RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  29 March 2007
	DOCKET NUMBER:  AR20060009116 


	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.




Acting Director



Analyst


The following members, a quorum, were present:




Chairperson


Member



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 effective date for promotion to lieutenant colonel (LTC) be corrected.

2.  The applicant states, in effect, that he was promoted to LTC effective 21 March 2006, in conjunction with the date of his Federal Recognition.  He indicates that his State did not move sooner to effect his promotion because his promotion eligibility memorandum incorrectly showed his promotion eligibility date (PED) as 30 August 2006, instead of 30 August 2005.  He indicates that this error has since been corrected and asks that the effective date of promotion be corrected to 30 August 2005, the date he reached his maximum years in grade (MYIG) requirement for promotion LTC, or 30 December 2005, the date the fiscal year 2005 LTC promotion board was approved.

3.  The applicant provides Army Human Resources Command, St Louis, Missouri (AHRC-St. Louis), which was previously Total Army Personnel Command, 
St. Louis, Office of Promotions, Reserve Components (RC), Memorandums, dated 28 September 1998, 12 January 2006 and 16 August 2006 respectively, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that he is currently serving in the Florida Army National Guard (FLARNG) as a Fire Support Officer.  It also confirms that he was promoted to the rank of major (MAJ) on 31 August 1998, which established his PED for LTC as 30 August 2005.  

2.  The applicant's Official Military Personnel File (OMPF) contains Department of the Army and Air Force, FLARNG, Orders P090-050, dated 31 March 2005, which authorized his assignment to duty as a Fire Support Officer against paragraph and line number “123-01-1” on 31 March 2005.

3.  The applicant was selected for promotion to LTC by the 2005 LTC Department of the Army (DA) Reserve Component Selection Board (RCSB) that was approved by the President on 30 December 2005.

4.  A promotion memorandum pertaining to the applicant, dated 12 January 2006, published by the AHRC-St. Louis authorized his promotion to the rank of LTC, effective on either of the following dates:  30 August 2006 (PED), which was the date shown after A of the Memorandum; date Federal Recognition is extended in the higher grade; or date following the date Federal Recognition is terminated in current Reserve grade.  
5.  Department of the Army and Air Force, FLARNG, Orders 066-008, dated 
7 March 2006, announced the applicant’s promotion to LTC against paragraph and line number “123-01-1” with an effective date of 7 March 2006.  These orders also contain a handwritten change, which shows that the effective date of his promotion was lined through and changed to read 21 March 2006.

6.  The applicant's record contains Department of the Army and Air Force, National Guard, National Guard Bureau (NGB), Special Orders Number 77, dated 21 March 2006.  These orders announced that the applicant was extended Federal Recognition in the ARNG on 21 March 2006, for the purpose of promotion to LTC, effective on that same date.

7.  On 16 August 2006, AHRC, St. Louis issued a correction to this memorandum to show that the applicant’s PED shown in A was 30 August 2005 instead of 30 August 2006.

8.  During the processing of this case an advisory opinion was obtained from the Chief, Special Actions Branch, Officer of Promotions, RC, AHRC-St. Louis.  This official confirmed the applicant was given an incorrect PED of 30 August 2006 and that it had since been corrected to show 30 August 2005.  The applicant was provided a copy of the advisory opinion and he concurred with its content on 8 January 2007.

9.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  The regulation provides that mandatory selection boards will be convened each year to consider Army Reserve Officers in an active status for promotion to captain through lieutenant colonel.  

10.  Title 10, United States Code, Section 14304 provides the legal authority for eligibility for consideration for promotion based on maximum years of service in grade provisions of the law.  Subsection (a) states, in pertinent part, that officers shall be placed in the promotion zone and shall be considered for promotion to the next higher grade by a promotion board convened under section 14101(a) of this title, far enough in advance of completing the maximum years of service in grade so that, if the officer is recommended for promotion, the promotion may be effective on or before the date on which the officer will complete those years of service.  The table in subsection (a) establishes the maximum years of service in grade for a major to be promoted to lieutenant colonel as seven years.


11.  Title 10, United States Code, Section 12203 (a) states:  “Appointments of Reserve officers in commissioned grades of lieutenant colonel and commander or below, except commissioned warrant officer, shall be made by the President alone.”  Subsequently, in a 22 April 1997 legal opinion on effective dates of promotion for Reserve officers under the Reserve Officers Personnel Management Act, the Chief of the Military Personnel Law Branch, Office of the Judge Advocate General, opined that the effective date of promotion of reserve component officers may not predate the approval of the promotion board results by the President.

CONCLUSIONS:

1.  The applicant’s contention that the effective date and date of rank of his promotion to LTC should be corrected because an error in his PED resulted in an unfair delay in his promotion was carefully considered and found to have merit.   

2.  The evidence of record confirms the applicant was assigned for duty against paragraph and line number “123-01-1” on 31 March 2005, as reflected in FLARNG Order Number P090-050, dated 31 March 2005, and his State promotion orders also show the was promoted to LTC against paragraph and line number “123-01-1” on 21 March 2006.  Therefore, it is clear the applicant was slotted against and held a valid LTC position on the date the 2005 LTC DA RCSB was approved by the President.

3.  The President approved the 2005 RCSB on 30 December 2005, which is the earliest date the applicant's promotion could have been effective.  The initial promotion memorandum issued to the applicant contained an incorrect PED of 31 August 2006, as evidenced in the AHRC advisory opinion. 

4.  The applicant's State, after confirming he was otherwise qualified, issued orders promoting him to LTC effective and with a date of rank of 21 March 2006, the date he was extended Federal Recognition in the ARNG.

5.  By law and regulation, the effective date of a RC officer's promotion should be the date the President approved the list if the member is otherwise qualified.  Therefore, given the applicant was otherwise qualified and filling an authorized LTC position on 30 December 2005, the date the President approved his promotion list, the effective date of his promotion should have been that date.  Further, the law stipulates that an RC officer's date of rank should be established on or before the date on which the officer will complete the maximum years in grade, which for LTC is seven years.  

6.  In view of the facts of this case, the applicant's record should be corrected to show he was promoted to LTC, effective 30 December 2005, the date the President approved his promotion list, and that his Federal Recognition was extended on that same date.  His date of rank should be established as 
30 August 2005, based on maximum years in grade provisions of the law and he should be provided any back pay and allowances due based on the correction of the effective date of his promotion to 30 December 2005.  

BOARD VOTE:

___LE __  __LMB __  __MJF__  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 the applicant was promoted to the rank of lieutenant colonel and extended Federal Recognition in that grade, effective 30 December 2005, with a date of rank of 30 August 2005; and by providing him all back pay and allowances due as a result of the change to the effective date of his promotion.




_____Lester Echols_______
          CHAIRPERSON

		INDEX

CASE ID
AR20060009116
SUFFIX

RECON
NO
DATE BOARDED
2007/03/29
TYPE OF DISCHARGE
ACTIVE ARNG
DATE OF DISCHARGE
NA
DISCHARGE AUTHORITY
NA
DISCHARGE REASON
NA
BOARD DECISION
GRANT
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
131.0000
2.

3.

4.

5.

6.