RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        2 November 2006
      DOCKET NUMBER:  AR20060003018


      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             |
|     |Mr. John J. Wendland, Jr.         |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James B. Gunlicks             |     |Chairperson          |
|     |Mr. Scott W. Faught               |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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, correction of his lieutenant colonel
(LTC) date of rank (DOR) and promotion eligibility date (PED), from 20
October 2005 to 2 April 2005, and receipt of all pay and allowances
resulting from the adjustment.

2.  The applicant states, in effect, that he was selected for promotion to
LTC by the Mandatory Department of the Army (DA) Promotion Selection Board
(Army Promotion List) in September 2004 and the list was published in
November 2004 while he was deployed to Afghanistan.  He also states, in
effect, that guidance issued by the DA and National Guard Bureau (NGB)
provides for the promotion of mobilized reserve component officers who are
selected for promotion by a Mandatory DA Promotion Selection Board and who
reach their maximum time in grade.  The applicant further states, in
effect, his promotion was delayed until
20 October 2005 due to an administrative oversight by the New Hampshire
Army National Guard (NHARNG).

3.  The applicant provides a self-authored memorandum, dated 21 February
2006; Headquarters, U.S. Army Human Resources Command (USA HRC),
St. Louis, Missouri, memorandum, dated 14 December 2004, subject:
Eligibility for Promotion as a Reserve Commissioned Officer Not on Active
Duty; Headquarters, NGB, Arlington, Virginia, memorandum, dated 30 January
2004, subject:  Promotion of Mobilized Army National Guard Officers who are
Selected for Promotion by a Department of the Army Mandatory Promotion
Board; Headquarters, NGB, Arlington, Virginia, memorandum, dated 1
September 2004, subject:  Clarification of Policy to Promote DA Select
Mobilized Officers at Maximum Time in Grade (NG-ARH memo #04-0025); Joint
Forces Headquarters (New Hampshire), Concord, New Hampshire, memorandum,
dated 18 January 2005, subject:  Results of DA Mandatory Selection Board
for Promotion from MAJ - LTC; and DA Form 2-1 (Personnel Qualification
Record).

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military service records show that he enlisted in the
ARNG on 14 August 1979, attained the grade of rank of staff sergeant/pay
grade E-6, and attended Officer Candidate School.  On 21 August 1983, the
applicant was appointed a commissioned officer in the ARNG, in the grade of
rank of first lieutenant/pay grade O-1, and was branch detailed as a field
artillery officer.  On
3 April 1998, the applicant was promoted to the grade of rank of major
(MAJ)/
pay grade O-4 and subsequently branch detailed as a signal corps officer.

2.  The applicant's military service records contain a DA Form 1059
(Service School Academic Evaluation Report), dated 19 June 2001, that
shows, in pertinent part, he completed the Command and General Staff
Officer Course.

3.  The applicant's military service records contain a DA Form 1059, dated
11 October 2002, that shows, in pertinent part, he completed the Signal
Officer Advanced Course - Reserve Component.

4.  The applicant's military service records contain a "Corrected Copy" of
Headquarters, Office of the Adjutant General, State of New Hampshire,
Concord, New Hampshire, Orders 156-010, dated 4 June 2004, that show, in
pertinent part, he was assigned as a Signal Company Mentor, effective 2
June 2004.

5.  The applicant's military service records contain a DD Form 214
(Certificate of Release or Discharge from Active Duty) that shows he was
ordered to active duty on 9 July 2004 per Title 10, United States Code,
section 12302.  This document also shows that he served in support of
Operation Enduring Freedom in Afghanistan from 9 August 2004 to 25 July
2005 and that he was honorably released from active duty on 25 August 2005
based upon completion of required active service.

6.  The applicant's military service records contain a "Corrected Copy" of
State of New Hampshire, The Adjutant General, Concord, New Hampshire,
Orders
202-004, dated 21 July 2005, that show, in pertinent part, he was promoted
to the grade of rank of LTC (O-5), effective and with a DOR of 21 July
2005.

