RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 December 2007
	DOCKET NUMBER:  AR20070004848 


	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. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Ms. Kathleen A. Newman

Chairperson

Ms. Rose M. Lys

Member

Mr. Edward E. Montgomery

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, payment of all back pay and allowances resulting from the correction to the effective date of his promotion to the rank of major (MAJ)/pay grade O-4.

2.  The applicant states, in effect, that he was selected for promotion to MAJ by the 2006 U.S. Army Reserve (USAR) Major Special Selection Board and advised by the Office of Promotions, Reserve Components, to submit an application to the Army Board for Correction of Military Records (ABCMR).  He also states, in effect, that the ABCMR convened and corrected his date of rank (DOR) from
29 July 2004 to 17 July 2003; however, since he is now serving in the Army National Guard (ARNG), the issue of his back pay could not be addressed by the U.S. Army Human Resources Command (USA HRC), St. Louis, Missouri.  The applicant further states that he served in Iraq from 28 March 2003 to 3 March 2004 and his back pay during that period may be subject to the combat zone tax exclusion.  

3.  The applicant provides copies of a Headquarters, USA HRC, Office of Promotions, Reserve Components, St. Louis, Missouri, memorandum, dated
22 September 2006; Headquarters, USA HRC, Office of Promotions, Reserve Components, St. Louis, Missouri, memorandum, dated 7 August 2003, subject: Promotion as a Reserve Commissioned Officer of the Army (AR 135-155); Headquarters, U.S. Army Special Operations Command, Fort Bragg, North Carolina, memorandum, dated 2 November 2004, subject: Promotion as a Reserve Commissioned Officer of the Army (AR 135-155); and DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 28 April 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military service records show that he enlisted in the USAR for a period of 8 years on 15 November 1986.  On 1 November 1988, the applicant executed a U.S. Army Senior Reserve Officers’ Training Corps Student Contract. On 20 May 1990, the applicant was appointed as a Reserve commissioned officer of the Army in the rank of second lieutenant (2LT)/pay grade O-2 and assigned to the infantry.  He was promoted to the rank of first lieutenant (1LT)/ pay grade O-2, effective 30 May 1993, and subsequently promoted to the rank of captain (CPT)/pay grade O-3 with a DOR of 25 June 1998.


2.  On 10 July 2001, the applicant applied to the ABCMR for adjustment of his DOR to CPT (from 25 June 1998 to 17 April 1997) based on the Reserve Officer Personnel Management Act (ROPMA), enacted 1 October 1996, that, in pertinent part, effected a change in the criteria for the maximum years in grade (MYIG) for promotion to CPT.  On 9 August 2001, the ABCMR, in ROPMA Project - Phase 1 (Green), approved adjustment of the applicant’s DOR for promotion to CPT to
1 October 1997, with entitlement to back pay and allowances.

3.  On 23 October 2002, the applicant submitted a second application pertaining to adjustment of his DOR to CPT based on the fact that he was assigned to a captain’s position, effective 7 March 1997.  On 3 July 2003, the ABCMR (in Docket Number AR2003083736) amended its previous decision and approved adjustment of the applicant’s DOR for promotion to CPT to 7 March 1997, with entitlement to back pay and allowances.

4.  The applicant's military service records contain a “Corrected Copy” of Headquarters, USA Special Operations Command, Fort Bragg, North Carolina, memorandum, dated 21 October 2003, subject: Promotion as a Reserve Commissioned Officer of the Army (AR 135-155).  This document shows that the applicant was promoted to the grade of CPT/O-3, effective 7 March 1997.

5.  The applicant's military service records contain a copy of Headquarters, USA HRC, Office of Promotions, Reserve Components, St. Louis, Missouri, memorandum, dated 7 August 2003, subject:  Promotion as a Reserve Commissioned Officer of the Army (AR 135-155).  This document shows that the applicant was promoted to the grade of MAJ/O-4, effective 17 July 2003.
	
6.  The applicant's military service records contain a copy of Headquarters, USA Special Operations Command, Fort Bragg, North Carolina, memorandum, dated 2 November 2004, subject: Promotion as a Reserve Commissioned Officer of the Army (AR 135-155).  This document shows that the applicant was promoted to the grade of MAJ/O-4, effective 29 July 2004.

7.  The applicant's military service records contain a copy of Headquarters, USA Civil Affairs and Psychological Operations Command, Fort Bragg, North Carolina, Orders 05-299-00013, dated 26 October 2005.  These orders show that the applicant’s membership in the USAR was terminated on 31 July 2005 and that he entered the Army National Guard (ARNG), effective 1 August 2005.  At the time, the applicant was serving in the grade of MAJ/O-4.


8.  The applicant's military service records contain a copy of Headquarters,
USA HRC, AHRC-MSL-N, St. Louis, Missouri, Orders B-09-607116, dated
21 September 2006.  These orders show that the applicant was promoted to the grade of rank of MAJ (O-4), effective and with a DOR of 17 July 2003.  The Additional Instructions of these orders state “Special Board: 2006SS04R Adjourned On: 26 Mar 2006.”  The applicant's military service records also contain a copy of Headquarters, USA HRC, AHRC-MSL-N, St. Louis, Missouri, Orders B-09-607116R, dated 21 September 2006.  These orders revoked Headquarters, USA HRC, St. Louis, Missouri, Orders B-09-607116, dated
21 September 2006, citing Section 14308, Title 10, United States Code, as the authority.

