RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 September 2007
	DOCKET NUMBER:  AR20070001152 


	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

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Frank C. Jones, II

Member

Ms. Carmen Duncan

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:

	a.  Correction of her personnel records to show an effective date of promotion from major to lieutenant colonel as 30 March 2001 instead of 19 July 2002. 

	b.  Correction of her pay records and the payment of the difference between major and lieutenant colonel (LTC) pay for the period 30 March 2001 and 19 July 2002, as a result of correction of her effective date of promotion.

	c.  Correction of her Officer Evaluation Report (OER) to show the correct grade and correct date of rank to LTC. 

2.  The applicant states, in effect, that effective 27 November 2000, she served in an authorized lieutenant colonel position and was notified on 28 February 2002 of her selection for promotion to LTC effective 30 March 2001 by the 2 October 2001 Selection Board.  She further adds that the National Guard Bureau did not coordinate with the State of Georgia in a timely manner which resulted in a delay in her Federal Recognition.  She concludes that this delay led to her 30 March 2001 date of rank and a 19 July 2002 effective date.  

3.  The applicant provided copies of the following documents in support of her application:

	a.  Extract of Table of Distribution and Allowances (TDA) for Unit Identification Code (UIC) WZUAA (U.S. Army Deputy Chief of Staff, G-1), dated 9 January 2007, showing paragraph and line number 010B-02 authorized a LTC, Army National Guard Personnel Policy Integrator.

	b.  National Guard Bureau (NGB) Orders 312-3, dated 7 November 2000, assigning the applicant to serve as an Army National Guard Personnel Policy Integrator in paragraph and line number 010B-02.

	c.  U.S. Total Army Personnel Command Memorandum, dated 28 February 2002, notifying the applicant of her selection for promotion to LTC.

	d.  State of Georgia, Military Division, Promotion Orders 198-020, dated 17 July 2002, promoting the applicant to the grade of LTC effective 19 July 2002.
	e.  NGB Memorandum, dated 19 July 2002, promoting the applicant as a Reserve commissioned officer, to LTC with a date of rank of 30 March 2001 and an effective of 19 July 2002.

	f.  NGB Special Orders Number 196 AR, dated 19 July 2002, extending the applicant’s Federal Recognition for promotion to LTC effective 19 July 2002 and with a date of rank of 30 March 2001.

	g.  A self-authored statement describing the delay in coordination between the National Guard Bureau and the State of Georgia which led to the delayed effective date of promotion.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant is a member of the Georgia Army National Guard (GAARNG) Adjutant General Corps.

3.  On 7 November 2000, the NGB published Orders 312-3 assigning the applicant, effective 27 November 2000, to the Department of the Army, Office of the Deputy Chief of Staff for Personnel, G-1, in the Army Guard Reserve (AGR) program, in a LTC/O-5 position.

4.  With an effective date of rank to major (MAJ) of 31 March 1994, the applicant was considered for promotion to LTC by the CY 2000 LTC Reserve Component Selection Board (RCSB) that convened on 6 September 2000. 

5.  On 8 March 2001, Human Resources Command, St. Louis, Missouri, sent the applicant a memorandum reference notification of promotion status as not selected for promotion to LTC.

6.  On 28 February 2002, Human Resources Command, St. Louis, Missouri, sent the applicant a memorandum reference notification of eligibility for promotion as a Reserve Commissioned Officer Not on Active Duty.

7.  On 17 July 2002, The GAARNG published Orders Number 198-020 for the applicant's promotion to LTC effective 19 July 2002.  Federal Recognition Special Order 196 AR was published for promotion to LTC effective 19 July 2002 with Promotion Eligibility Date (PED) as 30 March 2001.

8.  On 19 July 2002, the NGB sent the applicant a memorandum reference her promotion to LTC as a Reserve commissioned officer of the Army with an effective date of 19 July 2002 and a date of rank of 30 March 2001.  The NGB published Orders 312-3 assigning the applicant, effective 27 November 2000, to the Department of the Army, Office of the Deputy Chief of Staff for Personnel,   G-1, in the AGR program, in a LTC/O-5 position.

