RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	27 March 2008  
	DOCKET NUMBER:  AR20070003571


	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. Luis Almodova

Senior Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Ms. LaVerne M. Douglas

Member

Ms. Jeanette R. McCants

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, adjustment to his promotion effective date and date of rank for captain from 30 December 2005 to 1 August 2004, with entitlement to back pay.

2.  The applicant states, in effect, that his promotion to captain was not processed by the State of Texas in a timely manner.  He also states that he was recommended for promotion to fill the Battalion S3 Air position, which became vacant when the officer holding that position resigned his commission on 11 May 2004.  A DA Form 4187 (Personnel Action) was simultaneously submitted to promote him under the unit vacancy fill provisions.  After the DA Form 4187 was submitted, he was told he would have to wait until the Vacancy Fill Promotion Board meeting in August 2004.  On 11 August 2004, he was informed that his unit vacancy fill promotion was denied because the position was still occupied.  The officer's resignation letter was submitted on 18 May 2004 and he was still in the position 90 days after he submitted his resignation.

3.  The applicant further states, in effect, that he was involuntarily transferred from the 4th Battalion, 112th Armor to the 3rd Battalion, 112th Armor and mobilized for Operation Iraqi Freedom (OIF) on orders, dated 23 July 2004.  He was advised that since he was no longer a member of the 4th Battalion, 112th Armor, he was no longer eligible to be promoted based on the position he was assigned to in the 4th Battalion, 112th Armor.  He believes, in effect, that the paperwork removing the other officer from the position he had requested to fill was not processed in a timely manner and he was denied promotion.  He was involuntarily transferred from the 4th Battalion, 112th Armor before that officer was removed from the position.  Further, he believes both of the issues which resulted in his not being promoted were not within his control or those of his chain of command and he and his chain of command took all of the required actions needed to process his promotion in a timely manner.

4.  In support of his request, the applicant provided copies of his DA Forms 4187, his active duty orders, his reassignment orders, and his promotions orders for captain.

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's military record shows that he was appointed in the Texas Army National Guard (TXARNG), Armor Branch, as a second lieutenant, effective 1 May 1999.  He was promoted to first lieutenant effective 1 August 2004.

3.  In a DA From 4187, dated 11 May 2004, the applicant's unit commander submitted a request for the resignation of the officer whom the applicant would replace.  The DA Form 4187 was addressed to The Adjutant General of Texas (TAG) for action.  On 18 May 2004, the officer to whom the DA Form 4187 pertained submitted a memorandum for record, requesting resignation from the ARNG and as a Reserve of the Army, effective the same date.

4.  In a DA Form 4187, dated 25 June 2004, the applicant's unit commander submitted a recommendation to assign him to the position being vacated by the officer who had submitted his resignation and who was at the time assigned to the position he would fill.

5.  Orders 204-544, dated 22 July 2004, show the applicant was ordered to active duty in support of OIF for a period of 545 days.  He entered active duty on 15 August 2004.

6.  On 23 July 2004, the TXARNG issued Orders 205-1007 transferring the applicant from a platoon leader position in the 4th Battalion, 112th Armor, to an executive officer position with the 3rd Battalion, 112th Armor, with an effective date of 1 July 2004.

7.  On 31 August 2005, the TXARNG issued Orders 243-1056, reassigning the applicant from an executive officer position to a commander's position, with an effective date of 1 July 2005.

8.  On 25 October 2005, a Federal Recognition Examining Board considered and approved the applicant for promotion to captain, in the duty position of commander, with the 3rd Battalion, 112th Armor.  The board list was approved on 27 October 2005.

9.  On 3 January 2006, the National Guard Bureau issued Special Orders Number 1 AR, extending Federal Recognition and promoting the applicant to captain, with an effective date and date of rank of 30 December 2005.

10.  On 3 January 2006, the National Guard Bureau issued a promotion memorandum promoting the applicant to captain with a promotion effective date and date of rank of 30 December 2005.

11.  The applicant was released from active duty, in the rank of first lieutenant, on 6 January 2006 and he was transferred to the 3rd Battalion, 112th Armor.

12.  The applicant was honorably separated by reason of resignation, from the TXARNG, in the rank of captain, with an effective date of 31 May 2007.

