RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 December 2007
	DOCKET NUMBER:  AR20070010029 


	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. Mohammed R. Elhaj

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, correction of her records to show that she was transferred to the Retired Reserve in the rank of lieutenant colonel
(LTC)/O-5 in lieu of major (MAJ)/O-4.

2.  The applicant states that while a member of the Michigan Army National Guard (MIARNG), she was found physically unfit and was medically retired.  However, prior to her retirement, she was selected for promotion to LTC/O-5, but was denied this promotion due to her retirement.  She further adds that her selection for promotion happened prior to the determination that she was medically unfit.  She states that there is an information paper on the disability evaluation system (PDES) which provides that, per amendment to the USC 1372 in 1996, Soldiers on a promotion list will be retired at the higher grade.  The information paper also states that, for Soldiers who entered military service after 7 September 1980, the definition of "retired pay base" results in no impact on retired pay.  Per amendment to 10 USC 1212 in 2001, Soldiers being separated for disability who are on a promotion list will receive severance pay at the promotion list grade.  Since she met all the requirements for promotion at the time of the Promotion Selection Board, she considers it an injustice to deny her promotion to LTC/O-5.

3.  The applicant provides the following documentary evidence in support of his application:

	a.  U.S. Army Human Resources Command, St. Louis, Missouri, memorandum, dated 3 August 2006, titled:  Eligibility for Promotion as a Reserve Officer Not on Active Duty;

	b.  State of Michigan, Department of Military and Veterans Affairs, Lansing, Michigan, Orders 277-006, dated 4 October 2006, assigning the applicant to the Retired Reserve;

	c.  National Guard Bureau, Special Orders Number 59AR, dated 13 March 2007, withdrawing the applicant’s Federal Recognition and transferring her to the Retired Reserve;

	d.  National Guard Bureau Form 22 (Report of Separation and Record of Service), dated 8 September 2006;

	e.  DA Form 2-1 (Personnel Qualification Record);

	f.  Information Paper, dated 28 February 2005, subject: Overview of the Physical Disability Evaluation System;

	g.  National Guard Bureau Memorandum, dated 12 December 2003, subject: Army National Guard (ARNG) Special Branches Over-Grade Policy for Commissioned Officers;

h.  Copy of certificate, dated 1 November 2003, award of the Meritorious Service Medal. 

CONSIDERATION OF EVIDENCE:

1.  The applicant was a MAJ in the Medical Services Corps in the MIARNG.  She was commissioned as a 2nd lieutenant on 14 August 1990 and was promoted to MAJ on 2 February 2001.  Her records show that she was eligible for promotion to LTC between 1 February 2004 (with 3 minimum years in the lower grade) and February 20087 (with 7 years maximum in the lower grade).

2.  On 3 August 2006, the applicant was notified by the U.S. Army Human Resources Command, St Louis, Missouri, that she was selected for promotion to LTC by the 26 May 2006 Reserve Component Selection Board (RCSB).  Her effective date of promotion would have been either of the following:

	a.  1 February 2008, or

	b.  Date Federal Recognition was extended in the higher grade, or

	c.  Date following the date Federal Recognition was terminated in current grade.

3.  State of Michigan, Office of Military and Veterans Affairs, Lansing, Michigan, Orders Number 277-006, dated 4 October 2006, show that the applicant was honorably separated from the ARNG and transferred to the Retired Reserve effective 31 August 2006, in accordance with paragraph 5a[3(c-14)] of National Guard Regulation 635-100 (Termination of Appointment and Withdrawal of Federal Recognition). 

4.  On 13 March 2007, National Guard Bureau, Arlington, Virginia, published Orders 59 AR, withdrawing the applicant’s Federal Recognition and transferring her to the U.S. Army Reserve (USAR) Retired Reserve, effective 8 September 2006.

5.  The applicant provided a copy of an Information Paper, dated 28 February 2005, that gives an overview of the Physical Disability Evaluation System (PDES).  The applicant highlighted one paragraph that states “Per amendment to 10 U.S. Code 1372 in 1996, Soldiers who are on a promotion list will be retired at the higher grade.  However, for Soldiers who entered the military after 7 September 1980, the definition of retired pay base results in no impact on retired pay.  Per amendment to 10 USC 1212 in 2001, Soldiers being separated for disability who are on a promotion list will receive severance pay at the promotion list grade since its formula is based on the basic pay of the applicable grade.”

6.  The applicant also provided a copy of the National Guard Bureau memorandum, dated 12 December 2003, describing the ARNG Special Branches Over-Grade Policy for commissioned officers.

7.  The applicant submitted a copy of a certificate, dated 1 November 2006, showing she was awarded the Meritorious Service Medal for exceptionally meritorious conduct in the performance of her duties at the MIARNG Joint Forces Headquarters.  

8.  National Guard Regulation 635-100 prescribes the policies, criteria, and procedures governing the separation of commissioned officers of the Army of the National Guard.  An officer may tender his or her resignation through channels to the State Adjutant General.  If accepted, the State Adjutant General will publish orders separating the officer from his/her Army National Guard appointment.   Chapter 5 describes the criteria for termination of state appointment.  Paragraph 5a(14) states, in pertinent part, that unless contrary to State law and regulation, the appointment of an ARNG officer may be terminated when the officer becomes medically disqualified for further military service as described in National Guard Regulation 635-101. 

9.  National Guard Regulation 635-101 (Efficiency and Physical Fitness Boards) prescribes the criteria and procedures for determining the capacity and general fitness of commissioned and warrant officers for continued Federal Recognition in the Army National Guard.  In pertinent parts, it provides that Federal Recognition should be withdrawn from an officer for incapacity when, for example, he/she shows a downward trend in overall performance, shows a failure to exercise necessary leadership or command required of an officer of his/her grade, or fails to discharge assignments in a manner to be expected of an officer of his/her grade and experience.  If the area commander determines that sufficient basis exists to initiate action for withdrawal of Federal Recognition, the officer must be notified and offered the opportunity to show cause for retention before a board of officers; submit a resignation in lieu of withdrawal of Federal Recognition; or elect transfer to the Retired Service [emphasis added].  If the officer does not respond, a board of officers must be appointed to proceed in the absence of the officer.

10.  Army Regulation 140-10 (Assignments, Attachments, Details and Transfers), covers policy and procedures for assigning and transferring USAR Soldiers.  This regulation does not require processing through a physical evaluation board for the separation of a USAR officer not on active duty.  Once it is determined by competent medical authority that an officer does not meet the medical retention standards, the officer is subject to involuntary separation or transfer to the Retired Reserve.  In pertinent part, it states that transfer to the Retired Reserve is authorized in a number of circumstances, but an eligible Soldier must request transfer.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was selected for promotion to LTC by the 26 May 2006 RCSB.  She was scheduled for promotion on either 1 February 2008, or on a date Federal Recognition was to be extended in the higher grade or terminated in the lower grade.

2.  The applicant's assertion that the provisions of 10 USC §1372 apply in her case is not persuasive.  That cite addresses Regular Army Soldiers and Reserve component Soldiers on active duty.  The applicant was not on active duty.

3.  The applicant was never promoted, nor did she ever serve in the grade of LTC prior to her transfer to the Retired Reserve.  Absent evidence to show that she performed the duties of an LTC/O-5 or was promoted by the MIARNG, there is no basis to grant the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__kan___  __rml___  __eem___  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.




							Kathleen A. Newman
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070010029
SUFFIX

RECON

DATE BOARDED
20071206
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
131.0900
2.

3.

4.

5.

6.