RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 October 2006
      DOCKET NUMBER:  AR20060002542


      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:

|     |Mr. John P. Infante               |     |Chairperson          |
|     |Mr. Gerald J. Purcell             |     |Member               |
|     |Ms. Karmin S. Jenkins             |     |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) for promotion to
Major,   O-4 be adjusted to 22 June 2004 with full back pay and allowances.

2.  The applicant states that he was in the U. S. Army Reserve (USAR), the
Individual Ready Reserve (IRR), when he was selected for promotion to
Major.  A promotion letter was issued making his promotion August 2003.
[By the time he received the letter he was in the Army National Guard
(ARNG).]  The State told him the letter was invalid because the Reserve
Officer Promotions Branch did not have the authority to promote him since
he had re-joined the ARNG.  The order was rescinded with the reason that he
did not have a valid physical on file at that date, which was not correct.
He was told to work through the State.

3.  The applicant states he was finally put in contact with the proper
person in March 2005, but when his promotion order was cut he was given a
DOR of         9 June 2005.  He should have been given a DOR of 22 June
2004, the date he deployed, under the new deployment promotion criteria.

4.  The applicant provides promotion memorandums dated 28 February 2005 and
17 March 2005; a void promotion memorandum dated 28 February 2005; State
promotion orders dated 31 May 2005; a National Guard Bureau (NGB)
memorandum dated 1 September 2004; an 8 September 2005 letter from the
Office of the Inspector General, NGB; active duty orders dated 9 June 2004;
deployment orders dated 4 August 2004; and a DD Form 2808 (Report of
Medical Examination), examination completed on 10 August 2003.

CONSIDERATION OF EVIDENCE:

1.  The applicant served in Operation Enduring Freedom.

2.  After having had prior enlisted service in the USAR, the applicant was
commissioned as a Second Lieutenant in the USAR on 14 May 1988.  He
accepted an appointment in the ARNG on 15 May 1988.  He was promoted to
First Lieutenant on 24 May 1991 and to Captain, O-3 on 13 March 1997.  He
separated from the ARNG on 21 April 2001 and was transferred to the USAR.

3.  The applicant was considered and selected for promotion to Major by the
2003 Major Reserve Components Selection Board that adjourned on 4 April
2003 and was approved on 17 July 2003.

4.  The applicant provided a DD Form 2808 showing he completed a physical
examination on 10 August 2003.  (Only the first two pages of the DD Form
2808 were filed on his Official Military Personnel File (OMPF).  The third
page, which shows the examination was completed, signed by the
reviewing/approving authority, and signed by the administrative reviewing
authority, was not filed in his OMPF.)  The DD Form 2808 is identified as
an “enlistment” examination (rather than a retention examination), and item
74a indicates that the applicant was qualified for “enlistment.”

5.  The applicant transferred to the ARNG on 26 September 2003.

6.  The applicant was ordered to active duty on 22 June 2004.  He deployed
to Afghanistan on 6 August 2004 where he performed duties as an embedded
tactical trainer – company mentor for a 137-man Afghan Infantry Rifle
Company.

7.  By memorandum dated 1 September 2004, the U. S. Army Human Resources
Command – St. Louis (USAHRC – STL) informed the ARNG Personnel Center that
the applicant was selected for promotion to Major.  The applicant’s
promotion eligibility date was listed as 22 May 2003 in this memorandum.
It was also noted that the effective date of his promotion would be either
22 May 2003; the date Federal Recognition in the higher grade was extended;
or the date following the date Federal Recognition was terminated in his
current Reserve grade.

8.  USAHRC – STL issued another memorandum, dated 28 February 2005,
informing the applicant he had been selected for promotion as a Reserve
Commissioned Officer of the Army (to Major) with a date of rank of 1 August
2003.

9.  In a memorandum dated 17 March 2005, USAHRC – STL informed the ARNG
Personnel Center that the applicant was selected for promotion by the board
that adjourned on 4 April 2003 with a promotion eligibility date listed as
22 May 2003. He was also notified that the effective date of his promotion
would be either       22 May 2003; the date Federal Recognition in the
higher grade was extended; or the date following the date Federal
Recognition was terminated in his current Reserve grade.

