RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  30 August 2007
	DOCKET NUMBER:  AR20070002623 


	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:


Mr. Bernard P. Ingold

Chairperson

Mr. Thomas M. Ray

Member

Mr. Gerald J. Purcell

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 his date of rank (DOR) to lieutenant colonel (LTC) be adjusted from 7 February 2007 to 5 December 2004.

2.  The applicant states that due to an unspecified administrative error on the part of the New York Army National Guard (NYARNG), he was not selected for promotion by the Calendar Year 2004 (CY 2004) LTC Reserve Component Selection Board (RCSB).  After being selected under the CY 2004 RCSB criteria by a Special Selection Board (SSB) that adjourned on 23 March 2005, the NYARNG repeatedly failed to process his promotion until 29 December 2006.  He was promoted on 7 February 2007.

3.  The applicant provides:

	a.  Orders 084-1013, Office of The Adjutant General (NY), Joint Force Headquarters, Latham, NY, dated 24 March 2004, as amended by Orders 
107-1015, dated 16 April 2004, transferring him to an LTC billet.

	b.  Memorandum, US Army Human Resources Command (AHRC), St. Louis, MO, dated 14 December 2004, notifying him that he was not selected for promotion by the CY 2004 LTC RCSB.

	c.  Memorandum, AHRC, St. Louis, MO, dated 7 October 2005, notifying him that he was selected for promotion to LTC under the CY 2004 RCSB criteria by an SSB that adjourned 23 March 2005.

	d.  Special Orders Number 29 AR, Departments of the Army and Air Force National Guard Bureau, Washington, DC, dated 7 February 2007, extending Federal recognition to the applicant in the rank of LTC, effective 7 February 2007.

	e.  Orders 004-1042, Office of The Adjutant General (NY), Joint Force Headquarters, Latham, NY, dated 4 January 2007, promoting the applicant to LTC with an effective date and DOR of 4 January 2007.

	f.  Self-authored documents entitled "Timeline of Events and Supporting Documentation."

	g.  Electronic mail (email) dated 8 February 2007, 12 January 2007, 18 October 2006, and 12 October 2006.

	h.  DMNA Form 188-2-R (Request for Orders), dated 4 April 2004, that requested orders promoting the applicant to LTC.

	i.  Memorandum, 727th Military Police Detachment (Law & Order), Poughkeepsie, NY, dated 4 November 2004, wherein the applicant requests a SSB for promotion consideration to LTC.

4.  The applicant also provides the following miscellaneous documents:

	a.  Special Orders Number 62 AR, Departments of the Army and Air Force National Guard Bureau, Washington, DC, dated 6 April 1998, extending Federal recognition to the applicant in the rank of major (MAJ), effective 6 April 1998.

	b.  DA Form 1059 (Service School Academic Evaluation Report), dated 28 December 2004, showing that the applicant completed the US Army Command and General Staff College's Command and General Staff Officer Course.  [NOTE:  The applicant's iPERMS (Integrated Personnel Electronic Records Management System) records show that he received his 50% completion certificate on 5 August 2003 and that it was received by the NYARNG on 26 February 2004.]

	c.  Memorandum, 727th Military Police Detachment (Law & Order), Poughkeepsie, NY, dated 15 March 2005, wherein the applicant requests Federal Recognition as a MAJ, Military Police Corps.

	d.  Memorandum, AHRC, St. Louis, MO, dated 12 January 2006, notifying him that he was selected for promotion to LTC by the CY 2005 RCSB that adjourned 30 September 2005.

	e.  Orders 121-166, Office of The Adjutant General (NY), Joint Force Headquarters, Latham, NY, dated 1 May 2006, mobilizing the applicant in support of Operation Iraqi Freedom (OIF) for a period not to exceed 545 days.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a NYARNG LTC, Military Police Corps.  His DOR to LTC is 7 February 2007.


2.  With an effective DOR to MAJ of 26 March 1998, the applicant was considered for promotion to LTC by the CY 2004 LTC RCSB.  Although he had a 50% completion certificate for the Command and General Staff Officer Course posted to his NYARNG records on 26 February 2004, he was not selected for promotion.