13.  In an advisory opinion, dated 3 August 2007, the Chief, Personnel Division, Departments of the Army and the Air Force, National Guard Bureau, reiterated the applicant's request and statements.  The National Guard Bureau official stated that the applicant completed his bachelor degree on 15 May 1999 and the Armor Officer Basic Course on 4 May 2000.  He was promoted to first lieutenant on 1 August 2002.  The applicant provided a copy of the memorandum, dated 18 May 2004, from the officer who resigned his commission effective 18 May 2004, as proof, and a copy of a DA Form 4187 related to this action.  On 25 June 2004, the battalion personnel office sent a memorandum to the State military personnel office requesting that the applicant be promoted to captain based on a position vacancy promotion.  State Orders Number 204-544 were published for the applicant to be activated in support of OIF effective 15 August 2004, for a period of 545 days.  Another State order was published transferring the applicant to a commander's position with an effective date of 1 July 2005.

14.  The National Guard Bureau official also stated, in effect, that the Proceedings of a Federal Recognition Examining Board were approved on
27 October 2005, for the applicant to be promoted to captain, based on a position vacancy promotion.  State Orders Number 305-1048 was published for his promotion to captain with an effective date of 27 October 2005.  Federal Recognition Special Orders 

Number 1 AR was published for his promotion to captain with an effective date of 30 December 2005.  On 2 February 2005, Human Resources Command, St. Louis, Missouri, sent a memorandum referencing the applicant's eligibility for promotion to captain with an effective date of 31 July 2007.

15.  The National Guard Bureau official further stated that in accordance with the Reserve Officer Personnel Management Act, the effective date of promotion and date of rank of an officer who is promoted under the position vacancy promotion system will be the date the Chief, National Guard Bureau, extends Federal Recognition, based on the approved scroll list from the Secretary of Defense.  The promotion effective date is not the date of appointment into the position or the date of the State Federal Recognition Board.  Scroll lists take approximately 90 to 120 days to be approved by the Secretary of Defense, due to having to be processed through the following offices before they are approved by the Secretary of Defense:  Office of the Deputy Chief of Staff for Personnel, Office of The Judge Advocated General, the Director of Military Personnel Management, the Deputy Chief of Staff for Personnel, the Assistant Secretary of the Army, the Director of the Army Staff, the Secretary of the Army, the Office of the Secretary of Defense, the General Counsel of the Department of Defense, the Deputy Assistant Secretary of Defense Military Personnel Policy, the Deputy Assistant Secretary of Defense Force Management Policy, and the Under Secretary of Defense Personnel and Readiness.

16.  Based on the foregoing, the National Guard Bureau, Personnel Division recommended the applicant's request be denied, due to the officer having been promoted based on a position vacancy promotion.  The promotion effective date they noted was established by the Secretary of Defense and reflects the date he approved the scroll list.

17.  The advisory opinion was forwarded to the applicant for his acknowledgement and/or rebuttal on 8 August 2007.  He did not respond.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an adjustment to his date of rank for captain to 1 August 2004.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The applicant contends that the TXARNG did not process his promotion in a timely manner.  However, the evidence shows the applicant's name was 

submitted for a possible unit vacancy promotion, based on the resignation of another officer.  The applicant also contends that his unit vacancy promotion was denied in August 2004.  However, it appears that prior to any processing for his promotion, it was determined a position vacancy did not exist for the applicant to fill in order for him to be promoted at that time.

3.  The evidence shows that the applicant entered active duty effective 15 August 2004.  The TXARNG issued orders reassigning the applicant to a commander's position with an effective date of 1 July 2005.  On 25 October 2005, a Federal Recognition Examining Board approved his promotion to captain in the 3rd Battalion, 112th Armor, based on a position vacancy.  The National Guard Bureau issued Federal Recognition orders recognizing him as a captain with an effective date of 30 December 2005.  The applicant was released from active duty on 6 January 2006 and returned to the 3rd Battalion, 112th Armor, and was promoted to captain.

4.  The applicant was not entitled to promotion to captain until he was extended Federal Recognition on an approved position vacancy promotion.  His name was placed on a promotion list and the list was not approved until 27 October 2005. There is no indication that his promotion effective date and date of rank for captain was administratively delayed, unjust, or inequitable.  

5.  The applicant could not be promoted without the benefit of an authorized position vacancy.  Since there is no authorization for promotion to the next higher grade based on filling a position vacancy, when none existed, the applicant is not entitled to an adjustment to his date of rank for captain, as if he was promoted by an early Federal Recognition Examining Board.  He was appropriately promoted to captain based on his recommendation by the Federal Recognition Examining Board that convened on 25 October 2005.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___LD___  ___JM___  ___J____  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.




_____John T. Meixell_____
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.