7.  The applicant's military service records contain an extract of
Headquarters, NGB, Washington, District of Columbia, Special Orders Number
302 AR, dated 20 October 2005, that announced the extension of Federal
recognition in the ARNG of the applicant's promotion to LTC (O-5),
effective 20 October 2005.

8.  In support of his application the applicant provides a copy of
Headquarters, USA HRC, memorandum, dated 14 December 2004, that, in
pertinent part, advised him of his selection for promotion effective 2
April 2005.  The applicant also provides a copy of Headquarters, NGB,
Arlington, Virginia, memorandum, dated 30 January 2004, that, in pertinent
part, announced policy for promoting ARNG officers mobilized under the
provisions of Title 10, United States Code, sections 12301(a), 12302, and
12304, who have been selected for promotion by a DA mandatory promotion
board.  The NGB memorandum authorizes States to promote mobilized officers
under this policy; however, there is no requirement to do so.  The
applicant also provides a copy of Headquarters, NGB, memorandum, dated 1
September 2004, that clarified the procedures for promoting mobilized ARNG
officers selected for promotion by a DA mandatory promotion board.  This
document shows, in pertinent part, that ARNG officers mobilized under the
provisions of Title 10, United States Code, sections 12301(a), 12302, and
12304, and who are on an approved mandatory selection board promotion list
who reach their maximum time in grade (i.e., for major this is 7 years)
will be promoted without regard to a position vacancy unless that officer
has voluntarily delayed or declined promotion.  The applicant also provides
a copy of Joint Forces Headquarters (New Hampshire), memorandum, dated 18
January 2005, that advised him, in pertinent part, that he was selected for
promotion to LTC and as a result he had two options available:  (1) he may
accept his promotion with assignment to the Individual Ready Reserve (IRR),
or (2) request delay of promotion.

9.  In connection with the processing of this case, the Board requested and
received an advisory opinion from the Chief, Appeals/Analysis Section, DA
Actions Branch, Personnel Division, Headquarters, NGB, Arlington, Virginia.
 The advisory opinion, in pertinent part, confirms that the applicant was
transferred to a LTC (O-5) position on 4 June 2004.

10.  The NGB advisory official states that an Assistant Secretary of the
Army (Manpower and Reserve Affairs), memorandum, dated 17 December 2003,
subject:  Promotion of Mobilized Reserve Component Officers on the Reserve
Active Status List, states that under 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.
It also states 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 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 should be assigned to that position against which the officer
was matched or appointed within 180 days after demobilization.  It further
states that the Director, ARNG implements this policy memorandum, and will
ensure that promotions do not exceed the personnel strength and strength-in-
grade limitation of Title 10, United States Code.  It further states that
the policy memorandum does not preclude a mobilized officer from
voluntarily delaying or declining promotion under the provisions of Title
10, United States Code, section 14312, and Army Regulation 135-255 (Army
National Guard and U.S. Army Reserve - Promotion of Commissioned Officers
and Warrant Officers Other Than General Officers).

11.  The NGB advisory opinion recommends approval of the applicant's
request to adjust his LTC DOR to 2 April 2005 based on the fact that the
applicant was serving in a LTC position when ordered to active duty in
support of Operation Enduring Freedom (from 9 July 2004 through 25 August
2005) under the provisions of Title 10, United States Code, section 12302.

12.  On 12 October 2006, the applicant was provided a copy of the NGB
advisory opinion in order to have the opportunity to respond.  On 17
October 2006, he provided his concurrence with the NGB advisory opinion.

13.  Army Regulation 135-155 (Promotion of Commissioned Officers and
Warrant Officers, Other Than General Officers) prescribes policy and
procedures used in the selection and promotion of commissioned officers of
the ARNGUS and the commissioned and warrant officers of the U.S. Army
Reserve (USAR).  Table 2-1 (Time in Grade Requirements for Commissioned
Officers, Other Than Commissioned Warrant Officers) of this regulation
outlines the service requirements for promotion and indicates that for
promotion to LTC the maximum years in the lower grade is 7 years.  Table 2-
2 (Military Educational Requirement Commissioned Officers, Other Than
Commissioned Warrant Officers Grade) provides, in pertinent part, that for
promotion from MAJ to LTC the officer must have completed 50 percent of the
Command and General Staff Officers Course.