10.  On an unknown date, USAHRC – STL’s 28 February 2005 memorandum was
voided.

11.  On orders dated 31 May 2005, the State promoted the applicant to
Major.  The orders noted that the applicant was a Department of the Army
selectee.  He would have 180 days upon release from active duty to find a
position [in the higher grade] or be involuntarily transferred to the IRR.
He was granted Federal Recognition effective 9 June 2005.
12.  The applicant redeployed on 28 July 2005 and, on 27 August 2005, he
was released from active duty.  Effective 28 February 2006, he was
separated from the ARNG and transferred to the IRR.

13.  In the processing of this case, an advisory opinion was provided by
the Office of Promotions, Reserve Components, USAHRC – STL.  That office
noted that the applicant was in the IRR at the time the 2003 Major Reserve
Components Selection Board was approved on 17 July 2003, and he was issued
a promotion order with 1 August 2003 as his DOR.  Information was later
received that indicated he had an outdated physical, making him ineligible
for promotion, so the promotion order was voided.  When the applicant
became eligible for promotion, he had [already] transferred to the ARNG
[effective date   of transfer 26 September 2003].  A letter was sent on 1
September 2004 transferring promotion authority to the ARNG.  The ARNG
promoted him on         9 June 2005.  He was mobilized on 22 June 2004,
making him eligible for promotion under the new policy for mobilized
Soldiers.  That office could not speculate why he was not promoted by the
ARNG under the new policy.

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

15.  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 USAR 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.

16.  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.

17.  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) ARNG 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
promote mobilized officers under this policy, there is no requirement to do
so.

18.  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 IRR.

19.  Army Regulation 135-155, paragraph 4-11 states that an officer who has
been recommended for promotion to the next higher grade must meet all of
the listed requirements, to include being medically qualified, before being
promoted in the Reserve Components.  Paragraph 4-21 states that an officer
is promoted after selection if all qualifications for promotion are met.
When an officer does not meet the qualifications for promotion (paragraph 4-
11), the effective date of promotion will not be earlier than the later
date all qualifications are met.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was selected for promotion to Major by the 2003 Major
Reserve Components Selection Board that was approved on 17 July 2003.  He
was given a promotion eligibility date of 1 August 2003.  The applicant was
still in the USAR as of that date.  He did not transfer to the ARNG until
26 September 2003.

2.  It is not known why USAHRC – STL did not issue a promotion memorandum
until 20 September 2004.  There was some confusion in all the promotion
memorandums that were issued – the applicant’s promotion eligibility date
was variously listed as 22 May 2003 or 1 August 2003.

3.  It is acknowledged that the applicant’s OMPF contained only a partial
DD Form 2808.  Nevertheless, he provided an entire DD Form 2808 to show
that he did complete a physical examination on 10 August 2003, prior to his
transferring to the ARNG.  It appears he was certainly physically fit
enough to complete almost a year in Afghanistan performing duties with an
Afghan Infantry Rifle Company.

4.  The applicant was separated from the ARNG effective 28 February 2006
and transferred to the IRR.

5.  In view of the above facts, it would be equitable to correct the
applicant’s records to show he was promoted to Major in the USAR with a DOR
and effective date of 10 August 2003.  Promotion to Major with a DOR of 22
June 2004 under the new deployment promotion policy is therefore no longer
an issue.

BOARD VOTE:

__jpi____  _gjp____  _ksj____  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 he was promoted to Major while still in the U. S. Army Reserve with
a date of rank and effective date of 10 August 2003; that Army records be
corrected to show he was accepted as and served as a Major while in the
Army National Guard; and that he be paid any and all back pay and
allowances due as a result of this correction.




                                  __John P. Infante_____
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20060002542                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061012                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |Mr. Shatzer                             |
|ISSUES         1.       |131.05                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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