RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 July 2007
	DOCKET NUMBER:  AR20060013047 


	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. Wanda L. Waller

Analyst


The following members, a quorum, were present:


Ms. Kathleen Newman

Chairperson

Ms. Susan Powers

Member

Mr. Edward Montgomery

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 (DOR) for captain be changed to 5 April 2006 or 11 August 2005 with the appropriate back pay. 

2.  The applicant states that on 5 April 2006 his state promotion board recommended him for promotion to captain and submitted his packet to the National Guard Bureau for Federal Recognition.  He contends that it was his understanding that the only prerequisites for promotion to captain in the Judge Advocate General’s (JAG) Corps was to finish the officer basic course and to spend one year in grade.  He states the National Guard Bureau did not issue Federal Recognition orders until 10 August 2006, over four months later and one year after he completed the basic course.  He points out that the unjust nature of this delay is magnified in light of the fact that active duty JAG first lieutenants receive promotion to captain immediately upon completing the officer basic course, while members of the National Guard must spend at least one year in grade before being eligible for promotion. 

3.  The applicant provides promotion orders, dated 11 April 2006; Federal Recognition orders, dated 10 August 2006; and a DA Form 1059 (Service School Academic Evaluation Report), dated 22 August 2005. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is serving in Afghanistan in support of Operation Enduring Freedom.

2.  The applicant completed the Judge Advocate Officer Basic Course on 
11 August 2005. 

3.  Oregon Military Department, Joint Force Headquarters, Oregon National Guard Orders 101-035, dated 11 April 2006, show the applicant was promoted to captain in the JAG Corps effective 5 April 2006 with a DOR of 5 April 2006.  These orders also state, in pertinent part, that the effective date and DOR of promotion are not valid until Federal Recognition has been extended by the Chief of National Guard Bureau.

4.  Departments of the Army and the Air Force, National Guard Bureau, Special Orders Number 204 AR, dated 10 August 2006, show the applicant was granted Federal Recognition for promotion to captain in the JAG Corps effective 
10 August 2006.   

5.  In the processing of this case, a staff advisory opinion was obtained from the National Guard Bureau.  That office recommends disapproval of the applicant’s request based on the Reserve Officer Personnel Management Act and states that [the time that passed] is the normal processing time since the scroll list has to be verified by different offices at the Department of the Army level before it is approved by the Secretary of Defense.  The opinion points out that in accordance with ROPMA the effective date of promotion and DOR of an officer who is promoted under the position vacancy system will be the date the Chief, National Guard Bureau extends Federal Recognition based on the approved list date from the Secretary of Defense.  The promotion effective date is not the date of appointment into the position, nor is it the date the State Federal Recognition examining board is approved.  The opinion further states that coordination with the National Guard Bureau Federal Recognition section revealed that the applicant’s promotion packet was received on 21 April 2006 and that on 28 April 2006 his name was placed on the scroll list to be forwarded to the Secretary of Defense for approval.  That section stated that the scroll list usually takes between 90 to 120 days for approval due to the list having to be processed through numerous offices before it is approved by the Secretary of Defense.  

6.  A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  On 30 May 2007, the applicant responded.  In summary, he stated that if his DOR is to be the date of Federal Recognition, the processing time is too lengthy and works an unnecessary hardship on Soldiers.  He states the delay experienced by him and other Soldiers in the Federal Recognition processing time deprives Soldiers the pay and benefits associated with their newly acquired rank.  He claims that his promotion packet was not accepted until 14 March 2006 and since he was not allowed to apply for promotion upon completion of the prerequisites he requests that his DOR be changed to a date around the time he completed his basic course in August 2005.   

7.  National Guard Regulation 600-100 prescribes policies and procedures governing, in part, the appointment, Federal Recognition, and separation of commissioned officers of the Army National Guard.  Chapter 8 states that the promotion of officers in the Army National Guard is a function of the State.  A commissioned officer promoted by State authorities has a State status in the higher grade under which to function.  However, to be extended Federal Recognition in the higher grade, the officer must have satisfied the requirements prescribed in this chapter.

8.  National Guard Regulation 600-100, paragraph 8-6 states that wearing of insignia of the higher grade is not authorized until Federal Recognition has been extended by the Chief, National Guard Bureau.

9.  Table 1-4 of the Department of Defense Financial Management Regulation, Volume 7A, Chapter 1, dated April 2007, states that when a member is an officer and the action is promotion to a grade above O-1 in the Uniformed Services then the effective date of increase in pay and allowances is the effective date of the promotion. 

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant was promoted to captain by the State on 5 August 2006 with a DOR of 5 August 2006.  However, it was a conditional promotion.  The orders noted that the effective date and DOR of promotion were not valid until Federal Recognition was extended.    

2.  Evidence of record shows that he was granted Federal Recognition on 
10 August 2006.  The applicant may consider the time it took to process his Federal Recognition through Army levels to the Secretary of Defense to be excessive; nevertheless, all officers in similar situations must go through the same process.  Therefore, there appears to be no inequity in not changing his effective date of promotion or his captain DOR.   

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

KN____  _SP_____  ___EM___  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.



__Kathleen Newman_____
          CHAIRPERSON




INDEX

CASE ID
AR20060013047
SUFFIX

RECON

DATE BOARDED
20070710
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
112.0200
2.

3.

4.

5.

6.