14.  Army Regulation 135-155, paragraph 4-21 (Effective dates), provides,
in pertinent part, the effective date of promotion may not precede the date
of the promotion memorandum.  An officer is promoted after selection if all
qualifications for promotion are met.  When an officer does not meet the
qualifications for promotion, the effective date of promotion will not be
earlier than the later date all qualifications are met.  In no case, will
the date of rank or effective date of promotion be earlier than the date
the board is approved, or, if required, the date of Senate confirmation.

15.  Army Regulation 135-155, Chapter 4 (Processing Selection Board
Recommendations), Section III (Dates of Promotion), provides the procedures
for computing promotion effective dates of all reserve component officers.
This document provides that the DOR is the date the officer meets the
eligibility criteria for promotion to the next higher grade and that an
officer’s PED will become their DOR upon promotion and this date will be
used to establish the relative seniority for officer’s holding the same
rank.  Finally, it states that the DOR will be used to establish the
officer’s PED to the next higher grade.  This document further provides
that only the Secretary of the Army may determine whether an adjustment
must be made to an officer's date of rank and effective date of promotion.
16.  Title 10 of the United States Code, section 14304(b) and 14316(d),
state 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his DOR for LTC should be
changed from 20 October 2005 to 2 April 2005 and he should receive the
appropriate adjustments to his pay and allowances because he was selected
for promotion to LTC by the Mandatory DA Promotion Selection Board in
September 2004.  He also contends, at the time, he was deployed in support
of Operation Enduring Freedom and his promotion was delayed because of an
administrative oversight by the NHARNG and due to no fault of his own.

2.  The evidence of record shows that the applicant was ordered to active
duty on 9 July 2004 in support of Operation Enduring Freedom under the
provisions of Title 10, United States Code, section 12302, and was released
from active duty on 25 August 2005.  The evidence of record also shows that
his PED was 2 April 2005; however, the applicant was not promoted to LTC by
the NHARNG until
21 July 2005, with the extension of Federal recognition of his promotion to
LTC in the ARNG being announced and effective 20 October 2005.

3.  The evidence of record confirms the applicant was selected for
promotion to LTC, with a PED of 2 April 2005, by the Mandatory DA Promotion
Selection Board that adjourned on 29 September 2004.  The evidence of
record also shows that the applicant was assigned to an authorized LTC/O-5
position prior to and on the date the board results were approved, and on
his PED.  The evidence of record further shows that the applicant met the
requirements for promotion to LTC in that he completed the Command and
General Staff Officers Course on
19 June 2001 and the maximum 7 years in the lower grade on 2 April 2005.

4.  The evidence of record further shows that ARNG officers mobilized under
the provisions of Title 10, United States Code, sections 12301(a), 12302,
and 12304, and who are on an approved mandatory selection board promotion
list who reach their maximum time in grade (i.e., for major this is 7
years), will be promoted without regard to a position vacancy unless that
officer has voluntarily delayed or declined promotion.  There is no
evidence of record showing that the applicant voluntarily delayed or
declined promotion.  Therefore, in view of the foregoing, the applicant’s
records should be corrected to show he was promoted to LTC with a PED and
DOR of 2 April 2005, along with entitlement to the appropriate back pay and
allowances.

BOARD VOTE:

__JBG___  __SWF__  __EEM__  GRANT FULL RELIEF

________  ________  ________  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 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 lieutenant colonel/pay grade O-5
with a promotion eligibility date and date of rank of 2 April 2005.

2.  In addition, the Defense Finance and Accounting Service shall be
notified of the Board's determination and remit payment of all back pay
(i.e., pay and allowances, less any withholdings and/or deductions) that
may be due as a result of this correction.




                                         _James B. Gunlicks____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060003018                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061102                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |20050825                                |
|DISCHARGE AUTHORITY     |HQ-CAJMTC Orders # 210-374, dtd 29 Jul  |
|                        |05                                      |
|DISCHARGE REASON        |Completion of Required Active Service   |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |131.0500.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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