RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 September 2006
      DOCKET NUMBER:  AR20060000093


      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. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Paul M. 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 that his date of rank (DOR) to lieutenant
colonel (LTC), O-5 be adjusted to 27 January 2003.

2.  The applicant states he was selected by a position vacancy board for
promotion to LTC on 27 January 2003.  He was mobilized at the time and,
under [Army National Guard (ARNG)] Personnel Policy Guidance, could not be
promoted since there was no LTC vacancy in his unit.  That policy did not
allow officers who were selected for promotion by a Department of the Army
mandatory board to be promoted against a position back in the State while
mobilized.  The policy has since been changed. The change should have been
made retroactive to allow for officer promotions such as his.  Instead, he
is being penalized for being mobilized.  That in turn has affected his pay
and DOR for promotion consideration to the next grade.

3.  The applicant provides his Department of the Army Board Selection
Notification memorandum dated 20 November 2001; Federal Recognition orders
dated 9 June 2004; his State Board Selection Notification memorandum dated
  8 March 2003; mobilization orders dated 25 and 27 January 2003, 21
February 2003, 1 April 2003, 5 November 2003, and 4 April 2004; and his DD
Form       214 (Certificate of Release or Discharge from Active Duty) for
the period ending 28 May 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant served in Operation Iraqi Freedom.

2.  After having had prior enlisted service in the Air National Guard and
the ARNG, the applicant was appointed a second lieutenant in the ARNG on 25
June 1988.  He was promoted to major, O-4 on 1 December 1995.

3.  On 20 November 2001, the applicant was notified that he was selected
for promotion to LTC as a Reserve commissioned officer not on active duty,
to be effective 30 November 2002.

4.  On 10 March 2002, the applicant requested a delay of promotion as a
Reserve of the Army and ARNG officer until 29 November 2005.  His request
was approved on 8 May 2002.

5.  The applicant entered active duty on 27 January 2003.

6.  The applicant provided an 8 March 2003 memorandum from the Alabama
State Military Department, subject:  State Promotion and Career Management
Board Results, indicating he was selected from the Order of Merit List(s)
for promotion by the State Promotion and Career Management Board.

7.  The applicant arrived in Kuwait/Iraq on or about 16 April 2003.

8.  The applicant was released from active duty on 28 May 2004.

9.  Effective 9 June 2004, the applicant was promoted by the State to LTC.
He was granted Federal Recognition effective 9 June 2004.  He was promoted
to LTC as a Reserve commissioned officer of the Army effective 9 June 2004.

10.  By memorandum dated 17 December 2003, the Office of the Assistant
Secretary of the Army (Manpower and Reserve Affairs), established promotion
policy for mobilized Reserve Component officers for promotion to the grades
of captain through colonel.  The policy memorandum provides an exception to
Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant
Officers other than General Officers), paragraph 4-9a, which requires as a
condition for promotion that a U. S. Army Reserve Troop Program Unit
officer selected by a mandatory promotion board be assigned or attached to
a permanent Reserve Component position requiring the higher grade.  To the
extent that other provisions of other regulations, to include National
Guard Regulation 600-100 (Commissioned Officers – Federal Recognition and
Related Personnel Actions), conflict with this policy memorandum, those
provisions are waived with respect to those officers to whom this policy
applies for as long as this policy memorandum is in effect.

11.  The 17 December 2003 memorandum went on to state that a mobilized Army
National Guard 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 an 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.  An officer promoted under this policy memorandum should be assigned
to that position against which the officer was matched or appointed within
180 days after demobilization.

12.  The 17 December 2003 memorandum further stated, “If the Chief, Army
Reserve, and the Director, Army National Guard, implement this policy
memorandum for their respective components, then they will ensure that
promotions do not exceed the personnel strength and strength-in-grade
limitations of Title 10, United States Code.  Any proposed guidance to
implement this policy memorandum that will be issued by either the Chief,
Army Reserve, or the Director, Army National Guard, must be coordinated
with the Deputy Chief of Staff, G-1, and approved by the Assistant
Secretary of the Army (Manpower and Reserve Affairs).”

