RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  9 August 2007
	DOCKET NUMBER:  AR20060010002 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Antoinette Farley

Analyst


The following members, a quorum, were present:


Mr. Jeffrey C. Redmann

Chairperson

Ms. Rea N. Nuppenau

Member

Mr. Dennis J. Phillips

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 to the grade of captain be adjusted from 28 November 2001 to 3 May 1997.

2.  The applicant states, in effect, that he was appointed into the Mississippi Army National Guard (MIARNG) on 28 November 2001, and his date of rank should have been adjusted at the same time.  The applicant continues that since his date of rank is incorrect, his records have been considered by a Department of the Army Mandatory Promotion Board.

3.  The applicant provides a copy of National Guard Federal Recognition Orders Number 14 AR, dated 21 February 1995; DA Form 1059 (Service School Academic Evaluation Report), dated 18 October 1995; National Guard Federal Recognition Orders Number 35 AR, dated 25 February 1998; Department of the Army and the Air Force Headquarters, Louisiana National Guard Office (LAARNG), Louisiana, New Orleans, Orders Number 180-040, dated 29 June 1999; Department of the Army US Army Reserve Personnel Command, St. Louis, Missouri, Orders D-080959169, dated 19 August 1999; US Army Reserve Personnel Command Orders Number C-02-002882, dated 1 February 2000; National Guard Federal Recognition Orders Number 28 AR, dated 1 February 2001; State of Mississippi, Army National Guard (MSARNG), Military Department, the Adjutant General's Office, Jackson, Mississippi, Orders 204-206, dated 28 November 2001; National Guard Federal Recognition Orders Number 31 AR, dated 1 February 2002; US Total Army Personnel Command, Eligibility for Promotion Memorandum, dated 7 August 2003; Personnel Action Form for Interstate Transfer, dated 28 January 2004; Department of the Army and the Air Force, Headquarters, Louisiana, New Orleans, Orders Number 069-004, dated 9 March 2004; MSARNG, Jackson, Mississippi, Orders 070-123, dated 10 May 2004; National Guard Federal Recognition Orders Number 129 AR, dated 25 May 2004; Army National Guard Current Annual Statement of Retirement Points, dated 1 May 2005; and DA Form 1059 (Service School Academic Evaluation Report) in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as a Reserve Officer on 7 July 1993.  He took an Oath of Office and received Federal Recognition in the Texas Army National Guard (TXARNG) on 1 February 1994.

2.  National Guard Federal Recognition Orders Number 14 AR, dated 21 February 1995, awarded the applicant permanent Federal Recognition for promotion to the grade of captain effective 25 January 1995.

3.   National Guard Federal Recognition Orders Number 35 AR, dated 25 February 1998, show the applicant transferred from the LAARNG to the Inactive National Guard (ING), effective 17 April 1997.  He remained in the ING until 28 June 1999.

4.  On 29 June 1999, the applicant was honorably separated from the ARNG and transferred to the US Army Personnel Reserve Command (USAR) (Reinforcement), St. Louis, Missouri, effective 30 June 1999.

5.  On 19 August 1999, the USAR Orders D-08-959169, honorably discharged the applicant from the USAR in the grade of captain/pay grade O-3, effective 
20 August 1999.

6.  Records show that the applicant had a non-military civilian break in service during the period 21 August 1999 through 27 November 2001.

7.  State of Mississippi, Office of the Adjutant General Office, Jacksonville, Mississippi Orders 204-206, dated 28 November 2001, appointed the applicant into the MSARNG in the rank of captain/pay grade O-3 effective 28 November 2001.

8.  National Guard Federal Recognition Orders Number 31 AR, dated 1 February 2002, show the applicant was awarded permanent Federal Recognition for initial appointment in the MSARNG as a captain, effective 28 November 2001.

9.  LAARNG Orders Number 069-004, dated 9 March 2004, show that the applicant was appointed in the LAARNG in the grade of captain, effective 9 March 2004.  These orders further show that the applicant's date of rank was 28 November 2001.

10.  National Guard Federal Recognition Orders Number 129 AR, dated 25 May 2004, show the applicant was awarded permanent Federal Recognition for a change of state from the MSARNG to the LAARNG effective 9 March 2004.

