RECORD OF PROCEEDINGS


	IN THE CASE OF:	 


	BOARD DATE:	  6 March 2008
	DOCKET NUMBER:  AR20070006030 


	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

Ms. Antoinette Farley

Analyst


The following members, a quorum, were present:


Mr. James B. Gunlicks

Chairperson

Mr. Donald W. Steenfott

Member

Mr. Roland S. Venable 

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, reconsideration for an adjustment of his date of rank (DOR) for captain (CPT) from 31 January 2006 to 4 March 2005 in an electronic mail (e-mail), dated 10 April 2007.

2.  The applicant states, in effect, that he received an e-mail from the Texas Army National Guard (TXARNG), dated 27 July 2005, which instructed him to sign a 22 March 2005, letter for a delay in his promotion to the grade of CPT as a Reserve of the Army and Army National Guard Officer until 4 March 2006.  The applicant contends that by the time he received the 22 March 2005 delay letter his first response period had expired.  

3.  The applicant provides copies of the Delay of Promotion letter, dated 22 March 2005; TXARNG e-mail, dated 27 July 2005; Memorandum Recommendation for Promotion of Officer, dated 5 August 2005; his e-mail to the ABCMR, dated 6 February 2007; and an excerpt from the article, Feeling Caught in an Iraq Trap, written by Hal Bernton of the Seattle Times.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060011710 on 15 March 2007. 

2.  The applicant provided a copy of a follow-up TXARNG e-mail requesting completion of his missing documents for delay of promotion packet, dated 27 July 2005 which was not previously reviewed by the ABCMR; therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The applicant is a member of the Texas Army National Guard (TXARNG) serving on active duty in Iraq.

4.  The applicant's military records show that he was appointed in the Reserve as a second lieutenant effective 1 March 1999.  Evidence of record shows that the applicant was attached to the Department of the Army, Texas Army National Guard, Headquarters, 1st Battalion, 112th Armor, Wylie, Texas, in August 2000.

5.  He was appointed in the TXARNG as a second lieutenant effective 31 August 2000.  He was promoted to first lieutenant on 4 March 2001.

6.  Promotion Memorandum, Department of the Army (DA), U.S. Army Human Resources Command, St. Louis, Missouri (HRC-St. Louis), dated 1 March 2005 notified the ARNG Personnel Center that the applicant had been selected for promotion to CPT as an officer of the ARNG by the Reserve Components Selection Board (RCSB) which adjourned on 9 November 2004.   

7.  The 14 March 2005 issue of the Army Times shows that the applicant was recommended for promotion to captain by an Army Promotion Selection Board that met in St. Louis in November 2004.

8.  A 22 March 2005 memorandum from the Texas Military Forces, Joint Forces Headquarters, Adjutant General's Department, Austin, Texas, notified the applicant that he was eligible for promotion to CPT under the provisions of the Reserve Officer Personnel Management Act (ROPMA) provided that he was assigned to a higher graded position in the unit.  The memorandum also notified the applicant that if he did not occupy a higher graded position, he had the option to delay promotion for a period of 3 years, in one year increments, from 4 March 2004 with a suspense date of 5 May 2005 for election of an option from the attached promotion memorandum.

9.  On 22 March 2005, the applicant submitted the signed Delay of Promotion memorandum as a Reserve of the Army and ARNG Officer.  The memorandum shows that under the provisions of ROPMA he elected to delay his promotion to the grade of CPT as a Reserve of the Army and ARNG Officer until 4 March 2006.  The delay could be no longer than 3 years from his promotion eligibility date (4 March 2004).  The applicant authenticated this document acknowledging he understood that by delaying the promotion, his name would be retained on the promotion list for a period not to exceed 3 years from the date he would otherwise be promoted. 

10.  This memorandum, signed by the applicant, also gave him the following options at the end of the approved period of delay:  (1) be promoted into higher grade if a higher grade position is made to; (2) if there is no higher graded position and he desired to be promoted, his Federal recognition would be withdrawn, he would be transferred to the Individual Ready Reserve and promoted, or (3) choose to decline the promotion at which time his name would be removed from the promotion list.  If at the end of the approved period of delay, the applicant did not select an option as described above, he would be removed from the promotion list, considered non-select, and ineligible for position vacancy promotion.

11.  On 5 August 2005, the applicant's unit commander (Headquarters, 1st Battalion, 112th Armor) recommended the applicant for promotion to CPT in the ARNG.   

12.  Promotion Memorandum, DA and the Air Force, National Guard Bureau, Arlington, Virginia, dated 31 January 2006, promoted the applicant to CPT effective 31 January 2006.  