9.  On 21 April 2003, the NGB Form 600-5/10 (Army National Guard, Army Guard Reserve Position Authorization) was signed by the applicant and was validated and approved for a LTC position.  

10.  On 29 October 2004, the NGB published Orders 303-24 assigning the applicant, effective 1 November 2004, to the Department of the Army, Office of the Deputy Chief of Staff for Operations, G-3, Force Management Directorate, also in a LTC/O-5 position, for a period of 2 years and 9 months.

11.  On 15 December 2004, the NGB sent the applicant a memorandum reference notification of promotion status as selected for promotion to colonel (COL) effective 29 March 2005.  

12.  On 26 July 2006, the NGB published Orders 207-8 assigning the applicant, effective 14 August 2006, to the National Guard Bureau Readiness Center.  

13.  The applicant's Officer Evaluation Reports (OERs) for the period in question show the following entries pertaining to her rank and date of rank:

	a.  Period covered 1 November 2000 through 15 June 2001, MAJ with a date of rank as 31 March 1994.

	b.  Period covered 16 June 2001 through 15 June 2002, MAJ with a date of rank as 31 March 1994.


	c.  Period covered 16 June 2002 through 15 June 2003, LTC with a date of rank as 30 March 2001.

14.  In an advisory opinion obtained in the processing of this case on 3 August 2007, the Chief, Personnel Division, National Guard Bureau, Arlington, Virginia, recommended disapproval of the applicant’s request to adjust her Federal Recognition effective date to 30 March 2001, citing United States Code, Title 10, Chapter 14311. 

15.  The applicant acknowledged receipt and submitted a rebuttal to the advisory opinion provided by the National Guard Bureau on 24 August 2007.  

16.  In her rebuttal statement, the applicant restated that fact that she was serving in an authorized National Guard LTC/O-5 position and that this action was approved by the inter-agency Army National Guard Form ARNG0207, dated 27 November 2000.  She further adds that as of 30 March 2001, she had 7 years time in grade as a MAJ (the maximum years of service in grade for a MAJ).  The applicant also argues that the NGB should have offered TAG an opportunity to promote her on 30 March 2001.  The applicant concludes when she was selected for promotion, she was already serving in a LTC position, and thus should have been promoted immediately.  

17.  United States Code, Title 10, chapter 14311, paragraphs 2e and 3 (Delay because of limitation on officer strength in grade) states that the promotion of a Reserve officer on the Reserve-Active Status List (RASL) who is serving on active duty, or who is in full time National Guard duty administration of the Reserves or the National Guard, to a grade to which the strength limitations, shall be delayed if necessary, to ensure compliance with those strength limitations.  The delay shall expire when the Secretary determines that the delay is no longer required to ensure such compliance.  The date of rank and position on the RASL of a Reserve officer whose promotion to or Federal Recognition in the next higher grade was delayed solely as the result of the limitation imposed under the regulations prescribed by the Secretary of Defense, shall be the date on which the officer would have been promoted to or recognized in the higher grade had such limitations not existed.

18.  National Guard Regulation 600-100 (Commissioned Officer-Federal Recognition and Related Personnel Actions) provides procedures for processing all applications for Federal Recognition.  Chapter 8 states, in pertinent part, that the promotion authority of officers in the National Guard is a function of The Adjutant General (TAG) and that if TAG chooses not to promote an officer, he/she is not obligated to do so.  Active Guard/Reserve (AGR) control grade authorization must be available prior to promotion of AGR officers to any grade above captain.

19.  Paragraph 2-1 of National Guard Regulation 600-100 states that commissioned officers of the ARNG are appointed by the several States under Article 1, Section 8 of the U. S. Constitution.  These appointments may be federally recognized by the Chief, NGB under such regulations as the Secretary of the Army may prescribe and under the provisions of this regulation.  Officers who are federally recognized in a particular grade and branch shall be tendered an appointment in the same grade as Reserve commissioned officers of the Army with assignment to the Army National Guard of the United States if they have not already accepted such appointment.  

