RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 February 2008
      DOCKET NUMBER:  AR20070006504


      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. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Ms. Rose M. Lys                   |     |Member               |
|     |Mr. Qawiy A. Sabree               |     |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, that his date of rank (DOR) to
captain (CPT) be changed from 29 March 2007 to 1 October 2005.

2.  The applicant states, in effect, that his promotion to CPT was delayed
through no fault of his own as a result of administrative negligence on the
part of his unit in processing his promotion packet.

3.  The applicant provides the following documents in support of his
application:  Battalion Commander Letter of Support; Battalion Personnel
Officer (S-1) Letter of Support; Electronic Mail (e-mail) Messages; and
Officer Evaluation Reports (OERs).

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he was initially appointed a second
lieutenant in the Army National Guard (ARNG) and granted Federal
Recognition in that grade on 1 July 2001.  He was promoted to and granted
Federal Recognition as a first lieutenant (1LT) on 15 June 2003.

2.  On 1 October 2005, while serving in the 223rd Military Intelligence
Battalion of the California ARNG, the applicant submitted his position
vacancy promotion packet to his battalion S-1.

3.  On 18 April 2006, the applicant's position vacancy promotion packet was
reviewed by the State Military Personnel Office and the applicant was
informed his packet satisfied the regulatory criteria.  There is no
evidence suggesting this packet was boarded at the State or forwarded to
the National Guard Bureau (NGB) for processing within its established 90
day processing timeline.

4.  On 22 February 2007, the United States Army Human Resources Command
(HRC), St. Louis, Missouri, published a memorandum that indicated the
applicant had been selected for promotion to CPT by a board that adjourned
on
17 November 2006.

5.  On 29 March 2007, the applicant was promoted to and granted Federal
Recognition as a CPT.

6.  In connection with the processing of this case, an advisory opinion was
obtained from the NGB Chief, Personnel Division.  This official recommends
the applicant's CPT DOR be adjusted to 18 July 2006, which is the date he
would have been promoted had his vacancy promotion packet been properly
processed by the State in accordance with NGB unit vacancy processing
policy.  This official states the recommendation is based on the fact that
the applicant was informed by State MILPO officials that his vacancy
promotion packet satisfied the regulatory criteria on 18 April 2006, and
had his packet been boarded and forwarded to the NGB for processing on that
date, he would have likely been promoted within 90 to 120 days once the
promotion scroll list was approved after appropriate Department of the Army
reviews.

7.  On 19 November 2007, the applicant submitted a rebuttal to the NGB
advisory opinion.  He stated that he did not concur with the NGB
recommendation that his DOR be adjusted to 18 July 2006.  He argues that
his request is based on the administrative negligence of his company and
battalion in failing to submit his promotion packet on 1 October 2005, or
shortly thereafter. He claims he has filled a CPT position in the unit
since December 2004, and was eligible for promotion to CPT as of 15 June
2005, and his request has the support of his unit commander, battalion
commander and battalion S-1.

8.  The applicant provides supporting letters from his former battalion
commander and the former unit S-1.  These officers confirm the applicant
was fully qualified and recommended for a unit vacancy promotion on 1
October 2005, but the processing of his packet was delayed for completion
of an OER, which was not accomplished until on or about 7 August 2006.  The
S-1 also confirms that although the applicant was eligible for promotion as
of 15 June 2005, his promotion packet was not submitted to the battalion
from his unit until April 2006, and however, untimely, it is the company
commander's discretion on when they feel an officer is ready for promotion
to the next level.

9.  National Guard Regulation 600-100 provides the policies and procedures
governing promotion of ARNG officers other than general officers.  It
states, in pertinent part, that the promotion of ARNG officers is a
function of the State.  It further indicates that unit vacancy promotions
of qualified officers are based on the recommendations of the member's
immediate commander, properly endorsed by all commanders concerned and the
Adjutant General.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim that his CPT DOR should be adjusted was carefully
considered and found to have partial merit. By regulation, unit vacancy
promotions of qualified officers are based on the recommendation of the
member's immediate commander.

2.  The evidence of record in this case confirms that although the
applicant submitted his promotion packet on 1 October 2005, his company
commander did not formally recommend the applicant for promotion or submit
his promotion packet until April 2006.  As confirmed by the NGB advisory
opinion, had the applicant's promotion packet been submitted to them for
processing on 18 April 2006, when the applicant was informed his packet was
being processed, allowing for normal processing time, the applicant likely
would have been promoted on
18 July 2006.

3.  Although administrative negligence may have contributed to the slow
processing of the applicant's promotion packet, the intent of the company
commander to recommend the applicant for promotion in the July to October
2005 timeframe cannot be established after the fact.  Absent a company
commander recommendation submitted in this timeframe, it would not be
appropriate to adjust the applicant's CPT DOR to 1 October 2005, as he
requests.  However, it would be appropriate to correct the applicant's
record to show he was promoted to CPT on 18 July 2006, based on the fact a
valid company commander recommendation for promotion had been formally
submitted at that time.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__WDP__  __RML  _  __QAS__  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 by showing his date of rank to captain as 18 July
2006, vice 29 March 2007, as is currently listed.

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
a change of his date of rank to captain to 1 October 2005.




                                  _____William D. Powers____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20070006504                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2008/01/                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT PARTIAL                           |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]