2004, from the Director, Army National Guard, regarding
promotion of mobilized Army National Guard officers, who were selected for
promotion by a DA Mandatory Promotion Board, indicated that the Assistant
Secretary of the Army by memoranda, authorized the States to promote
mobilized officers under this policy and there was no requirement to do so.
 The Chief of Personnel Division further indicated that mobilized officers
who reached maximum time-in-grade and have neither delayed nor declined
their promotion would be promoted whether or not assigned against a
position of a higher grade.






23.  The Chief of Personnel Division indicates that Title 10, United States
Code, sections 14304(b) and 14316 (D) states that a mobilized Reserve
component officer who has been recommended for promotion to the grades of
captain through lieutenant colonel by a mandatory promotion board and who
is on an approved promotion list shall be promoted without regard to the
existence of vacancy or placement against a position of a higher 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.

24.  The Chief of Personnel Division recommended approval to adjust the
applicant's promotion effective date from 9 August 2005 to 22 April 2005
due to the fact that he reached the maximum time-in-grade as a major on 21
April 2005 and that he was activated in support of Operation Iraqi Freedom
effective 22 November 2004.

25.  The applicant was provided a copy of the advisory opinion for review
and comment.  On 25 March 2006, the applicant responded and concurred with
the advisory opinion.

26.  Title 10, United States Code, section 14304(b) states that an officer
holding a permanent grade who is recommended for promotion to the next
higher grade by a selection board the first time the officer is considered
for promotion while in or above the promotion zone, and who is placed on an
approved promotion list, shall (if not promoted sooner or removed from that
list by the President or by reason of declination) be promoted, without
regard to the existence of a vacancy, on the date on which the officer
completes the maximum years of service in grade.

27.  Title 10, United States Code, section 14316(d) states that, if, on the
date of which an officer of the Army National Guard of the United States or
of the Air National Guard of the United States who is on a promotion list
is to be promoted, the officer has not been promoted to fill a vacancy in
the higher grade in the Army National Guard or the Air National Guard, the
officer’s Federal recognition in the officer’s reserve grade shall be
withdrawn and the officer shall be promoted and transferred to the Army
Reserve or the Air Force Reserve as appropriate.





28.  Army Regulation 135-155 (Promotion of Commissioned Officers and
Warrant Officers Other than General Officers) provides policy for selecting
and promoting commissioned officers of both the ARNGUS and the USAR, and
warrant officers of the USAR.  Table 2-1 shows the time in grade
requirements for commissioned officers, other than commissioned warrant
officers.  This table shows that the maximum years in the lower grade for
the grade of lieutenant colonel are 7 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his date of rank for the grade of
lieutenant colonel be adjusted from 9 August 2005 to 22 April 2005 because
he reached the maximum time-in-grade as a major and was on active duty in
support of Operation Iraqi Freedom at that time.

2.  Evidence shows the applicant was promoted to the grade of major on 22
April 1998.

3.  Evidence shows that the applicant reached his maximum time-in-grade on
21 April 2005 and that he did not decline nor delay his promotion to the
grade of lieutenant colonel.

4.  Evidence shows the applicant submitted a request to the MAARNG
regarding his promotion to the grade of lieutenant colonel based on
reaching his maximum time-in-grade and was informed that they could not
promote him because there were no vacant lieutenant colonel positions
available.  Evidence further shows that he then acknowledged and requested
a promotion to the grade of lieutenant colonel with the risk of being
discharged from the ARNG, transferred to the IRR, and losing his technician
status if a position was not available after he was demobilized.

5.  Law and regulation states that an officer holding a permanent grade who
was recommended for promotion to the next higher grade by a selection
board, and who is placed on an approved promotion list, shall be promoted,
without regard to the existence of a vacancy, on the date on which the
officer completes the maximum years of service in grade.

6.  The National Guard Bureau established policy in January 2004 that
mobilized Army National Guard Officers who were selected for promotion by a
DA Mandatory Promotion Board, who reached the maximum time-in-grade, and
had neither delayed nor declined their promotion would be promoted whether
or not assigned against a position of the higher grade.

7.  In accordance with applicable law, regulation, and policy, the
applicant was recommended for promotion by a DA Mandatory Board while
serving on active duty as a mobilized officer, therefore, he is entitled to
promotion to lieutenant colonel without regard for available position on
the date on which he reached his maximum time-in-grade.  As a result, he is
entitled to correction of his records to show that he was promoted to
lieutenant colonel effective 22 April 2005.

BOARD VOTE:

__JLP___  _RMN___  _CD____  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
Department of the Army records of the individual concerned be corrected by
showing that he was promoted to lieutenant colonel effective 22 April 2005.




                                  ____Carmen Duncan_______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050018315                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |YYYYMMDD                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Shatzer                             |
|ISSUES         1.  315  |131.0500.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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