20.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than general Officers) prescribes the policies and procedures for the promotion of Reserve warrant officers.  Paragraph 4-15c of this regulation states that commissioned officers serving on active duty in AGR status may be promoted or extended Federal Recognition in a higher grade provided the duty assignment or attachment of the officer requires a higher grade than that currently held by the officer.  AGR officers who have been selected for promotion and are not assigned or attached to a position calling for a higher grade will receive a delay of promotion without requesting such action.  AGR officers will remain on the promotion list and serve on active duty in the AGR program until they are removed from the promotion list, or promoted to the higher grade following assignment or attachment to an AGR position calling for the higher grade, or promoted to the higher grade, if eligible following release from active duty.  Paragraph 4-22 of the regulation states that voluntary delay does not apply to officers serving in an AGR status.

21.  National Guard Regulation 600-100 (Commissioned Officer-Federal Recognition and Related Personnel Actions) provides procedures for processing all applications for Federal Recognition.  Paragraph 2-1 states that commissioned officers of the ARNG are appointed by the several States under Article 1, Section 8 of the U. S. Constitution.  These appointments may be federally recognized by the Chief, NGB under such regulations as the Secretary of the Army may prescribe and under the provisions of this regulation.  Officers who are federally recognized in a particular grade and branch shall be tendered an appointment in the same grade as Reserve commissioned officers of the Army with assignment to the Army National Guard of the United States if they have not already accepted such appointment.

22.  Army Regulation 623-105 (Officer Evaluation Reporting System) prescribes the officer evaluation function of the military personnel system.  Paragraph 3-16d states, in pertinent part, that Part Ic of the DA Form 67-9 (Officer Evaluation Report) will contain the officer's abbreviated grade.  If the rated officer has been selected for promotion and is serving in an authorized position for the grade to which he or she is to be promoted, the letter "P" is entered next to the officer's current grade, i.e. CPTP, LTCP, etc.  If the rated officer is not assigned to a position authorized the higher grade, do not use the letter "P."

23.  Army Regulation 623-105 states, in pertinent part, that an evaluation report accepted for inclusion in the official record of an officer is presumed to be administratively correct.  The rated officer may appeal any report that he or she believes is incorrect or inaccurate.  The Personnel Support Battalion or administrative office servicing the rated officer's unit may request minor administrative changes to an accepted report in Parts I, II, and IIIb of the DA Form 67-9, with supporting evidence.  This type of request is not an appeal, however, the Commander, National Guard Bureau, ATTN: NGB-ARP-CO, Arlington, VA  22204 or the Commander, Army Human Resources Command, ATTN: DARP-PRE-A, St. Louis, MO, will process them.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that she is entitled to correction of her date of rank to lieutenant colonel from 30 March 2001 instead of 19 July 2002, payment of the difference in pay between an O-4 and an O-5 for the period 30 March 2001 and 19 July 2002, and correction of her OER to show that she served as a lieutenant colonel. 

2.  The GAARNG did not promote the applicant until 19 July 2002 and did not extend Federal Recognition until 19 July 2002.  As explained by the National Guard Bureau advisory opinion, promotion authority of officers is a function of The Adjutant General (TAG) and that the applicant's delay in promotion or Federal Recognition was strictly the result of strength limitations imposed and prescribed by regulations.

3.  In view of the strength limitations mandated at the time of the applicant's selection for promotion, there is no basis to grant the relief of the applicant's request for adjustment of her effective date for promotion to LTC and her entitlements for pay and allowances as a LTC, effective 30 March 2001.

4.  The applicant's OER for the period 16 June 2001 through 15 June 2002 should reflect the applicant's grade as a LTC and her date of rank as 30 March 2001.  The applicant may request through her administrative office correction of the rank and/or date of rank through the National Guard Bureau. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__lds___  __fcj___  __cd____  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.




							Linda D. Simmons
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070001152
SUFFIX

RECON

DATE BOARDED
20070906
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
131.0500
2.

3.

4.

5.

6.