RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 April 2007
      DOCKET NUMBER:  AR20060009833


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Curtis L. Greenway            |     |Chairperson          |
|     |Mr. Michael J. Flynn              |     |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 reconsideration of his request to show he was
promoted to lieutenant colonel (LTC), O-5.

2.  The applicant states that his observed experience of officer promotions
is in stark contrast to the Board’s 30 March 2006 reversal of its 22
November 2005 recommendation to have his records considered by a special
selection board (SSB) for promotion consideration to LTC.  That reversal is
also in direct contrast to the current information provided by the U. S.
Army Human Resources Command (USAHRC).

3.  The applicant states Army Regulation (AR) 135-155, chapter 2 states the
minimum years in grade as a major (MAJ) for promotion to LTC is four.  The
maximum years in grade is seven.  He states many officers choose to be
promoted at deployment with the minimum time in grade (TIG).  In fact, it
was encouraged even though the officers held positions that were lower
graded positions.  That option was initially denied him because he had not
yet received his date of rank (DOR) change.  Had the Board’s decision been
received prior to his deployment, like the other entire officer corps he
would have chosen to be promoted to the next higher rank based on minimum
TIG.

4.  The applicant states paragraph 4-4b of AR 135-155 supports his request
for promotion.  That paragraph states an officer who is not on the active
duty list (ADL) and who is ordered to active duty in time of war or
national emergency may, if eligible, be considered for promotion by a
mandatory Reserve of the Army selection board or an SSB for not more than
two years from the date the officer is ordered to active duty unless the
President suspends the operation of Title 10,  U. S. Code, section
14317(e).  In his case, the zone of consideration is four to seven years
TIG.  Paragraph 4-11a(2) of AR 135-155 states an officer who has been
recommended for promotion to the next higher grade must be in the zone of
consideration listed in tables 2-1 (commissioned officers) or 2-3 (warrant
officers), as appropriate.

5.  The applicant states it is the ongoing practice of the unit he served
in and the Army to promote eligible officers as soon as possible.  He
personally observed a number of officers promoted to the next higher grade
based on the minimum, not the maximum, TIG [requirement].  If the Board’s
[second] decision stands, then an investigation should be launched to roll
back those officer promotions where an officer has been promoted before the
maximum number of years TIG served in order to create a fair, just, and
even playing field.

6.  The applicant states the minimum TIG for promotion of eligible officers
within his State and unit in activation and return from Iraq also supports
the first Board’s observation and the reality of when officers get
promoted.  In addition, in 2004 he was Title 10 and not restricted to the
vacancy promotion standard used by the National Guard.

7.  The applicant provides an officer evaluation report for the period 1
February 2005 through 15 November 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant served in Operation Iraqi Freedom.

2.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR20040011577 on 22 November 2005, as supplemented in Docket Number
AR20060002567 on    30 March 2006.

3.  The applicant was commissioned a Field Artillery second lieutenant in
the New York Army National Guard (NYARNG) on 8 August 1986.  He was
promoted to first lieutenant on 7 August 1989 and to captain on 14 July
1993.

4.  On 10 August 2000, the applicant was notified of his promotion to MAJ
with a DOR of 13 July 2000.  He requested a three-year delay in his
promotion based on his desire to branch transfer from Field Artillery to
Military Intelligence and his mistaken belief that he required a Top Secret
security clearance before he could be branch transferred.

5.  On 24 May 2004, the applicant was ordered to active duty in support of
Operation Iraqi Freedom as a member of his Reserve Component unit.  His
mobilization orders state, “The soldier will be excluded from the Active
Army  end-strength per section 115, title 10, USC, and will not be placed
on the active duty list (sections 641 (1) (D) and 620 (a), Title 10, USC).”

6.  On 12 November 2004, the applicant was promoted to MAJ.

7.  The applicant applied to the Board to request, in part, that his DOR to
MAJ be adjusted and that he be promoted to LTC.  The Board analyst had
cited National Guard Regulation (NGR) 600-100, chapter 8, and noted that
cite provided that the minimum TIG for promotion from MAJ to LTC is 48
months provided the individual meets all of the other promotion criteria.
On 22 November 2005, the Board recommended the applicant’s DOR to MAJ be
adjusted to 13 July 2000.  Based on this correction, the Board also
recommended that his records be forwarded to an SSB for promotion
consideration to LTC under the 2004 promotion criteria.

