IN THE CASE OF:	  

	BOARD DATE:	  24 June 2008

	DOCKET NUMBER:  AR20070010177 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests adjustment of his date of rank for promotion to captain (O-3) from 22 September 2005 to 23 August 2003.

2.  The applicant states, in effect, that he was deployed in support of Operation Iraqi Freedom on 48 hours notice and that he reported on 2 February 2003.  He states that he met the time in grade requirements for promotion to the grade of O-3 on 23 August 2003.  He states that his commander was not promoted to the grade of O-3 until May 2004 and that his promotion was "held up" for hers.  He states that he was transferred from Illinois to California on 1 October 2004 and that he held an O-3 slot.  He states that he met or exceeded all promotion requirements, including height and weight; that he had excellent Officer Evaluation Reports (OERs) and an excellent combat record; and that he completed three tours of duty, two of which were overseas.  He states that his orders were first issued in January 2005; however, they were crossed out by hand and his promotion was delayed until September 2005 without cause or explanation.

3.  The applicant provides in support of his application a copy of Orders 
297-1016, dated 24 October 2005; Permanent Order 287-044, dated 14 October 2005; National Guard Bureau (NGB) Special Orders Number 274 AR, dated
26 September 2005; Orders 216-1052, dated 4 August 2005; Orders 179-1080, dated 28 June 2005; Orders 136-1095, dated 16 May 2005; NGB Special Orders Number 44 AR, dated 16 February 2005; NGB Form 89 (Proceedings of a Federal Recognition Examining Board), dated 20 January 2005; Orders 308-083, 
dated 3 November 2004; his Oaths of Office, dated 29 October 2004; his Certificate of Release or Discharge from Active Duty (DD Form 214), dated 9 September 2004; Orders 064-38, dated 4 March 2004; a DA Form 638 (Recommendation for Award), dated 20 November 2003; a Narrative Recommendation for Award of the Bronze Star; a Proposed Citation for Award of the Bronze Star; Orders 032-145 dated 1 February 2003; Orders 267-037 dated 24 September 2002; a DA Form 638, dated 29 May 2002; a DA Form 638, dated 13 July 2001; NGB Special Orders Number 289 AR, dated 15 October 2001; a DA Form 1059 (Service School Academic Evaluation Report), dated 26 January 2001; NGB Special Orders Number 55 AR, dated 8 May 2000; NGB Special Order Number 218 AR, dated 18 November 1999; and DA Forms 1059 for the period from 1 June 1998 through 21 August 1999, 25 October 1997 through 25 April 1998, 4 February 2004 through 31 July 2004, 4 February 2004 through 3 February 2004, 1 October 2002 through 3 February 2003, 27 January 2002 through 30 September 2002, 27 January 2001 through 26 January 2002, and 1 August 2000 through 11 September 2000.

CONSIDERATION OF EVIDENCE:

1.  The applicant accepted an appointment as a second lieutenant (O-1) in the California Army National Guard (CAARNG) on 21 August 1999 and he was assigned to the 2668th Transportation Company.  

2.  The applicant accepted an appointment as an (O-1) in the Illinois Army National Guard (ILARNG) on 1 March 2000 and he was assigned to the 1244th Transportation Company.

3.  On 18 September 2001, Orders 261-100 were published promoting the applicant to the rank and grade of first lieutenant (O-2).  However, the orders indicate that he would not be paid as an O-2 until Federal Recognition was confirmed.  Federal recognition was confirmed on 18 September 2001.

4.  On 1 October 2002, the applicant was released from the 1244th Transportation Company and he was transferred to Headquarters and Headquarters Detachment (HHD), 733rd Water Supply Battalion.

5.  On 1 February 2003, Orders 032-145 was published directing that the applicant be involuntarily transferred to the 1244th Transportation Company for unit mobilization in support of Operation Enduring Freedom.  The available records indicate that his unit mobilized on 3 February 2003.

6.  The applicant was released from active duty on 9 September 2004 and he was transferred to the 1244th Transportation Company as a member of the ILARNG.  

7.  On 29 October 2004, the applicant accepted an appointment in the CAARNG, as a first lieutenant, and he was assigned to HHD, 540th Main Support Battalion.

8.  The Proceedings of a Federal Recognition Examining Board indicate that on 20 January 2005, the applicant was found to be qualified for Federal recognition and promotion to a position of a higher grade in the CAARNG.  Subsequent to the proceedings, it was determined that at the time the Federal Recognition Examining Board was approved, he and another Soldier were both assigned to the same captain position vacancy.

9.  The other Soldier’s name was removed from the position vacancy on 16 May 2005.  Therefore, Orders 136-1095 was erroneously published on 16 May 2005 promoting the applicant to captain with an effective date of 20 January 2005.

10.  On 26 September 2005, the NGB issued Special Orders Number 274 AR, extending Federal recognition and promoting the applicant to captain, with an effective date of 20 September 2005.

11.  On 3 March 2006 an advisory opinion was obtained from the Chief, Personnel Division, Department of the Army and the Air Force, National Guard Bureau, who opined that, the applicant was promoted based on a position vacancy promotion.  The Chief, Personnel Division stated that the promotion effective date on all position vacancy promotion systems is the date the Secretary of Defense approved and signed the promotion scroll list, not the date of the State Federal Recognition Board or the State promotion orders.  The scroll list, including the applicant’s name, was approved on 20 September 2005.  The official went on to state that the CAARNG should have sent the applicant's promotion record to the Mandatory Reserve Component Selection Board in 2004, as the officer was eligible for promotion on 18 September 2003, based on his first lieutenant date of rank of 18 September 2001; and that he met all requirements for promotion in accordance with the National Guard Regulation 600-100 to include that he was serving in a captain position at the time of his eligibility.

