RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 29 March 2007
DOCKET NUMBER: AR20060012340
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. Dean L. Turnbull
Analyst
The following members, a quorum, were present:
Mr. Lester Echols
Chairperson
Ms. Linda M. Baker
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 the difference in pay between lieutenant colonel and colonel from 17 February 2005 to the date he was promoted to colonel.
2. The applicant states, in effect, that in 2002 he was assigned as Detachment Commander of the New York City (NYC) Selective Service System, an
06 (colonel) position in the New York Army National Guard (NYARNG). On October 2004, he was mobilized to Iraq with the 42d Infantry Division, NYARNG. In December 2005, he returned from his deployment and was released from active duty in January 2006.
3. He states that upon his release from active duty, he was reassigned to his position as Detachment Commander of the NYC Selective Service System. He was then informed that the Selective Service System had eliminated the
06 positions in all the states as a cost saving measure on 31 December 2005.
4. The applicant continues that he appealed his nonselection for promotion to colonel by the 2004 promotion board, and in April 2006 he was notified that his appeal had been approved. As a result, he was promoted to colonel effective 17 February 2005. Since the NYARNG did not have a position for him as a colonel, he transferred to the USAR Control Group to accept the promotion.
3. The applicant provides:
a. a copy of his DD Form 214 (Certificate of Released or Discharge from Active Duty);
b. a copy of a letter from the Selective Service System, dated 1 December 2002;
c. a copy of the Office of the Adjutant General, State of New York Orders Number 343-030, dated 9 December 2002;
d. a copy of the Office of the Adjutant General, State of New York Orders Number 279-104, dated 5 October 2004;
e. two copies of a letter from the U.S. Army Human Resources Command (USAHRC), dated 18 April 2006;
f. a copy of a promotion orders dated 1 August 2006;
g. a copy of a written statement, dated 18 August 2006; and
h. a copy of the Office of the Adjutant General Joint Forces Headquarters Orders Number 181-1020, dated 30 June 2006.
CONSIDERATION OF EVIDENCE:
1. The applicants military records show that on 1 December 2002, the applicant, a lieutenant colonel, was transferred from Headquarters and Headquarters Company (HHC), 107th Support Group, NYARNG, to the position of Chief, Detachment 1, Headquarters, STARC.
2. On 5 October 2004, orders were issued ordering the applicant to active duty. Those orders show the applicant was then assigned to HHC, 42nd Infantry Division. On 10 January 2006, the applicant was honorably released from active duty after serving 1 year, 2 months, and 27 days of active service. The separation document he was issued at that time shows that when he was released from active duty he was transferred to HHC, 42nd Infantry Division.
3. Army Regulation 135-155, paragraph 4-19, effective date, states that USAR unit officers who are selected for promotion by a mandatory board will be promoted on their promotion eligibility date provided they are assigned to a position vacancy in the higher grade. If not assigned to a position in the higher grade, the officer may opt to transfer to a non-unit status (USAR Control Group) to accept the promotion. Section IV of this regulation provides for officers to decline promotions for a period of time to retain unit membership if they are not assigned to a position of the higher grade.
4. In the processing of this case, an advisory opinion was obtained from the USAHRC. The USAHRC stated, in effect, that while the applicant was deployed a Standby Advisory Board (STAB) considered him for promotion to colonel under the 2004 colonel promotion criteria. The STAB recommended the applicant for promotion. Upon his return from deployment, he was informed that the colonel position he previously held in the NYARNG had been eliminated. The applicant transferred to the USAR on 1 July 2006 to accept the promotion to colonel. The applicant was given the date of rank of 17 February 2005, the date the
2004 Colonel DA Reserve Component Selection Board was confirmed by the Senate. The USAHRC further stated that the applicant is not entitled to back pay retroactive to 17 February 2005 because he was in the NYARNG at that time and there were no available colonel positions for him to fill at that time.
DISCUSSION AND CONCLUSIONS:
1. The applicant was assigned to HHC, 42nd Infantry Division on 5 October 2004, as evidenced by his active duty orders.
2. The applicants separation document shows that he was transferred back to HHC, 42nd Infantry Division when he was released from active duty.
3. As such, the applicant never occupied a colonels position in the NYARNG after 17 February 2005. Since he did not occupy a colonels position, he could not be promoted to colonel until he transferred to the USAR Control Group.
4. As such, he is not entitled to the difference in pay between lieutenant colonel and colonel from 17 February 2005 to the date he was promoted to colonel.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___le_____ ___mjf__ ___lmb__ 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.
_________Lester Echols_________
CHAIRPERSON
INDEX
CASE ID
AR20060012340
SUFFIX
RECON
YYYYMMDD
DATE BOARDED
20070329
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.
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