RECORD OF PROCEEDINGS


	IN THE CASE OF:	   


	BOARD DATE:	  8 May 2007
	DOCKET NUMBER:  AR20060012170 


	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

Mr. Michael L. Engle

Analyst


The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Jerome L. Pionk

Member

Mr. Eddie L. Smoot

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 promotion to major, pay grade O4.

2.  The applicant states, in effect, that on 31 March 2006, he submitted a request to the Michigan Army National Guard (MIARNG) requesting promotion to major in accordance with Army National Guard Bureau (NGB) Memorandum, NGB-ARH, Promotion of Mobilized National Guard Officers, dated 30 January 2004.  He further states that he reached the maximum time-in-grade as a captain on 8 April 2006 and was mobilized at the time and serving in Kuwait.  The MIARNG would not process his promotion.  He says that he continued to request this promotion through his battalion to no avail.  The Theater National Guard Affairs Office also was unable to resolve the issue even after direct contact with the MIARNG.  On 29 June 2006, he received an e-mail from the Director of Personnel, MIARNG informing him that his promotion was not supported by the MIARNG because his most recent officer evaluation report (OER) was referred.  The applicant further contends that his promotion should have been processed in a timely manner and the fact that he had received a referred OER (appeal pending) is irrelevant.  He should have been promoted when he reached his maximum time-in-grade.

3.  The applicant provides copies of mobilization orders; Memorandum, Eligibility for Promotion to Major, dated 28 June 2005; MIARNG memorandum dated 
31 March 2006; and e-mails dated 29 June 2006 and 28 July 2006. 

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was serving as a mobilized member of the MIARNG in the rank of captain (date of rank 9 April 1999), serving in Kuwait, in support of Operation Iraqi Freedom since 18 July 2005.

2.  On 14 January 2005, the applicant completed the Quartermaster Officer Advanced Course.

3.  Orders 047-034, MIARNG, dated 16 February 2005, assigned the applicant in a captain position as a company commander.

4.  On 28 June 2005, the United States Army Human Resources Command, 
1 Reserve Way, St. Louis, Missouri, published a memorandum for the ARNG Personnel Center, announcing the selection of the applicant for promotion to major as a Reserve commissioned officer not on active duty.  The effective date of his promotion was indicated as 8 April 2006.

5.  Orders 361-011, MIARNG, dated 27 December 2005, assigned the applicant as the battalion S2/S3 Officer in charge, a major's position.

6.  On 31 March 2006, the applicant notified the MIARNG that he was being promoted to major in accordance with the NGB memorandum dated 30 January 2004.  This promotion was based on his selection by a Department of the Army (DA) Mandatory Promotion Board upon reaching his maximum time in grade.  He acknowledged that if he did not occupy a major's position by the last day of the 6th month following his demobilization, he would be involuntarily transferred to the United States Army Reserve (USAR) Individual Ready Reserve (IRR).

7.  On 25 May 2006, the applicant acknowledged receiving a referred OER for the rated period from 18 July 2005 to 4 May 2006.  Both his rater and senior rater indicated that he should not be promoted.  

8.  On 31 May 2006, the applicant provided his rebuttal comments to the referred OER in a Memorandum for Record.  There is no available evidence showing the status of his appeal. 

9.  On 29 June 2006, the Director of Army Personnel, MIARNG, notified the applicant via e-mail that because his latest OER had been referred, the MIARNG would not support his promotion to major.  This e-mail further indicated that the applicant still had two years remaining on his 3-year delay as the result of being a DA select and could still be promoted if his rating improved.

10.  On 31 October 2006, the applicant was released from active duty in the rank of captain, pay grade O3, and transferred to the MIARNG. 

11.  In the processing of this case an advisory opinion was obtained from the Chief, Personnel Division, NGB, Arlington, Virginia, 22204-1382, wherein, he opined that the applicant had reached his maximum time in grade as a captain effective 8 April 2006 and should have been promoted to major.  The Chief further stated that the applicant should receive all back pay and allowances due him as a result of this promotion.  He further stated that if the MIARNG did not have a major's position for the applicant, he is to be transferred to the USAR IRR. 

12.  The Chief, Personnel Division, NGB, further stated in his advisory opinion that the memorandum from the Assistant Secretary of the Army to the Deputy Chief of Staff for Personnel, dated 17 December 2003, referenced promotion of mobilized Reserve officers on the Reserve active status list, states that under authority of the Secretary of the Army, the memorandum establishes promotion policy for mobilized Reserve component officers for promotion to the grades of captain through colonel.  It also states that a mobilized Army National Guard of the United States officer covered by this policy memorandum who has been recommended for promotion to the next higher grade by a mandatory promotion board and who is on an approved 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.  An officer promoted under this policy should be assigned to that position against which the officer was matched or appointed within 180 days after demobilization.  It furthers states that the Director, Army National Guard implements this policy memorandum, and will ensure that promotions do not exceed the personnel strength and strength-in-grade limitation of Title 10, United States Code (USC).  It also states that the policy memorandum does not preclude mobilized officers from voluntarily delaying or declining promotion under the provisions of Title 10, USC, section 14312, and Army Regulation 135-155.  Per the Director, Army  National Guard Memorandum, dated 30 January 2004, reference promotion of mobilized Army National Guard officers, who are selected for promotion by a DA mandatory promotion board, while the memorandum, dated 17 December 2003, from the Assistant Secretary of the Army authorizes States to promote mobilized officers under this policy, there is no requirement to do so.  It also states that mobilized officers who reach maximum will be promoted whether or not assigned against a position of higher grade.

13.  On 9 April 2007, the applicant concurred with the advisory opinion.

DISCUSSION AND CONCLUSIONS:

1.  The evidence clearly shows that the applicant was ordered to active duty and assigned to Iraq on 18 July 2005.  On 27 December 2005, he was assigned to a major's position in the MIARNG.  He was selected for promotion to major by the DA Mandatory Promotion Board effective 8 April 2006.  Therefore, he should have been promoted at that time.

2.  The applicant received a referred OER for a rated period that ended after the effective date of his promotion to major.  Therefore, it had no force or effect to preclude what should have already occurred, his promotion to major. 

3.  In view of the above, the applicant should be promoted to major with a date of rank 8 April 2006 and receive appropriate back pay and allowances.




BOARD VOTE:

__JLP____  __ELS_  __LDS_     GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by promoting him to the rank of major, pay grade O4 with a date of rank and an effective date of 8 April 2006.  Furthermore, he should be paid appropriate pay and allowances due him as a result of this promotion. 





__      Linda D. Simmons____
          CHAIRPERSON




INDEX

CASE ID
AR20060012170
SUFFIX

RECON
 
DATE BOARDED
20070508 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
131.0000.0000
2.

3.

4.

5.

6.