3.  The applicant discovered that his Command and General Staff Officer Course 50% completion certificate had not been forwarded to AHRC-St. Louis and was not in his promotion packet which went before the CY 2004 LTC RCSB.  On 4 November 2004, he initiated a memorandum to AHRC-St. Louis requesting he be given an SSB utilizing the CY 2004 LTC RCSB criteria.  This request was granted.

4.  In December 2004, prior to the convening of an SSB, the applicant completed the Command and General Staff Officer Course and forwarded his DA Form 1059 to AHRC-St. Louis.

5.  On 23 March 2005, an SSB adjourned after considering the applicant for promotion to LTC under the CY 2004 RCSB criteria for promotion.  On 7 October 2005, the applicant was notified that he had been selected for promotion with an effective DOR of either 5 April 2005, or the date Federal Recognition is extended as an LTC, or the date following the date Federal Recognition is terminated in his current Reserve grade of MAJ.

6.  Although the applicant was already promotable to LTC and had been notified as such on 7 October 2005, the CY 2005 LTC RCSB erroneously considered him and selected him for promotion by that board with an effective DOR of either 5 April 2005, or the date Federal Recognition is extended as an LTC, or the date following the date Federal Recognition is terminated in his current Reserve grade of MAJ.

7.  On 1 May 2006, the applicant was ordered to active duty in support of Operation Iraqi Freedom by the State of New York for the period 11 June 2006 through 11 December 2007.  He was ordered to active duty as a MAJ.

8.  The applicant queried the NYARNG concerning the status of his promotion to LTC.  He ultimately sent an email to the State of New York Inspector General (IG) on 12 October 2006 asking for an investigation into the matter surrounding his promotion.  In a response dated 18 October 2006, the State of New York IG informed the applicant The Adjutant General (TAG) of New York directed that he be promoted to lieutenant colonel/pay grade O-5.  TAG signed the applicant's promotion on 29 December 2006.
9.  Orders 004-1042, Office of The Adjutant General, Joint Force Headquarters, Latham, NY, dated 4 January 2007, promoted the applicant to LTC with an effective date and DOR of 4 January 2007.  The National Guard Bureau extended the applicant Federal Recognition as a LTC by Special Orders Number 29 AR, dated 7 February 2007.  The effective date was 7 February 2007.

10.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Division, National Guard Bureau.  After a thorough review of the facts and circumstances of the applicant's case, the National Guard Bureau recommended that his date of rank to LTC be adjusted to 5 April 2005 based on the Special Selection Board memorandum of 7 October 2005.  The applicant was provided a copy of the National Guard Bureau advisory opinion for review and comment.  On 16 August 2007, the applicant concurred with the advisory opinion and elected not to provide written comments.

11.  Title 10, U. S. Code, section 14304 states officers shall be placed in the promotion zone for that officer’s grade and competitive category and shall be considered for promotion to the next higher grade by a promotion board far enough in advance of completing the years of service in grade specified so that, if the officer is recommended for promotion, the promotion may be effective on or before the date on which the officer will complete those years of service.  The maximum years of service for promotion to the rank of LTC is 7 years.

12.  Title 10, U. S. Code, section 14514 governs special selection boards and corrections of records.  It states, in pertinent part, that an officer whose name is placed on a promotion list as a result of recommendation for promotion by a special selection board convened under this section, shall, as soon as practicable, be appointed to the next higher grade in accordance with the law and policies which would have been applicable had he or she been recommended for promotion by the board which had considered the officer.  It also states that an officer who is promoted to the next higher grade as a result of the recommendation of a special selection board convened under this section, shall, upon such promotion, have the same date of rank and effective date for pay and allowances of that grade, and the same position on the reserve Active-status list as the officer would have had if he or she had been recommended for promotion to that grade by the selection board which should have considered, or which did consider the officer.

