RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        4 December 2007
      DOCKET NUMBER:  AR20070002216


      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. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Ms. Eloise C. Prendergast         |     |Member               |
|     |Mr. James R. Hastie               |     |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, in effect, that his captain (CPT) date of rank
(DOR) be changed to 1 February 2004.

2.  The applicant states, in effect, that his DOR to CPT should be 1
February 2004, and his actual promotion date was 9 September 2004.  He
states that this error adversely impacts his chances for a unit vacancy
promotion to major (MAJ) and puts him behind his peers for promotion
consideration for MAJ.

3.  The applicant provides a hand-written page on his promotion eligibility
in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he was commissioned a second
lieutenant in the United States Army Reserve (USAR) and extended Federal
Recognition in the Army National Guard (ARNG) on 6 October 1996.  He was
promoted to first lieutenant and granted Federal Recognition in that grade
in the ARNG on
2 February 1999.

2.  On 10 July 2003, the Chief, Office of Promotions, Reserve Components
(RC), United States Army Personnel Command, St. Louis, Missouri (PERSCOM-
St. Louis) notified the ARNG Personnel Center that the applicant had been
selected for promotion to CPT by promotion board that adjourned on 5 March
2003.  The memorandum also indicated that the effective date of the
applicant's promotion would be either the date shown, which was 1 February
2004; the date Federal Recognition is extended in the higher grade; or the
date following the date Federal Recognition is terminated in current
Reserve grade.  It further indicated that if the applicant accepted the
promotion and Federal Recognition was not extended in the higher grade, the
applicant would be transferred to the USAR in his current grade on the date
following the date of termination of Federal Recognition.

3.  On 5 May 2004, the Missouri National Guard published orders promoting
the applicant to CPT effective 20 March 2004 and Federal Recognition was
extended to the applicant in the rank of CPT on 9 June 2004.

4.  In connection with the processing of this case, an advisory opinion was
obtained from the National Guard Bureau (NGB) Chief of the Personnel
Division. This official indicated that the NGB recommended the applicant's
DOR to CPT be adjusted to 25 March 2004 based on the date he was promoted
by the State Adjutant General, which was 20 March 2004 and the normal NGB 5-
day processing time for granting Federal Recognition.  The opinion further
indicates that based on the governing ARNG regulation, in order to be
promoted, the officer must be assigned to an appropriate position vacancy
in the higher grade, must remain in the position until Federal Recognition
is granted.  She further indicates that the authority to promote ARNG
officers rests with the State Adjutant General, and the State is not
obligated to promote an ARNG officer if they chose not to.

5.  On 27 August 2007, the applicant was provided a copy of the NGB
advisory opinion in order to have the opportunity to respond.  To date, he
has failed to reply.

6.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant
Officers Other Than General Officers) prescribes policy and procedures used
for selecting and promoting commissioned officers (other than commissioned
warrant officers) of the Army National Guard of the United States (ARNGUS)
and of commissioned and warrant officers (WO) of the U.S. Army Reserve
(USAR). Section II provides guidance on promotion dates.  It states, in
pertinent part, that the promotion of commissioned officers can not be
prior to the date on which the promotion memorandum is issued.  In
addition, the officer must already be assigned/attached to a position in
the higher grade or, if an Individual Ready Reserve (IRR) or Individual
Mobilization Asset (IMA) officer selected by a mandatory promotion board,
must have completed the maximum years of service in grade in the current
grade.

7.  National Guard Regulation 600-100 provides the policies and procedures
governing promotion of ARNG officers other than general officers.  It
states, in pertinent part, that the promotion of ARNG officers is a
function of the State.  It further indicates that unit vacancy promotions
of qualified officers are based on the recommendations of the member's
immediate commander, properly endorsed by all commanders concerned and the
Adjutant General.  It also provides procedures for processing all
applications for Federal Recognition by the NGB.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his CPT DOR should be corrected was
found to have partial merit.  By regulation, the promotion of ARNG officers
is a function of the State, and other than a member of the IRR/IMA, the
officer must be assigned to a position authorized the higher grade in order
to be promoted.

2.  The evidence of record in this case confirms that the promotion
memorandum announcing the applicant's selection for promotion to CPT
authorized his promotion on his promotion eligibility date, which was 1
February 2004; or the date Federal Recognition was extended in the higher
grade; or the date following the date Federal Recognition was terminated in
current Reserve grade.  It further shows that he was promoted by the State,
effective 20 March 2004, which must be presumed to be the date he was
assigned to a position authorized the higher grade.  It also shows that he
was not granted Federal Recognition to CPT until
9 September 2004.

3.  In view of the facts of this case, it would be appropriate and serve
the interest of justice to correct the applicant's record to show he was
promoted to CPT and granted Federal Recognition in that grade on 20 March
2004, and by providing him any back pay and allowances due as a result of
this change.

4.  Absent any evidence that the applicant was assigned to and performing
duties in a CPT position in the Missouri ARNG on 1 February 2004, his
promotion eligibility date, there is an insufficient evidentiary basis to
correct his promotion date to CPT to this date.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__LDS __  __ECP__  __JRH___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by showing he was promoted to captain and granted
Federal Recognition in that grade on 20 March 2004; and by providing him
any back pay and allowances due as a result.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
changing his captain promotion date to 1 February 2004.




                                  _____Linda D. Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070002216                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/12/04                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT PARTIAL                           |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |102.0700                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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