12.  The NGB official further stated that in accordance with the Reserve Officer Personnel Management Act, the effective date of promotion and date of rank of an officer who is promoted under the position vacancy promotion system will be the date the Chief, NGB, extends Federal recognition, based on the approved scroll list from the Secretary of Defense.  The promotion effective date is not the date of appointment into the position or the date of State Federal Recognition Board.  Scroll lists take approximately 90 to 120 days to be approved by the 
Secretary of Defense, due to it having to be processed through the following offices before it is approved by the Secretary of Defense:  Office of the Deputy Chief of Staff for Personnel, Office of The Judge Advocated General, Director of Military Personnel Management, Deputy Chief of Staff for Personnel, Assistant Secretary of the Army, Director of the Army Staff, Secretary of the Army, Office of the Secretary of Defense, General Counsel of the Department of Defense, Deputy Assistant Secretary of Defense Military Personnel Policy, Deputy Assistant Secretary of Defense Force Management Policy, and the Under Secretary of Defense Personnel and Readiness.  

13.  Based on the foregoing, the NGB, Chief, Personnel Division recommended the applicant's request be denied, due to the fact that the officer was promoted based on a position vacancy promotion and the promotion effective date is established by the Secretary of Defense, the date he approved the scroll list.

14.  On 6 March 2008, a copy of the advisory opinion was forwarded to the applicant for his information and/or possible rebuttal.  In a memorandum dated 19 March 2008 the applicant submitted a rebuttal stating, in effect, that he served in the ILARNG from March 2000 to September 2004; that on 10 January 2003, he was advised that he would be promoted upon achieving his date of rank eligibility; that he was involuntarily mobilized to deploy with his company to a platoon leader slot; that his unit departed the Continental United States (CONUS) in support of Operation Iraqi Freedom on 17 April 2003; that in August 2003, he was in the theater of operation and met all requirements for promotion; that in September 2003, the promotion was delayed because the company commander could not get promoted due to non-military occupational specialty (MOS) qualification in 88A/Transportation; that first lieutenants/platoon leaders from various National Guard and United States Army Reserve units within the 1244th Transportation Company's battalion were promoted based on open vacancy positions in their home states; that his commander was promoted in May 2004; that an overturn of personnel in the "S-1" failed to accomplish the battalion commander's directive to submit his promotion packet; and that he was released from active duty on 9 September 2004.  

15.  The applicant further stated that on 1 October 2004 he was transferred to the CAARNG as a transportation officer, which is an O-3 slot; that the promotion packet was not submitted because his military records were still in Illinois; that in October 2004 his unit mobilized for a CONUS mission at Fort Irwin; that in November 2004 he was attached to the 40th Brigade Support Battalion as the HHC commander, which is an O-3 slot and his promotion packet was not 

submitted because the 540th Main Support Battalion still had to process his promotion; that his promotion packet was submitted in late December 2004; that he was officially transferred to the 40th Brigade Support Battalion in July 2005; that his original promotion orders were issued in January 2005 and were inexplicably delayed; and that he was subsequently promoted in September 2005.  He states that he was eligible for promotion since September 2003; that he has had three successful deployments; that he met all physical requirements in accordance with National Guard Regulation 600-100; that he had all excellent and outstanding OERs; that every battalion commander endorsed his promotion; and that his peers were promoted 24 months before he was promoted.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an adjustment to his date of rank for captain to 23 August 2003.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The applicant's contention that his promotion was "held up" because his company commander was not MOS qualified for the Transportation Company has been noted.  However, there is no evidence in the available record that shows that he was qualified for promotion to captain on 23 August 2003 as he contends.

3.  The available records show that the applicant was promoted to first lieutenant on 18 September 2001.  His unit mobilized in support of Operation Enduring Freedom on 3 February 2003 and he was not released from active duty until 9 September 2004.  During the time that he was on active duty, he was not eligible for a position vacancy promotion.  Contrary to the information contained in the advisory opinion, the applicant was not eligible for promotion consideration by a Mandatory Reserve Component Selection Board because he was in an active status and he had not met the time in grade requirement for promotion to captain.

4.  On 20 January 2005, a Federal Recognition Examining Board approved his promotion to captain.  At the time that the Federal Recognition Examining Board was approved, he and another individual were both assigned to the same captain slot and the other individual's name was not removed from the slot until 16 May 2005, the day that Orders 136-1095 was erroneously published promoting him to captain, with an effective date of 20 January 2005.  Therefore, he did not officially become eligible for promotion to captain until 16 May 2005. 



5.  The applicant was not entitled to promotion to captain until he was extended Federal recognition on an approved position vacancy promotion.  The NGB issued special orders extending Federal recognition for the purpose of promotion to captain effective 20 September 2005, the date the Secretary of Defense approved and signed the promotion scroll list.  There is no indication that his promotion effective date and date of rank for captain are unjust or inequitable.  

6.  The applicant's contentions have been considered along with his combat service and OERs that he provided.  However, he could not be promoted without the benefit of an authorized position vacancy in 2003.  Since there is no authorization for promotion to the next higher grade based on promises that may have been made and/or the history of his service, he is not entitled to an adjustment to his effective date and date of rank for captain.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.



      ___        XXX                ___
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20070010177



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ABCMR Record of Proceedings (cont)                                         AR20070010177



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