8.  On 13 February 2006, the Chief, Special Actions, Office of Reserve
Component Promotions, USAHRC– St. Louis informed the Board that, based on
the applicant’s 13 July 2000 adjusted DOR for promotion to MAJ, his
promotion date to LTC would be 2007 and his earliest date for [mandatory]
promotion consideration would be 2006.  Based upon this information, the
Board analyst noted that AR 135-155 provides for promotion consideration to
LTC at seven years TIG as a MAJ and, on 30 March 2006, the Board
recommended that the portion of ABCMR Docket Number AR20040011577, dated 22
November 2005, pertaining to referring the applicant’s records to an SSB be
deleted.

9.  The applicant was released from active duty on 21 November 2006 after
having served in Kuwait/Iraq from 3 January 2005 through 1 November 2005.

10.  By memorandum dated 4 January 2007, the applicant was informed he had
been considered but not selected for promotion to LTC by the board that
convened on 12 September 2006 as the records reviewed did not indicate that
he had completed the required civilian and/or military education.

11.  AR 135-155 (Promotion of Commissioned Officers and Warrant Officers
other than General Officers) applies to commissioned officers of the Army
National Guard of the United States (ARNGUS) and the U. S. Army Reserve
(USAR) on the Reserve Active Status List.  It states policies concerning
promotions and Federal recognition of ARNGUS officers within their State
vacancy promotion systems will be under NGR 600-100 (i.e., AR 135-155
governs vacancy promotions only of USAR officers).  Paragraphs 2-13 and 2-
14 discuss USAR troop program unit and active guard reserve, respectively,
position vacancy selection boards.  Both paragraphs state one of the
eligibility requirements is to have completed the minimum TIG prescribed
for promotion to the next higher grade by the day before the convening date
of the board.  Table 2-2 states 50 percent of the Command and General Staff
Officer Course is required for promotion to LTC.

12.  Title 10, U. S. Code, section 14304 states officers shall be placed in
the promotion zone for that officer’s grade and competitive category and
shall be considered for promotion to the next higher grade by a promotion
board far enough in advance of completing the years of service in grade
specified 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 maximum years of service for
promotion to the rank of LTC is seven years.
13.  NGR 600-100 (Commissioned Officers – Federal Recognition and Related
Personnel Actions), paragraph 8-1 states the promotion of officers in the
ARNG is a function of the State.  Paragraph 8-2a states promotion criteria
will be based on efficiency, TIG, time in commissioned service (this
requirement was deleted after enactment of the Reserve Officer Personnel
Management Act), demonstrated command and staff ability, military and
civilian education, and potential for service in the next higher grade.
Paragraph 8-2b states that, except as provided in this chapter (i.e.,
concerning certain Special Branch officers only), promotion will be
accomplished only when an appropriate vacancy in the grade exists in the
unit.

14.  NGR 600-100, paragraph 8-7 states, to be considered for Federal
recognition and subsequent Reserve of the Army promotion following State
promotion to fill a unit vacancy [via a Unit Vacancy Promotion Board], an
ARNG commissioned officer must, in part, have completed the minimum years
of promotion service indicated in paragraph 8-8.  Paragraph 8-8 states a
commissioned officer must complete a minimum of four years of promotion
service prior to being considered for promotion from MAJ to LTC.  Paragraph
8-9 states completion of 50 percent of the six-phase Command and General
Staff Officer Course is required for promotion to LTC.

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
AR 135-155, 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 NGR 600-100, 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.  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 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.
17.  The Office of the Deputy Chief of Staff, G-1 implemented the
mobilization promotion guidance contained in the 17 December 2003 and 30
January 2004 memorandums in the applicable portions of the Department of
the Army Personnel Policy Guidance (PPG). The PPG provides personnel policy
guidance pertaining to military and civilian personnel who are activated,
mobilized, employed, or deployed in support of contingency operations with
no regard to the Title under which a Soldier was activated or mobilized or
deployed.

