RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:       7 June 2007
      DOCKET NUMBER:  AR20070003277


      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.

|     |Mr. Gerard W. Schwartz            |     |Acting Director      |
|     |Mr. Luis Almodova                 |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Ms. Carmen Duncan                 |     |Chairperson          |
|     |Mr.  Michael J. Flynn             |     |Member               |
|     |Mr. Jeffrey C. Redmann            |     |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, promotion to major with an effective
date and date of rank of 1 March 2003.

2.  The applicant states that his promotion packet for Federal recognition
was sent back without any action due to the expiration of his deferred
promotion selection.  He was selected for promotion to major in 2003.  At
that time, he was on active duty and had to decline acceptance because his
unit did not have any vacant major slots.  He was released from active duty
on 5 February 2005.  Upon his release from active duty, he actively sought
a major's position.  He received a major's position in October 2005 and had
to submit updated paperwork to get his Federal recognition paperwork sent
to the National Guard Bureau (NGB).  According to his unit administrator,
the requested information was not in his records.

3.  The applicant also states he received his Personnel Qualification
Record (PQR) in 2005 and several items had not been updated.  He had a lot
of difficulty getting the Army physical examination updated.  He called the
Soldier Readiness Center (SRC) in January 2006 and spoke to someone that
was able to find a copy of his physical examination.  In February 2006, he
was advised that his physical was not complete because he needed a DD Form
2807-1 also.  The SRC at Fort Bragg did not keep copies of the DD Form 2807-
1 and it was suggested that he take the next available slot to get another
physical examination scheduled for April 2006.  He was selected for
promotion in 2003 and would have been a major if he had not been called to
active duty.  He has fallen behind his peers who were the same rank.  He
has been working in assignments that required a field grade officer.  He
served one year as the Personnel Officer Manager and is currently the
Executive Officer for the 217th Personnel Service Battalion, another major
slot.  He has suffered a great deal of stress over this situation.  He
hopes that the board will not only grant his approval for promotion, but
also give him the time in grade that has been taken from him years ago
involuntarily.

4.  The applicant provides copies of his active duty orders, an eligibility
for promotion memorandum to the NGB, an eligibility for promotion
memorandum from the North Carolina Army National Guard (NCARNG), his delay
of promotion request, his delay of promotion approval, his DA Form 705
(Army Physical Fitness Test (APFT) Scorecard), a memorandum from the
Assistant Secretary of the Army (Manpower and Reserve Affairs (MR&RA)), his
DD Form 280B (Report of Medical Examination), his DA Form 5500-R (Body Fat
Content Worksheet (Male)), his DA Form 7349 (Initial Medical Review –
Annual Medical Certificate), a memorandum from the Director, NGB, his
reassignment orders, a recommendation for promotion to major memorandum,
his PQR, his promotion orders, a request for Federal Recognition
memorandum, memorandums from the NGB Federal Recognition Section, and a
letter from the Army Board for Correction of Military Records (ABCMR), in
support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was appointed in the NCARNG,
as a second lieutenant, effective 11 August 1990, with prior enlisted
service.  He was promoted to first lieutenant effective 10 August 1993 and
to captain effective 2 March 1996.

2.  The applicant was mobilized in support of Operation Enduring Freedom
and entered on active duty effective 11 February 2003.

3.  On 7 August 2003, the Human Resources Command (HRC) [formerly the Total
Army Personnel Command], St. Louis, Missouri, issued the NGB a memorandum,
Subject:  Eligibility for Promotion as a Reserve Commissioned Officer Not
on Active Duty, dated 7 August 2003.  The memorandum advised that the
applicant had been selected for promotion to major by a board that convened
on 4 April 2003.  The memorandum advised that the effective date of the
promotion would be either of the following dates:  1 March 2003 (his
promotion eligibility date (PED)); or the date Federal Recognition was
extended in the higher grade; or the date following the date Federal
Recognition was terminated in the current Reserve grade.

4.  On 9 September 2003, the Chief, Plans & Actions Branch, Department of
Crime Control and Public Safety, Office of The Adjutant General, NCARNG,
issued the applicant a memorandum, Subject:  Eligibility for Promotion as a
Reserve Commissioned Officer Not on Active Duty.  The memorandum advised of
the promotion and three alternatives which the applicant could request for
consideration:  a.  the applicant could request to be selected for a
vacancy and accept promotion with continued assignment to the NCARNG, or b.
 request delay of promotion with continued assignment to the NCARNG in the
present grade, or c.  transfer to the United States Army Reserve to accept
promotion.  If there was no appropriate position vacancy, the first
alternative could not be selected.  If alternative c was elected, his
Federal recognition in the NCARNG would be withdrawn effective the date of
his election or the day prior to the PED shown on the promotion
correspondence, whichever was later.

