RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 March 2007
	DOCKET NUMBER:  AR20060011710 


	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.  



	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, an adjustment of his date of rank (DOR) for captain (CPT) from 31 January 2006 to 4 March 2005.

2.  The applicant states, in effect, that on 18 May 2004, he received an electronic mail (e-mail) notifying him of his consideration for promotion to CPT, he submitted his documentation, and was approved for promotion to CPT.  The Board's records were made public on 14 March 2005, when the promotion list appeared in the Army Times.  He contends he did not receive a letter notifying him of his promotion and both he and his unit made numerous inquiries regarding his promotion letter.  By the time he received his eligibility letter the suspense date had already passed, and he was not promoted to CPT until 31 January 2006 through no fault of his own.  

3.  The applicant provides a copy of his Memorandum of Eligibility for Promotion as a Reserve Commissioned Officer not on Active Duty; his battalion commander's recommendation memorandum; an excerpt from the Army Times; Federal Recognition Special Orders #30; and correspondence from the National Guard Bureau.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a member of the Texas Army National Guard (TXARNG) serving on active duty in Iraq.

2.  The applicant's military records show that he was appointed in the Reserve as a second lieutenant effective 1 March 1999.  He was appointed in the TXARNG as a second lieutenant effective 31 August 2000.  He was promoted to first lieutenant on 4 March 2001.

3. Promotion Memorandum, Department of the Army (DA), U.S. Army Human Resources Command, St. Louis, Missouri (HRC-St. Louis), dated 1 March 2005 notified the ARNG Personnel Center that the applicant had been selected for promotion to CPT as an officer of the ARNG by the Reserve Components Selection Board (RCSB) which adjourned on 9 November 2004.   

4.  The 14 March 2005 issue of the Army Times shows that the applicant was recommended for promotion to captain by an Army Promotion Selection Board that met in St. Louis in November 2004.


5.  A 22 March 2005 memorandum from the Texas Military Forces, Joint Forces Headquarters, Adjutant General's Department, Austin, Texas, notified the applicant that he was eligible for promotion to CPT under the provisions of the Reserve Officer Personnel Management Act (ROPMA), provided that he was assigned to a higher graded position in the unit.  He was notified that if he did not occupy a higher graded position, he had the option to delay promotion for a period of 3 years, in one year increments, from 4 March 2004.  He was given a suspense date of 5 May 2005 to elect an option available in an endorsement attached to the promotion memorandum.

6.  On 22 March 2005, the applicant submitted a "Delay of Promotion as a Reserve of the Army and ARNG Officer."  The applicant signed the following statement:  "Under the provisions of ROPMA, I hereby elect to delay promotion to the grade of CPT as a Reserve of the Army and ARNG Officer until 4 March 2006.  This date can not be no longer than 3 years from my promotion eligibility date 4 March 2004 (PED)….I understand that by delaying this promotion my name will be retained on the promotion list for period not to exceed three years from the date I would otherwise be promoted." 

7.  This memorandum, signed by the applicant, also gave him the following options at the end of the approved period of delay:  (1) be promoted into higher grade if a higher grade position is made to; (2) if there is no higher graded position and he desired to be promoted, his Federal recognition would be withdrawn, he would be transferred to the Individual Ready Reserve and promoted, or (3) choose to decline the promotion at which time his name would be removed from the promotion list.  If at the end of the approved period of delay, the applicant did not select an option as described above, he would be removed from the promotion list, considered a non-select, and been ineligible for position vacancy promotion.

8.  On 5 August 2005, the applicant's unit commander (Headquarters, 1st Battalion, 112th Armor) recommended the applicant for promotion to CPT in the ARNG.   

9.  Promotion Memorandum, DA and the Air Force, National Guard Bureau, Arlington, Virginia, dated 31 January 2006, promoted the applicant to CPT effective 31 January 2006.  




10.  NGB Federal Recognition Orders Number 30 AR, dated 31 January 2006, awarded the applicant permanent Federal Recognition for initial appointment to the grade of CPT, effective 31 January 2006.

11.  In an advisory opinion, dated 3 January 2007, the Chief, Personnel Division, National Guard Bureau, recommended denial of the applicant's request based on his request for delay in promotion.  

12.  On 5 February 2007, the applicant was furnished (via e-mail) with a copy of the advisory opinion for his information and rebuttal.

13.  On 6 February 2007, the applicant responded to the advisory opinion.  He indicated that after seeing his name on a promotion list in the Army Times, he was advised to sign a delay in promotion to avoid losing his approved promotion because he had not received a copy of his promotion letter.  He contends that he did not understand that he was signing his right of promotion away, and that the ABCMR may need to seek more than one advisory opinion in order to reach the correct decision in his case.   

14.  Army Regulation 135-155 (ARNG and U.S. Army Reserve Promotions of Commissioned Officers and Warrant Officers Other Than General Officers), chapter 4, paragraphs 4-22 and 24, state that the officers who are selected for promotion to the next higher grade may voluntarily request delay of the promotion for a period authorized in paragraph 4-24.  Delay beyond the maximum period is not authorized unless approved by the DA, Deputy Chief of Staff for Personnel (G-1).  Request for an exception will not be considered unless the area Commander or Adjutant General recommend approval.  Denial of voluntary request for delay will not be considered to be a failure of selection for promotion unless the officer declined to accept the promotion.  This paragraph does not apply to officers serving in an Active Guard Reserve status.  Unless an exception is authorized, the period of delay will not exceed one year.  The period of delay may be extended, in one year increments to a maximum of three years from the date on which the officer would otherwise be promoted. 

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an adjustment of his date of rank for CPT from 31 January 2006 to 4 March 2005. 
He has not shown error, injustice, or inequity for the relief he now requests.



2.  The applicant contends that due to a delay in promotion notification and an 
upcoming suspense, he hurriedly signed his request for delay in promotion without sound advice and that this has prejudiced him.  A review of the timeline is as follows:

	1 March 2005	HRC-St. Louis notifies ARNG of applicant's
				promotion selection.

	14 March 2005	Army Times publishes applicant's name as a 
				selectee to CPT.

	22 March 2005	The TX Adjutant General notifies the applicant
				that he is eligible for promotion and gives him
				a suspense of 5 May 2005 to choose to delay
				promotion or select another option on enclosure.

	22 March 2005	Applicant signs request for delay in promotion.

3.  The above timeline does not support the applicant's contentions.  He was notified of promotion selection on 22 March 2005, within three weeks of the initial HRC-St. Louis notification memorandum, and given a suspense of 5 May 2005 to respond to it.  He responded to the notification on 22 March 2005 when he voluntarily executed a request for delay in promotion.  This evidence does not support his contention that his response was not voluntary because he was forced to quickly respond to the notification because it was received late and the first suspense for response had already passed.  The available evidence shows that he still had over 6 weeks in which to respond before the suspense expired.

4.  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.  Therefore, the applicant is not entitled to an adjustment of his DOR to CPT.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__mkp___  __lwr___  __reb___  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.




						Margaret K. Patterson
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060011710
SUFFIX

RECON

DATE BOARDED
20070315
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
131.0500
2.

3.

4.

5.

6.