13.  Army Regulation 135-155, table 2-1 (Time in Grade (TIG) Requirements Commissioned Officers, other than Commissioned Warrant Officers) states the minimum years in the lower grade for promotion to LTC is 4 years; the maximum years in the lower grade for promotion to LTC is 7 years.
14.  AR 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) applies to commissioned officers of the ARNG and the US Army Reserve (USAR) on the Reserve Active Status List.  It states policies concerning promotions and Federal recognition of ARNG officers within their State vacancy promotion systems will be under NGR 600-100 (i.e., AR 135-155 governs vacancy promotions only of USAR officers).  Paragraphs 2-13 and 2-14 discuss USAR troop program unit and active guard reserve, respectively, position vacancy selection boards.  Both paragraphs state one of the eligibility requirements is to have completed the minimum TIG prescribed for promotion to the next higher grade by the day before the convening date of the board.  Table 2-2 states 50 percent of the Command and General Staff Officer Course is required for promotion to LTC.

15.  National Guard Regulation (NGR) 600-100 (Commissioned Officer-Federal Recognition and Related Personnel Actions) provides procedures for processing all applications for Federal Recognition.  Paragraph 2-1 states commissioned officers of the ARNG are appointed by the several States under Article 1, Section 8 of the US 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.  

16.  NGR 600-100, paragraph 8-1 states the promotion of officers in the ARNG is a function of the State.  Paragraph 8-2a states promotion criteria will be based on efficiency, TIG, time in commissioned service (this requirement was deleted after enactment of the Reserve Officer Personnel Management Act), demonstrated command and staff ability, military and civilian education, and potential for service in the next higher grade.  Paragraph 8-2b states that, except as provided in this chapter (i.e., concerning certain Special Branch officers only), promotion will be accomplished only when an appropriate vacancy in the grade exists in the unit.

17.  NGR 600-100, paragraph 8-7 states, to be considered for Federal recognition and subsequent Reserve of the Army promotion following State promotion to fill a unit vacancy [via a Unit Vacancy Promotion Board], an ARNG commissioned officer must, in part, have completed the minimum years of promotion service indicated in paragraph 8-8.  Paragraph 8-8 states a 

commissioned officer must complete a minimum of four years of promotion service prior to being considered for promotion from MAJ to LTC.  Paragraph 8-9 states completion of 50 percent of the six-phase Command and General Staff Officer Course is required for promotion to LTC.

18.  NGR 600-100, paragraph 8-15 states an ARNG commissioned officer, not on active duty, who is selected for promotion as a Reserve commissioned officer of the Army resulting from mandatory consideration may be extended Federal Recognition in the higher grade subject to several conditions, including that the officer has reached the promotion eligibility date and that the officer is promoted in a State status to fill an appropriate position vacancy in the higher grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant completed 50% of his Command and General Staff Officer Course which qualified him educationally for promotion.  He submitted his 50% completion certificate to the NYARNG and it was received on 26 February 2004.  Apparently, the NYARNG did not process his educational achievement to AHRC-St. Louis.

2.  The applicant was considered and non-selected for promotion to LTC by the CY 2004 LTC RCSB.  He requested reconsideration based upon an incomplete record and an SSB which adjourned on 23 March 2005 selected him for promotion with an effective date and DOR of 5 April 2005.

3.  The NYARNG did not promote the applicant until 4 January 2007 and did not extend Federal Recognition until 7 February 2007.  The Chief, Personnel Division, NGB recommended that the applicant’s date of rank to LTC be adjusted to 5 April 2005 based on the Special Selection Board memorandum dated 7 October 2005.  The applicant concurred with the NGB advisory opinion.

4.  In view of the foregoing findings and conclusions, and in the interest of justice and equity, it would be appropriate to correct the applicant’s records as indicated below.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__bpi___  __tmr___  __gjp___  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 to show: 

	a.  He was promoted to the rank of LTC with an effective date and date of rank of 5 April 2005; and

	b.  He was extended Federal Recognition as an LTC on 5 April 2005.  

2.  The Board further recommends that the individual concerned be paid any pay and allowance adjustment resulting from his date of rank adjustment.

3.  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 such much of the application that pertains to adjustment of his date of rank to LTC to 5 December 2004.



							Bernard P. Ingold
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070002623
SUFFIX

RECON

DATE BOARDED
20070830
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(GRANT)
REVIEW AUTHORITY

ISSUES         1.
131.0500
2.

3.

4.

5.

6.