5.  On 9 September 2003, the applicant elected a delay of promotion to the
grade of major for three years from his PED.  The applicant acknowledged
that he could be promoted at any time during the approved period of delay.
He further acknowledged that at anytime during the period of delay or at
the end of the approved period of delay, he could choose one of the
following options:  a.  be promoted into the higher grade if a higher
graded position was made available to him; or b.  if there was no higher
graded position and he desired to be promoted, his Federal recognition
would be withdrawn, and he would be transferred to the Individual Ready
Reserve (IRR) and promoted; or c.  if he chose to decline the promotion his
name would be removed from the promotion list, he would be considered to
have been not selected for promotion, and if this was his first non-
selection, his records would appear before the next mandatory board for his
competitive category.  At the end of the approved period of delay, should
he not selected an option, he would be removed from the promotion list,
considered a non-select, and be ineligible for position vacancy promotion,
and could be considered by the next mandatory board for his competitive
category.

6.  The applicant's submits a copy of his DA Form 705, dated 7 October
2003, which shows he passed the APTF.

7.  On 17 December 2003, the Assistant Secretary (M&RA) established
promotion policy for mobilized Reserve Component Officers for promotion to
the grade of captain through colonel.  This policy applied to all Reserve
Component commissioned officers (IRR and Selected Reserve) on the Reserve
Active Status List.  The policy provided an exception to Army Regulation
135-155, paragraph
4-9a, which required troop program unit (TPU) officers selected by a
mandatory promotion board be assigned or attached to a Reserve position
requiring the higher grade.  A mobilized officer covered by this policy
who had been recommended for promotion may be promoted immediately when
matched against a vacant position of the higher grade.  An officer
promoted under this policy should be assigned to that position against
which the officer was matched or appointed within 180 days after
demobilization.  If an officer, upon demobilization, declined or was
unwilling or unable to occupy the position against which the officer was
matched or appointed, then the officer, whether a member of the United
States Army Reserve (USAR) or ARNG, shall be transferred immediately to
the IRR if the officer was not assigned to some higher graded Reserve
Component position within 180 days after demobilization.  Any proposed
guidance to implement this policy memorandum would be issued by the
Commander, Army Reserve; or the Director, ARNG; must be coordinated with
the Deputy Chief of Staff, G1; and approved by the Assistant Secretary of
the Army (M&RA).  The policy did not allow for retroactive promotion of
mobilized TPU officers prior to 17 December 2003.

8.  On 18 December 2003, the applicant's request for a delay of promotion
to major was approved for three years with an expiration date of 1 March
2006.

9.  On 30 January 2004, the Director, ARNG, NGB, established promotion
policy for mobilized ARNG officers to the grade of captain through colonel.
 This policy applied to all ARNG officers who had been selected for
promotion by a mandatory promotion board.  These officers could be promoted
immediately when appointed in the State against a position of the higher
grade the officer would occupy upon demobilization.  This memorandum did
not preclude mobilized officers from voluntarily delaying or declining
promotion under the promotion of Army Regulation 135-155.  When a mobilized
officer was promoted against a position in the state, the officer was
required to be assigned to the position immediately following
demobilization and released from active duty.  If, within 180 days
following demobilization, an officer declined or was unwilling or unable to
occupy the position against which he was promoted, or was unable to occupy
any other position of the higher grade for which he/she was qualified, then
the officer was to be transferred immediately to the IRR.  Mobilized
officers who reached their MTIG and had neither delayed nor declined their
promotion would be promoted whether or not assigned against a position of
the higher grade.

10.  The applicant submits a copy of his DD Form 280B, dated 6 December
2004, that shows he was found medically qualified for service.

11.  The applicant was released from active duty effective 5 February 2005
and transferred to a NCARNG unit.

12.  Orders Number 277-857, dated 4 October 2005, were issued transferring
the applicant to the Personnel Management Officer vacancy position
effective 1 October 2005.

13.  The applicant further submits a copy of his DA Form 5500-R, DA Form
7349, dated 2 February 2006 showing he was in compliance with Army
standards for body fat content.  He also submits a copy of his DA Form
7349.

14.  On 4 February 2006, the Commander, NCARNG, Joint Forces Headquarters,
North Carolina, J1-Personnel, Raleigh, recommended the applicant for
promotion based on assignment to the Education Officer position with an
authorized grade of major.  The commander verified that the applicant met
all qualifications for promotion.

15.  Orders Number 075-918, dated 16 March 2006, was issued promoting the
applicant to major with a date of rank and effective date of 15 March 2006.

