RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  21 June 2007
	DOCKET NUMBER:  AR20060010940 


	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. Anita McKim-Spilker

Analyst


The following members, a quorum, were present:


Ms. Sherri V. Ward

Chairperson

Mr. Richard T. Dunbar

Member

Mr. David W. Tucker

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 adjustment of his date or rank (DOR) for captain (CPT) from 1 June 2006 to 1 January 2006. 

2.  The applicant states, in effect, that his original DOR was 26 November 2005; however, he was asked by his previous command to wait until a replacement commander could be located before he assumed the CPT position on 1 January 2006.  Although he was transferred into the CPT position on 1 January 2006, his promotion order was not published until 1 June 2006 and it was not backdated.

3.  The applicant provides copies of his initial appointment orders; his Service School Academic Evaluations Reports (DA Form 1059); his 2006 NGB Form 89 (Proceedings of a Federal Recognition Examining Board (FREB)); and DD Forms 214 (Certificate of Release or Discharge from Active Duty). 

CONSIDERATION OF EVIDENCE:

1.  The applicant's military record shows that after prior enlisted service, he completed Officer Candidate School on 12 August 2001.  He was appointed in the Oregon Army National Guard (ORARNG), as second lieutenant, effective
26 November 2001.

2.  He completed the AMEDD Officer Basic Course (OBC) on 20 September 2002.  

3.  On 3 April 2003, he was designated in Area of Concentration (AOC) 70B.  

4.  The applicant was promoted to first lieutenant effective 26 November 2003.  He was on active duty from 17 April 2003 to 21 April 2004 in support of Operation Enduring Freedom.

5.  On 10 August 2004, ORARNG published orders Number 223-04 assigning the applicant as the company commander of the 541st Medical, effective
1 August 2004.

6.  On 15 December 2005, ORARNG published orders Number 349-011 transferring him from the commander's position to a Liaison Officer (CPT/03) position, effective 1 January 2006.

7.  On 10 January 2006, a FREB considered and approved the applicant for promotion to CPT vice a position vacancy promotion.
 
8.  On 19 January 2006, the ORARNG issued orders Number 019-001 promoting the applicant to CPT with an effective date and DOR of 10 January 2006.  The orders stated that the effective date and the DOR or promotion were not valid until Federal recognition had been extended by the Chief of the National Guard Bureau (NGB).

9.  On 6 June 2006, the NGB issued Special Order Number 144 AR extending Federal recognition and promoting the applicant to CPT with an effective DOR of 1 June 2006.

10.  The applicant was on active duty from 6 April – 15 December 2006 in support of Operation Enduring Freedom.

11.  In an advisory opinion, dated 10 April 2007, the Chief, Personnel Divisions, Departments of the Army and the Air Force, NGB, reiterated the applicant's request and statements.  It recommended denial of the applicant's request because the Reserve Officer Personnel Management Act (ROPMA) prohibits adjustment when promotions are done on a position vacancy promotion.  In accordance with ROPMA, the effective date of promotion and date or rank for an officer who is promoted under the position vacancy system, will be the date the Chief, NGB extends Federal recognition, based on the approved list date from the Secretary of Defense.

12.  On 27 March 2007, the applicant was provided with a copy of the advisory opinion for comment and/or rebuttal.  He failed to respond to the opinion.

13.  The ROPMA, a public law enacted by Congress on 5 October 1994, prescribes the policies and procedures to consolidate and modernize the laws that govern Reserve Component officers. The law became effective 1 October 1996.  In accordance with ROPMA, the effective date of promotion and DOR for an officer who is promoted under the position vacancy system, will be the date the Chief, NGB extends Federal recognition, based on the approved list date form the Secretary of Defense.  

14.  National Guard Regulation 600-100 provides procedures for processing governing the appointment, assignment, temporary Federal recognition, Federal recognition, reassignment, transfers between States, branch transfer, AOC designation, utilization, branch detail, attachment and separation of commissioned officers of the ARNG.  Chapter 8-8, in pertinent part, specifies that officers in the grade of first lieutenant may be eligible for promotion consideration to CPT by a position vacancy board upon completion of 2 years minimum time in grade (TIG).  A position vacancy promotion is a below the zone promotion under the jurisdiction and management of the individual state.  

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an adjustment of his DOR for CPT to 1 January 2006.  He has not shown error, injustice, or inequity for the relief he now seeks.

2.  NGB Personnel Division recommended disapproval of his request because he was promoted based on a position vacancy promotion, a below the zone promotion, which is managed by the state and falls under its jurisdiction.  The ROPMA prohibits adjustment of the DOR when promotions are done on a position vacancy promotion.  

4.  In accordance with ROPMA, the promotion effective date is not the date of appointment into the position, nor is it the date of the state FREB.  It is the date the Chief, NGB extends Federal recognition, based on the approved list date from the Secretary of Defense.  On 19 January 2006, the State FREB approved his promotion to CPT in the MS branch based on position vacancy.  The NGB issued Federal Recognition orders promoting him to CPT in the MS branch effective 1 June 2006, the date the Secretary of Defense approved the vacancy promotion list.

5.  Even if his contentions were true, it does not entitle him to promotion to CPT on 1 January 2006.  The applicant was not entitled to promotion to CPT until he was extended Federal recognition in an approved promotion vacancy promotion. His name was placed on the list on 19 January 2006 and the list was not approved until 1 June 2006.  

6.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__svw___  __rtd___  __dwt___  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 for correction of the records of the individual concerned.




							Sherri V. Ward
______________________
          CHAIRPERSON





INDEX

CASE ID
AR20060010940
SUFFIX

RECON

DATE BOARDED
20070621
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
131.0500
2.

3.

4.

5.

6.