RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  30 October 2007
	DOCKET NUMBER:  AR20070007506 


	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

x

	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 reconsideration of his earlier request to be paid the difference in pay between lieutenant colonel (LTC) and colonel (COL) from        17 February 2005 to the date he was promoted to colonel.

2.  The applicant states that in December 2002 he was selected for a COL, O-6 position as Chief of the New York City Detachment of the Selective Service System (SSS).  In October 2004, he was mobilized.  His position at the SSS would remain vacant until his return.  It was the intent of both the Secretary of the Army and the Chief of Staff of the Army that no Soldier’s promotion would be jeopardized due to mobilization.

3.  The applicant states that, in December 2005, in an effort to cut costs in the SSS, his O-6 position was downgraded to an LTC, O-5 position.  He returned from Iraq in December 2005.  On 24 February 2006, he was reassigned to the SSS.  In April 2006, he was notified that he had been selected for COL, O-6 and his date of rank (DOR) would be retroactive to 17 February 2005.  By that time, the New York Army National Guard (NYARNG) had no O-6 position, so he transferred to the U. S. Army Reserve (USAR).

4.  The applicant states that his original request was denied because the   Record of Proceedings stated he was assigned to the 42d Infantry Division from 5 October 2004 until his release from active duty and as such he never occupied a COL’s position in the NYARNG.  It is his contention that his position in the SSS was being held for him until his return from active duty.  Had he not been mobilized, he would have occupied the O-6 position on 17 February 2005.

5.  The applicant provides a Headquarters, SSS order, dated 1 December 2002; transfer orders, dated 9 December 2002; transfer orders, dated 1 October 2004; release from active duty orders; two promotion memoranda, both dated 18 April 2006; ARNG separation orders, dated 30 June 2006; promotion orders, dated     1 August 2006 with an amendment of the same date; his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending      10 January 2006; and the original Record of Proceedings.

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 AR20060012340 on 29 March 2007.

2.  The applicant accepted appointment in the ARNG on 17 August 1979.  He was promoted to LTC on 10 July 1998.

3.  The applicant provided a Headquarters, SSS order, dated 1 December 2002.  This order announced the applicant’s appointment as Commander, New York Detachment 1NZ, effective 1 December 2002.  The orders noted it was an O-6 billet in a Joint Service Command.

4.  The applicant’s Officer Evaluation Report (OER) for the period ending 30 April 2003 shows he was assigned to Detachment 1, Selective Service – New York City, as the Chief, Selective Service.  Part Vb specifically states he filled an O-6 billet.  

5.  The SSS provided the Board analyst a letter, dated 2 December 2003, from The Director of Selective Service to the Director, Army National Guard.  The letter noted that all O-6 and some O-5 ARNG billets would be eliminated from  the SSS infrastructure.  The target date for completing the reduction was           31 December 2004.  The SSS also provided a “List of ARNG Officers Affected by Re-Structuring,” dated 15 March 2004.  Only one COL from New York was identified, COL Robert G___ (not the applicant).

6.  The applicant’s OER for the period ending 30 April 2004 shows he was assigned to Detachment 1 as the Chief, Selective Service.  The OER does not specifically identify his position as an O-6 billet.  The OER was prepared on      28 February 2005.

7.  Orders dated 1 October 2004 transferred the applicant to the 42d Infantry Division for mobilization.

8.  The SSS provided the Board analyst a memorandum, dated 8 December 2004, from the State of New York, Division of Military and Naval Affairs to Headquarters, SSS.  This memorandum stated that an impending force structure change was the grade reduction of the Commander of their SSS from an O-6 authorization to an O-5 authorization.  “This change effects (sic) the Albany Selective Service Detachment and the current Commander, COL Robert G___.”

9.  The applicant was released from active duty on 10 January 2006.

10.  By memorandum dated 18 April 2006, the applicant was informed he had been selected for promotion to COL by a Standby Advisory Board under the 2004 criteria.  He would be promoted to COL with a DOR of 17 February 2005 if he was in a qualified position.  

11.  Effective 1 July 2006, the applicant separated from the ARNG and transferred to the USAR to accept promotion to COL.  

12.  U. S. Army Human Resources Command – St. Louis orders were issued promoting the applicant to COL, O-6 with an effective date and a DOR of 2 July 2006.  These orders were then amended to show his DOR as 17 February 2005.

13.  The Department of the Army Personnel Policy Guidance (PPG) provides mobilization guidance.  In pertinent part, it states a mobilized ARNG officer on an approved promotion list may be promoted immediately when appointed in the State against a vacant position of the higher grade in a federally recognized unit in the National Guard.  Under this new policy the officer serves in the higher grade while mobilized but, within 180 days of demobilizing, must then be reassigned to the higher graded position or transfer to the Individual Ready Reserve.

DISCUSSION AND CONCLUSIONS:

1.  It is acknowledged that the applicant was assigned to a COL, O-6 position as Chief of the New York City Detachment of the SSS effective 1 December 2002.  However, there is some evidence to show that the position was downgraded from O-6 well before he mobilized in October 2004.

2.  The SSS provided a letter, dated 2 December 2003, from The Director of Selective Service to the Director, Army National Guard.  The letter noted that all O-6 and some O-5 ARNG billets would be eliminated from the SSS infrastructure.  Although the target date for completing the reduction was indicated to be 31 December 2004, the “List of ARNG Officers Affected by Re-Structuring,” dated 15 March 2004, indicated that as of March 2004 only one O-6 position may have remained to be downgraded; i.e., the position filled by COL Robert G___.

3.  There is no evidence to show that the applicant’s position, at least his O-6 position, was being held for him until his return from active duty, as the decision had been in December 2003 to eliminate all O-6 positions.

4.  In addition, the applicant acknowledged that by 17 February 2005 the NYARNG had no O-6 position.  Therefore, even if he had not been deployed, it appears he could not have occupied an O-6 position on 17 February 2005.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x____  __x__  __x__  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 AR20060012340 dated 29 March 2007.




___x_____
          CHAIRPERSON




INDEX

CASE ID
AR20070007506
SUFFIX

RECON

DATE BOARDED
20071030
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
131.04
2.

3.

4.

5.

6.