RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 June 2007
	DOCKET NUMBER:  AR20060013059 


	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, adjustment of her date of rank (DOR) for captain (CPT) from 21 August 2006 to 18 August 2005. 

2.  The applicant states, in effect, that through no fault of her own there was a delay in her promotion to CPT.  She contends that her battalion commander advised her in March 2005 to start putting her promotion packet together and she discovered her official record was incomplete because her chain of command had not completed her Officer Evaluation Reports (OER) in a timely manner.  This precluded her record from being examined by a Federal Recognition Examining Board (FREB) for promotion in 2005 and she has fallen 9 months behind her peers.  She was fully qualified for promotion on 18 August 2005.

3.  The applicant provides copies of her initial appointment orders; her Service School Academic Evaluations Reports (DA Form 1059); her 2006 NGB Form 89 (Proceedings of a Federal Recognition Examining Board (FREB)); her OERs; her Federal Recognition Orders; and DD Form 214 (Certificate of Release or Discharge from Active Duty) with an effective date of 15 September 2006. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that she was appointed as Second Lieutenant in the Wisconsin Army National Guard (WIARNG) effective 18 August 2001.

2.  The applicant attended the Ordnance (OD) Officer Basic Course (ODOBC), Class 9-02 from 22 July 2002 to 4 December 2002.  She completed the course and was designated an Honor Graduate based upon her academic performance.  On 4 December 2002, she was awarded Area of Concentration (AOC) 91A, (Ordnance, General).

3.  The applicant transferred to the California Army National Guard (CAARNG) on 21 February 2003.  She was promoted to First Lieutenant effective 18 August 2003.

4.  The applicant completed the Ordnance Maintenance Management Officer Advanced Course on 31 October 2003.  On 5 October 2004, the CAARNG issued Orders Number 279-1079 assigning the applicant to a Captain (CPT/O-3) battalion maintenance officer billet, effective 1 October 2004.

5.  The applicant's CAARNG chain of command was deficient in completing her OERs in a timely fashion.  Three of her OERs were completed well after the cut-off dates.  Her OER for the period ending 20 October 2003 was completed on 15 December 2005; her OER for the period ending 30 September 2004 was completed on 16 December 2005; and her OER for the period ending 10 August 2005 was completed on 22 May 2006.

6.  On 18 August 2005, the applicant attained the minimum time-in-grade (TIG) requirement for promotion to the rank of CPT.  On 24 May 2006, the CAARNG approved the FREB Proceedings for the applicant to assume a unit vacancy promotion to CPT.  On 26 May 2006, the CAARNG issued Orders Number 
146-1009 promoting the applicant to CPT with an effective date and DOR of 
24 May 2006.  The orders stated that the effective date of promotion in the ARNG would be indicated on the Federal recognition order.

7.  On 23 August 2006, the National Guard Bureau (NGB) issued Special Order Number 217 AR extending Federal recognition and promoting the applicant to CPT with an effective DOR of 21 August 2006.

8.  The applicant served on active duty from 7 September 2005 through 15 September 2006.

9.  In an advisory opinion dated 10 April 2007, the Chief, Personnel Division, Departments of the Army and the Air Force, NGB, reiterated the applicant's request and statements.  The advisory opinion 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 basis.  In accordance with ROPMA, the effective date of promotion and date of 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.

10.  On 19 April 2007, the applicant was provided with a copy of the advisory opinion for comment and/or rebuttal.

11.  On 3 May 2007, the applicant provided her rebuttal to the advisory opinion.  She again reiterated her contentions and her request for an earlier DOR to CPT, contending that being promoted through a unit vacancy promotion is irrelevant because if the two delinquent OERs had been completed prior to 18 August 2006, she would have been promoted on that date.  Although the applicant stated "18 August 2006" twice in her rebuttal, it appears she meant "18 August 2005." 
12.  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, TIG requirements for promotion are as follows:  from 2LT to 1LT – 2 years; from 1LT to CPT – minimum 2 years and maximum 5 years.  Further, 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 from the Secretary of Defense.  

13.  National Guard Regulation 600-100 provides procedures 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 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 her DOR for CPT to 18 August 2005.  She has not shown error, injustice, or inequity for the relief she now seeks.

2.  The applicant contends she was fully qualified for promotion on 18 August 2005 and that she was assigned to an authorized CPT position.  Because her OERs were not submitted in time, the State FREB did not consider her record in 2004 and 2005.  Although she was transferred to a maintenance officer (CPT) position on 1 October 2004, she did not have the 2 years minimum TIG required for promotion consideration to CPT in 2004.  In March 2005, she contends her battalion commander suggested she start putting her promotion packet together, presumably because in August 2005 she would have met the minimum 2 years TIG and could then be considered for promotion to CPT by a position vacancy board.  However, simply because the applicant met the minimum 2 years TIG requirement on 18 August 2005, does not mean she is entitled to that date as her effective DOR.


3.  NGB Personnel Division recommended disapproval of her request because she was promoted based on a position vacancy promotion, a below the zone promotion to CPT, 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.  Again, promotion consideration below the zone is a privilege and not a right.

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 26 May 2006, the State FREB approved the applicant's promotion to CPT, OD based on position vacancy.  The NGB issued Federal Recognition orders promoting her to CPT in the OD branch effective 23 August 2006, the date the Secretary of Defense approved the vacancy promotion list.

5.  As noted above, even if the applicant’s promotion packet was placed on hold due to delinquent OERs as she alleges, it does not entitle her to promotion to CPT on 18 August 2005.  The applicant was not entitled to promotion to CPT until she was extended Federal recognition in an approved promotion vacancy promotion.  Her name was placed on the list on 26 May 2006 and the list was not approved until 21 August 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

__jea___  __jlp___  __jbm___  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.




							James E. Anderholm
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060013059
SUFFIX

RECON

DATE BOARDED
20070626
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
131.0500
2.

3.

4.

5.

6.