18.  The PPG in effect at the time stated that, within the ARNG, a
mobilized officer on an approved promotion list could 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.  ARNG
officers could continue to be considered for promotion under their unit
vacancy promotion process in accordance with NGR 600-100.  However, only
officers within the mobilized unit could be considered for unit vacancy
promotion while the unit was mobilized.

19.  The current PPG, updated 29 August 2005, states mobilized ARNG
officers who are on an approved mandatory selection board 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.  A mobilized officer who is selected for promotion by a Department
of the Army mandatory promotion board and is on an approved promotion list
shall (if not promoted sooner or removed from the promotion list by the
President or 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 as indicated “on table 1” (sic).  The PPG states the
reference for this is section 14304(b) of Title 10, U. S. Code.

20.  The current PPG states ARNG officers may continue to be considered for
promotion under their unit vacancy promotion process in accordance with NGR
600-100.  However, only officers within the mobilized unit may be
considered for unit vacancy promotion while the unit is mobilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contended that AR 135-155, chapter 2 states the minimum
years in grade as a MAJ for promotion to LTC is four and the maximum years
in grade is seven.  However, paragraphs 2-13 and 2-14 of this regulation
and paragraph 8-8 of NGR 600-100 make it clear that the minimum TIG
requirements pertain only to unit vacancy promotions [via Unit Vacancy
Promotion Boards].

2.  The applicant stated that many officers choose to be promoted at
deployment with the minimum TIG even though the officers held positions
that were of lower graded positions.  However, unless the units to which
these officers belong are flouting the regulation(s), officers cannot
“choose” to be promoted merely because they are being deployed.  NGR 600-
100 specifically states promotion will be accomplished only when an
appropriate vacancy in the grade exists in the unit except for exceptions
authorized for certain Special Branch officers.  Field Artillery and
Military Intelligence are not Special Branches.

3.  The applicant contended that paragraph 4-4b of AR 135-155 supports his
request for promotion.  However, as he noted, this paragraph discusses
mandatory Reserve of the Army selection boards/SSBs.  The applicant would
not reach his eligibility for mandatory consideration until he reached his
maximum TIG (i.e., in 2007).

4.  The applicant contended he personally observed a number of officers
promoted to the next higher grade based on the minimum, not the maximum,
TIG [requirement].  However, if he believes they were promoted without
meeting the position vacancy requirement he may consider asking his State
Inspector General to investigate his contention.

5.  The applicant contended that in 2004 he was Title 10 and not restricted
to the vacancy promotion standard used by the National Guard.  However,
neither      AR 135-155 nor NGR 600-100 nor the PPG provide special
guidance relating to Reserve Component officers on Title 10 tours.  The PPG
provides personnel policy guidance pertaining to military personnel who are
activated, mobilized, or deployed in support of contingency operations with
no regard to the Title under which a Soldier was activated or mobilized or
deployed.  And, the PPG specifically refers to NGR 600-100 when discussing
ARNG officer unit vacancy promotion policies (i.e., promotions made with
less than the maximum time in grade).

6.  All of the applicant’s contentions have been considered and
specifically addressed above.  It is noted that mobilization promotion
guidance was implemented for USAR officers in December 2003 and, for ARNG
officers, in January 2004.  The applicant was mobilized in May 2004.  He
was originally promoted to MAJ in November 2004.  There is no evidence his
unit ever recommended him for a unit vacancy position promotion after
November 2004.  Therefore, there is insufficient evidence to show his unit
believed him to meet all the promotion eligibility criteria outlined in
paragraph 8-2 of NGR 600-100.  In addition, there is a question as to
whether he would have been educationally qualified for a unit vacancy
promotion in 2004, as the available evidence indicates he was not
educationally qualified in September 2006.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__clg___  __mjf___  __eem___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis to amend the decision of
the ABCMR set forth in Docket Number AR20040011577 dated 22 November 2005
as supplemented by Docket Number AR20060002567 dated 30 March 2006.




                                  __Curtis L. Greenway__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060009833                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070412                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |131.11                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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