16.  The applicant further submits a copy of his PQR, dated 16 March 2006
in support of his request.

17.  On 16 March 2006, the Joint Forces Headquarters, NCARNG, forwarded a
memorandum to the NGB requesting Federal Recognition to date from 16 March
2006, be extended to the applicant with assignment as the Education
Officer.

18.  On 29 March 2006, the Supervisor, Federal Recognition Section, NGB,
returned the applicant's promotion packet to the NCARNG without action
because the applicant's delay letter expired on 1 March 2006.

19.  On 11 October 2006, the ABCMR returned the applicant's request to
change the effective date of his Federal Recognition for major without
action.  The ABCMR advised the applicant he had not exhausted all
administrative remedies available to him.

20.  On 30 November 2006, the Supervisor, Federal Recognition Section, NGB,
advised the NCARNG, Office of TAG, that the applicant's promotion was
returned on 29 March 2006 because the officer's three year delay had
expired.  The next course of action was to have the applicant considered by
the 2007 Reserve Components Selection Board.

21.  In the processing of this case, an advisory opinion was requested of
the Department of the Army and Air Force, National Guard Bureau, Chief
Personnel Division, Arlington, Virginia.

22.  In an advisory opinion provided by that office, dated 2 March 2007,
the Chief, Personnel Division, reiterated the applicant's request and
statements.

23.  After having reviewed the evidence and available regulatory guidance,
the NGB, Personnel Division, recommended the applicant be promoted to
major effective 30 January 2004, due to the fact this was the date the
ARNG Director approved the memorandum for promotion of mobilized ARNG
officers who were selected for promotion by a DA mandatory promotion
board.  In addition, the evidence shows the applicant had exceeded the
time in grade required for promotion to major in accordance with Army
Regulation 135-155, National Guard Regulation 600-100, and the Reserve
Officer Personnel Management Act.

24.  The advisory opinion was forwarded to the applicant for
acknowledgement and/or rebuttal on 9 March 2007 and he did not respond.

25.  Army Regulation 135-155 prescribes the policies and procedures for
the promotion of Reserve and ARNG officers.  This regulation specifies
that completion of 7 years MTIG as a major is required before promotion
to lieutenant colonel.  Officers assigned to a unit must be serving in a
position requiring the higher grade or assigned to the IRR or as an
Individual Mobilization Augmentee (IMA) officer.  The regulation also
specifies that an officer who is selected for promotion to the next
higher grade may voluntarily request a delay of promotion to a maximum of
three years from the date on which the officer would otherwise be
promotion.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is entitled to
adjustment to his promotion effective date and date of rank for major to
30 January 2004, with entitlement to back pay and allowances.

2.  The applicant was selected for promotion to major by the 2003 mandatory
promotion board with a PED of 1 March 2003 or the date of assignment to a
higher graded position.  He was mobilized to active duty effective 11
February 2003.  While mobilized he elected to sign a delay of promotion due
to the fact his unit did not have any vacancy major positions available.
His delay was approved for three years from 1 March 2003 to 1 March 2006.
On 30 January 2004, the Director, ARNG, established promotion policy for
mobilized ARNG officers.  The memorandum did not preclude mobilized
officers from voluntarily delaying or declining promotion under the
provisions of Army Regulation 135-155.

3.  The applicant was release from active duty effective 5 February 2005.
He was assigned to a major's position effective 15 March 2006.  On 16 March
2006, it was requested the applicant be extended Federal Recognition and
promoted to major effective 16 March 2006.  The NGB returned the request
without action based on the fact the applicant's delay of promotion had
expired on 1 March 2006.  Therefore, he was not eligible for promotion on
his PED.

4.  Based the established promotion policy for mobilized ARNG that allowed
for officers who reached the maximum time in grade to be promoted whether
or not assigned against a position of the higher grade, it is reasonable to
assume that the applicant would not have elected to delay the promotion
while mobilized.  The applicant was eligible for promotion to major on 30
January 2004, under this policy.  Therefore, it is concluded that based on
a matter of equity and on the support for favorable consideration expressed
by the NGB, Personnel Division, the applicant should be granted relief as
recommended.

5.  In view of the foregoing, the applicant’s NCARNG and Department of the
Army records should be corrected as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__MJF__  __CD____  ___JCR_  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 the State of North Carolina Army National Guard and
Department of the Army records of the individual concerned be corrected by
showing he was promoted to major with a promotion effective date and date
of rank of 30 January 2004, with entitlement to back pay and allowances
based on these adjustments.

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
promotion to major with an effective date and date of rank of 1 March 2003.





                                  ____Carmen Duncan_______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20070607                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT PARTIAL                           |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.05                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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