13.  NGB Federal Recognition Orders Number 30 AR, dated 31 January 2006, awarded the applicant permanent Federal Recognition for initial appointment to the grade of CPT, effective 31 January 2006.

14.  Texas Military Forces Army National Guard, Austin, Texas, Orders Number 199-289, dated 18 July 2006 shows the applicant was mobilized for Operation Iraqi Freedom on 16 July 2006.

15.  In an advisory opinion, dated 3 January 2007, the Chief, Personnel Division, National Guard Bureau, recommended disapproval of the applicant's request, he signed a delay of promotion until 4 March 2006, in accordance with Army Regulation 135-155, chapter 4.  

16.  On 5 February 2007, the applicant was furnished (via e-mail) with a copy of the advisory opinion for his information and rebuttal.

17.  On 6 February 2007, the applicant responded to the advisory opinion.  He indicated that after seeing his name on a promotion list in the Army Times, he was advised to sign a delay in promotion to avoid losing his approved promotion because he had not received a copy of his promotion letter.  He contends that he did not understand that he was signing his right of promotion away, and that the ABCMR may need to seek more than one advisory opinion in order to reach the correct decision in his case.   

18.  On 27 July 2007, the TXARNG provided the applicant with an e-mail, which shows e-mail correspondence between two military administrative specialists at the TXARNG.  The 19 July 2005, e-mail essentially requests the applicant to forward missing documents for his recommendation packet and a reminder that the applicant needs to sign his delay letter.  

19.  On 26 July 2007, a military administrative specialist forwarded the same 
e-mail to the applicant informing him that he needed to complete his packet by providing his recommendation letter, signature on the delay of promotion letter, copies of his 2-1, OER's for 03-04, 04-05 and a memo stating why the OERS he submitted were not originals.  The e-mail also stated that if he had any questions call the TXARNG personnel specialist.  

20.  Army Regulation 135-155 (ARNG and U.S. Army Reserve Promotions of Commissioned Officers and Warrant Officers Other Than General Officers), chapter 4, paragraphs 4-22 and 24, state that the officers who are selected for promotion to the next higher grade may voluntarily request delay of the promotion for a period authorized in paragraph 4-24.  Delay beyond the maximum period is not authorized unless approved by the DA, Deputy Chief of Staff for Personnel (G-1).  Request for an exception will not be considered unless the area Commander or Adjutant General recommend approval.  Denial of voluntary request for delay will not be considered to be a failure of selection for promotion unless the officer declined to accept the promotion.  This paragraph does not apply to officers serving in an Active Guard Reserve status.  Unless an exception is authorized, the period of delay will not exceed one year.  The period of delay may be extended, in one year increments to a maximum of three years from the date on which the officer would otherwise be promoted. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his date of rank should be adjusted to CPT effective 4 March 2005.  The applicant further contends that by the time he received his eligibility letter for promotion its suspense date had already passed.  The applicant states that, on 27 July 2005, he was given incorrect advice concerning a delay of promotion resulting in him not being promoted to the rank of CPT until 31 January 2006 which was through no fault of his own.  

2.  The applicant's military records show that the Army National Guard was notified on 1 March 2005, that he had been selected for promotion to CPT as an officer of the ARNG by the Reserve Components Selection Board (RCSB).  

3.  On 14 March 2005, the Army Times published the applicant's name as a selectee to CPT.  

4.  On 22 March 2005, the Texas Adjutant General notified the applicant that he was eligible for promotion and gave him suspense of 5 May 2005 in order to select one of the options listed in the memorandum.  

5.  Promotion Memorandum, DA and the Air Force, National Guard Bureau, Arlington, Virginia, dated 31 January 2006, promoted the applicant to CPT, effective 31 January 2006.

6.  On 27 July 2005, e-mail from military personnel at the TXARNG provided the applicant instructions on how to provide missing documents for delay of promotion packet.  The e-mail response appears to satisfy a prior request for information.  

7.  Therefore, there is insufficient evidence to support the applicant’s contentions that he was ill-advised to submit his request for delay in promotion since the suspense date had not passed, and there was indication that a higher graded position was available.  

8.  After a review of the available records and the independent evidence submitted by the applicant, it is concluded that the applicant has again failed to prove his case by a preponderance of the evidence.  As a result, there is an insufficient evidentiary basis to support amendment of the original Board decision in this case or to grant the additional relief requested by the applicant to change his date of rank to CPT, effective 4 March 2005.  

BOARD VOTE:

_j_______  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JBG__  _DWS___  _RSV____  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 to amend the decision of the ABCMR set forth in Docket Number Docket Number AR20060011710 on 15 March 2007, or to grant his amended relief request.




     __James B. Gunlicks____
          CHAIRPERSON

INDEX

CASE ID
AR20070006030
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.