11.  National Guard Bureau provided a two-page advisory opinion for review with this case.


12.  The Chief of the Personnel Division of the National Guard Bureau recommended that the applicant's date of rank be adjusted to 25 January 1999 based on the fact that Soldiers transferring from the Inactive National Guard to an active status in the ARNG will be given an adjusted date of rank (DOR) for time spent in the ING.  The Chief of the Personnel Division of the Army National Guard Bureau opined that the applicant’s DOR should be adjusted to reflect the two years he spent in the ING.

13.  The applicant was provided a copy of the National Guard Bureau advisory opinion for review and comment.  On 31 March 2007, the applicant states in his rebuttal that he was not aware of an error in his date of rank until approximately June 2005.  The applicant continues that he immediately consulted with the LAANG personnel officer and was advised that the correction would be made by the State, and no further action would be necessary by him.  The applicant continues that he fulfilled all of his obligations for promotion to major and inquired into the promotion process in June 2005.  The applicant continues that he learned his DOR was not corrected and he would have to request correction by the ABMCR.  The applicant states that the LAARNG considered him eligible to fill a major/O-4 position with the understanding that once he met all obligatory requirements he would be promoted to the rank of major.

14.  NGR 600-100 (Commissioned Officer-Federal Recognition and Related Personnel Actions) provides procedures for processing all applications for Federal Recognition.  Paragraph 2-1 states that commissioned officers of the ARNG are appointed by the several States under Article 1, Section 8 of the U. S. Constitution.  

15.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for promotion of Reserve officers.  Paragraph 2-5 of this regulation states that to be eligible for consideration for promotion to the next higher grade, an ARNGUS or USAR officer must have continuously performed service on either the Reserve Active Status List (RASL) or the Active Duty List (ADL) or a combination of both lists during the 1– year period ending on the convening date of the promotion board, and must meet the TIG requirements in tables 2-1 or 2-3, as appropriate.  

16.  National Guard Regulation 614-1, paragraph 3-7 prescribes that enlisted Soldiers transferring from the ING to an active status in the ARNG will be given an adjusted DOR.  DOR will be adjusted to delete time spent in the ING.  (Example: DOR at time of transfer to ING is 15 Oct 83, period of time in ING is 30 days, adjusted DOR when transferred to active status is 15 Nov 83) as required under NGR 614-1, chapter 3, Enlisted Soldiers. 
17.  National Guard Regulation 614-1, paragraph 4-6 provides, part that officers may not be considered for promotion for a period of 1 year following the most recent transfer back to an active status as required under NGR 614-1, chapter 4, officer personnel.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his date of rank to captain should be adjusted to show the date of 3 May 1997. 

2.  The applicant's record shows that he was selected for permanent promotion to the grade of captain/pay grade O-3, effective 25 January 1995.

3.  Evidence shows that the applicant was assigned to the ING during the period 17 April 1997 through 28 June 1999.  Evidence further shows that the applicant had a non-military break in service during the period 21 August 1999 through 27 November 2001.

4.  The applicant's records clearly show his date of rank to captain as 28 November 2001.  It is presumed that this adjustment to his date of rank from 25 January 1995 to 28 November 2001 was based on the fact that he had a non-military break in service during the period 21 August 1999 through 27 November 2001.  

5.  The applicant is not entitled to credit for time-in grade as captain during his non-civilian break in service or his period of service in the ING.  The combined total of non-creditable service is 4 years, 5 months, and 19 days which should be added to his 25 January 1995 date of promotion.  As a result, the applicant's date of rank to captain should be adjusted to 14 July 1999. 

6.  Based on applicable regulation officers must be on the Reserve Active Status List for one year after returning from an inactive status to be eligible for promotion, therefore, the earliest date the applicant could have been considered for promotion was 29 November 2002.

7.  Notwithstanding the advisory opinion provided by NGB officials, there is no evidence that the applicant is entitled to an adjusted date of rank of 25 January 1999.


8.  Based on the foregoing, the applicant's records should be amended to show that his date of rank to captain was 14 July 1999.  If this adjustment results in the applicant's eligibility for consideration by a Department of the Army Mandatory Promotion Board, then his records should be considered under the appropriate criteria.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

_DJP____  _RNN___  _JCR___  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 amending his date of rank to captain to show 14 July 1999 and if, entitled his records be placed before an appropriate Department of the Army Mandatory Promotion Board.

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 amendment of his date of rank to 3 May 1997.





__Jeffrey C. Redmann_
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.