9.  The applicant's military service records contain a copy of Headquarters, USA HRC, Office of Promotions, Reserve Components, St. Louis, Missouri, memorandum, dated 22 September 2006.  This document shows the applicant’s records were considered by a Department of the Army Special Selection Board. This document states, in pertinent part, “[y]our promotion order is enclosed” and…”[s]ince you are now a National Guard officer you will have to do a form DD 149 for the Army board of corrections of military records (ABCMR) requesting pack (sic) pay.  Since we are unable to update your state headquarters will have to update your current grade and date of rank.”

10.  In support of his application the applicant also provides, in pertinent part, a copy of his DD Form 214, with an effective date of 28 April 2004, that shows he was ordered to active duty on 25 January 2003 in support of Operation Enduring Freedom and that he served in Iraq from 28 March 2003 to 3 March 2004.  This document also shows that he was honorably released from active duty on
28 April 2004, in the grade of rank of CPT/O-3, based upon completion of required active service.  This document further shows that the applicant completed 1 year, 3 months, and 4 days net active service this period; was credited with completing 1 year, 4 months, and 11 days prior active service; and 11 years, 3 months, and 24 days total prior active service.

11.  In connection with the processing of this case, the Board requested and received an advisory opinion from the Chief, Personnel Division (Appeals and Analysis Section), Headquarters, National Guard Bureau, Arlington, Virginia.  The Chief, Personnel Division, NGB, returned the request without action due to the fact that the approved correction of adjustment to the applicant’s DOR for MAJ occurred while he was assigned to the USAR.

12.  The applicant's military service records are absent orders announcing Federal recognition of the applicant’s promotion to the grade of rank of MAJ.
13.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers, Other Than General Officers) prescribes policy and procedures used in the selection and promotion of commissioned officers of the Army National Guard of the United States (ARNGUS) and the commissioned and warrant officers of the U.S. Army Reserve (USAR).  Table 2-1 (Time in Grade Requirements for Commissioned Officers, Other Than Commissioned Warrant Officers) of this regulation outlines the service requirements for promotion and indicates that for promotion to MAJ the maximum years in the lower grade is 7 years.

14.  Army Regulation 135-155, paragraph 4-21 (Effective dates), provides, in pertinent part, the effective date of promotion may not precede the date of the promotion memorandum.  An officer is promoted after selection if all qualifications for promotion are met.  When an officer does not meet the qualifications for promotion, the effective date of promotion will not be earlier than the latter date all qualifications are met.  In no case, will the date of rank or effective date of promotion be earlier than the date the board is approved, or, if required, the date of Senate confirmation.

15.  Title 10 of the United States Code, Subtitle E (Reserve Components), Part III (Promotion and Retention of Officers on the Reserve Active Status List), Chapter 1405 (Promotions), section 14308, states, in pertinent part, that the date of rank of an officer appointed to a higher grade under this section may be adjusted in the same manner as an adjustment may be made under section 741(d)(4) of this title.  This section also provides, in pertinent part, that the effective date of a promotion of a Reserve commissioned officer of the Army or the Air Force who is extended Federal recognition in the next higher grade in the ARNG or the Air National Guard under section 307 or 310 of Title 32 shall be the date on which such Federal recognition in that grade is so extended.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that he should receive the appropriate adjustments to his pay and allowances based on the correction that was made to his DOR for promotion to MAJ (i.e., from 29 July 2004 to 17 July 2003).

2.  The evidence of record shows that the applicant’s date of promotion to the grade of rank of CPT was corrected by the ABCMR on 3 July 2003.  This action resulted in the applicant’s DOR to CPT being corrected to 7 March 1997, which was promulgated on 1 March 2004.


3.  The evidence of record shows that on 2 November 2004, Headquarters, USA Special Operations Command, Fort Bragg, North Carolina, announced the applicant’s promotion to the grade of rank of MAJ/O-4, effective and with a DOR of 29 July 2004.

4.  The evidence of record shows that, based on an application submitted by the applicant, his records were considered by the 2006 Department of the Army Special Selection Board that adjourned on 26 March 2006.  The evidence of record indicates that, as a result of the review, the applicant’s promotion to the grade of rank of MAJ was announced, effective and with a DOR of 17 July 2003.

5.  The evidence of record also shows that, based on the fact that the applicant was (both then and now) a member of the ARNG, the orders announcing the applicant’s promotion to MAJ were revoked and he was instructed to make application to the ABCMR requesting back pay for his promotion to MAJ.

6.  Based on the evidence of record, it appears the applicant’s promotion to the grade of rank of MAJ/O-4 was properly determined to have been effective and with a DOR of 17 July 2003.  Therefore, in view of the foregoing, the applicant is entitled to all pay and allowances due as a result of his promotion to the grade of rank of MAJ/O-4, effective 17 July 2003.

BOARD VOTE:

___KAN__  ___RML_  __EEM     GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

     a.  showing he was promoted to the grade of rank of major/pay grade O-4, effective and with a date of rank of 17 July 2003; and

     b.  announcing Federal recognition of the applicant’s promotion to MAJ/O-4, that was effective with a DOR of 17 July 2003.

2.  As a result, the Defense Finance and Accounting Service (DFAS) shall be notified of the Board's determination and remit payment of all back pay (i.e., pay and allowances, less any withholdings and/or deductions) that may be due as a result of this correction.  In addition, the DFAS shall be notified to consider the applicant’s service in Iraq (i.e., from 17 July 2003 to 3 March 2004) and the provisions of law regarding the combat zone tax exclusion with respect to the corresponding portion of the applicant’s back pay affected by this correction of his records.




	___ Kathleen A. Newman ___
          		CHAIRPERSON




INDEX

CASE ID
AR20070004848
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/12/06
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.

2.

3.

4.

5.

6.