13.  By memorandum dated 30 January 2004, the Director, Army National Guard
implemented the promotion policy outlined by the Assistant Secretary of the
Army (Manpower and Reserve Affairs) memorandum dated 17 December 2003.
Effective the date of this memorandum (i.e., 30 January 2004) Army National
Guard officers mobilized under the provisions of Title 10, U. S. Code,
section 12301(a), 12302, and 12304, who have been selected for promotion by
a Department of the Army mandatory promotion board, may be promoted
immediately when appointed in the State against a position of the higher
grade the officer will occupy upon demobilization.  While the memorandum
authorizes States to promoted mobilized officers under this policy, there
is no requirement to do so.

14.  The 30 January 2004 memorandum went on to state that when a mobilized
officer is promoted against a position in the State, the officer must be
assigned to the position immediately following demobilization and release
from active duty.  If, within 180 days following demobilization, an officer
declines or is unwilling or unable to occupy the position against which the
officer was promoted, or is unable to occupy any other position of the
higher grade for which he/she is qualified, then the officer shall be
transferred immediately to the Individual Ready Reserve.

15.  National Guard Regulation 600-100, paragraph 8-15 states an ARNG
commissioned officer, not on active duty, who is selected for promotion as
a Reserve commissioned officer of the Army resulting from mandatory
consideration may be extended Federal Recognition in the higher grade
subject to several conditions, including that the officer has reached his
or her promotion eligibility date and that the officer is promoted in a
State status to fill an appropriate position vacancy in the higher grade.

16.  In the processing of this case, an advisory opinion was obtained from
the Personnel Division, National Guard Bureau.  That office recommended the
applicant’s date of rank and promotion effective date to LTC be adjusted to
      30 January 2004, the date on which the Director, Army National Guard
signed the [new promotion] policy to be in effect for all Army National
Guard officers mobilized under the provisions of Title 10, U. S. Code,
section 12301(a), 12302, and 12304.

17.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  He did not respond within the given time frame.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been carefully considered.

2.  The applicant had been selected for promotion to LTC by a Department of
  the Army mandatory promotion board, with an effective date of promotion
of      30 November 2002.  He requested a 3-year delay in promotion.

3.  It appears the applicant was selected for promotion to LTC by a
position vacancy board at the same time he was mobilized for deployment.
However, policy at that time did not allow officers who were selected for
promotion by a Department of the Army mandatory board to be promoted
against a position back in the State while mobilized.

4.  The promotion policy that prevented the applicant being promoted
against a unit vacancy while he was mobilized by changed by the Director,
Army National Guard on 20 January 2004.  Although the applicant contends
the change should have been made retroactive, the Assistant Secretary of
the Army (Manpower and Reserve Affairs) did not provide for this policy to
be made retroactive.  The applicant has fallen under the same circumstances
as other ARNG officers who could not accept a unit vacancy promotion
because they were mobilized.

5.  The applicant was released from active duty on 28 May 2004, assigned to
an LTC position, and subsequently promoted to LTC effective 9 June 2004.

6.  Since the applicant was assigned to an LTC position within 180 days of
his release from active duty, and in accordance with the advisory opinion,
it would be equitable to correct his records to show he was promoted to LTC
with a date of rank and effective date of 30 January 2004 (the effective
date of the policy change).

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__lds___  __pms___  __am____  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 the State Army National Guard records and all Department of
the Army records of the individual concerned be corrected by showing he was
promoted to lieutenant colonel with a date of rank and effective date of 30
January 2004 and granted Federal Recognition as a lieutenant colonel
effective 30 January 2004.

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
adjusting his date of rank to lieutenant colonel to 27 January 2003.




                                  __Linda D. Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000093                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060928                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |131.05                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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