RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 March 2007
	DOCKET NUMBER:  AR20060009945 


	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

Ms. Joyce A. Wright

Analyst


The following members, a quorum, were present:


Mr. Lester Echols

Chairperson

Ms. Linda M. Barker

Member

Mr. Michael J. Flynn

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 date of rank (DOR) for promotion to  captain (CPT) be adjusted from 2 May 2006 to 21 August 2002, in accordance with results of a Special Selection Board (SSB). 

2.  The applicant states, in effect, that he was selected for CPT by a SSB and his date of rank should be adjusted to the date provided by the SSB, of 21 August 2002.

3.  The applicant provides two promotion memorandums in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he was appointed in the Puerto Rico Army National Guard (PRARNG), as a second lieutenant, effective 19 August 1995, with prior enlisted service.  

2.  The applicant completed the Infantry Officer Basic Course on 1 November 1996.

3.  He was promoted to first lieutenant effective 20 August 1997.

4.  A certificate issued by the Office of the Dean of Academic Affairs, Mayaguez Campus, Mayaguez, Puerto Rico, certifies the applicant met all requirements for the Bachelor of Science Degree in Civil Engineering on 12 June 1999.  The applicant's official military personnel file shows this certificate was added to his record on 15 December 2005.

5.  The applicant was considered and not selected for promotion to captain by the 2002 RCSB that convened on 2 November 2002 and recessed on 2 December 2002.  The Secretary of the Army approved the board results on 17 March 2003.  

6.  The applicant assumed command of an infantry company, of the PRARNG, on 18 January 2003.

7.  The applicant's MTIG (maximum time in grade) date was 19 August 2002, based on completion of 5 years time in grade as a first lieutenant.

8.  The National Guard Bureau (NGB) issued a memorandum, Subject:  Eligibility for Promotion as a Reserve Commission Officer Not on Active Duty, dated 2 February 2006.  The memorandum stated that the applicant had been selected for promotion to captain by a SSB which had adjourned on 17 November 2005.  The effective date of promotion would be either of the following dates:  a. 21 August 2002; b. the date Federal recognition was extended in the higher grade; or c. the date following the date Federal recognition was terminated in the current Reserve grade.

9.  The applicant was considered and selected for promotion to captain by the 2002 SSB and was provided an effective date and date of rank (DOR) of 2 May 2006.

10.  The PRARNG issued Orders 46-209, dated 13 March 2006, promoting the applicant to captain with a promotion effective date and date of rank of 3 March 2006 but with a penned in change to the effective date to read, 2 May 2006, the date Federal recognition was extended.  The additional instructions stated he would not be paid as a CPT until Federal recognition was issued.

11.  The Departments of the Army and Air Force, NGB, issued the applicant a memorandum, Subject:  Promotion as a Reserve Commissioned Officer of the Army, dated 2 May 2006, announcing his promotion to captain with an effective date of promotion and effective date of 2 May 2006.

12.  In the processing of this case, an advisory opinion was requested of the Departments of the Army and Air Force, NGB, Personnel Division.

13.  On 2 March 2007, the Chief, Personnel Division, Departments of the Army and Air Force, NGB, provided the Board an advisory opinion.  The NGB restated the applicant's request and summarized his service.  The Chief, Personnel Division, recommended the applicant's DOR be adjusted from 2 May 2006 to 18 January 2003, since this was the date the officer was assigned to a Company Commander position, a CPTs position.

14.  The Chief, Personnel Division, continued her opinion by stating the applicant had twice been non-selected for promotion to captain due to his failure to meet the minimum military/civilian educational requirement.  He was notified of his non-selections on 26 March 2002 and on 17 April 2003, respectively.  The Chief, Personnel Division, further stated the applicant was assigned to a CPTs position at the time.  The applicant requested his promotion record be again considered by 

a Standby Advisory Board, because his military and civilian education documents were missing from his promotion packet.  On 30 December 2005, he was informed by the Army Human Resources Command (AHRC) - St. Louis, Missouri, that he was selected for promotion to CPT.  The advisory opinion was summarized by stating the applicant was extended Federal recognition with an effective date of 2 May 2006

15.  The applicant was provided a copy of the opinion for his acknowledgement and possible comment prior to consideration of this case.  He responded within the timeframe allotted and concurred on 15 March 2007.

16.  National Guard Regulation 600-100, chapter 8, states that the promotion authority for all ARNG officers is the State AG (Adjutant General).  If The State AG chooses not to promote an officer, he or she is not obligated to do so.  

17.  Army Regulation 135-155, prescribes the policies and procedures for the promotion of Reserve officers.  This regulation specifies that officers selected by a SSB are eligible for the same date of rank that they would have received by the original board (approval date) in which the error occurred.  It also specifies that promotion may only be effective upon positioning in the higher grade or assignment to the Individual Ready Reserve (IRR) or the Individual Mobilization Augmentee (IMA).  Promotion can not be earlier than the Presidential approval date of the original board.

18.  Army Regulation 135-155, also specifies that an officer is promoted, after selection, if all qualifications for promotion are met.  When an officer does not meet the qualification for promotion, the promotion effective date and date of rank may be advanced to the date qualifications are met.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, and notwithstanding the advisory opinion provided by the Personnel Division, NGB, the applicant is entitled to an adjustment to his promotion effective and date of rank to 17 March 2003, with entitlement to back pay and allowances.

2.  The applicant's contention that his date of rank should be changed based on his selection by a SSB is noted.  However, the applicant was considered and not selected by the 2002 captain's RCSB, which was approved on 17 March 2003. He was considered and selected for promotion to captain by a SSB under the 2002 year criteria with a projected promotion date of 21 August 2002, provided he was serving in a captain's position.  He was assigned to a captain's position effective 18 January 2003; however, the results of the promotion board which first considered him for promotion was not approved by the President until 17 March 2003.  Promotion cannot be earlier than the Presidential approval date of the original board.  

3.  Pertinent regulations clearly show that TPU officers normally selected by a SSB are eligible for the same promotion effective date and date of rank that they would have received by the original board in which the error occurred provided they are positioned in the higher grade.  Promotion can not be earlier than the Presidential approval date of the original board.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___e____  ___LB___  __MJF__  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 all Department of the Army records of the individual concerned be corrected by  showing he was promoted to captain with a promotion effective date and date of rank of 17 March 2003, with entitlement to back pay and allowances.

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 correction of his date of rank and effective date of promotion to 21 August 2002.  




______Lester Echols      __
          CHAIRPERSON




INDEX

CASE ID
AR20060009945
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070329
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
AR . . .ARNG
DISCHARGE REASON

BOARD DECISION
PARTIAL GRANT
REVIEW AUTHORITY

ISSUES         1.
102
2.

3.

4.

5.

6.