IN THE CASE OF:	  

	BOARD DATE:	  22 May 2008

	DOCKET NUMBER:  AR20070013057


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 correction of his date of rank (DOR) to captain (CPT) from 23 November 2006 to 1 April 2005 and restoration of back pay and allowances as a result of this correction.

2.  The applicant states that he was selected for promotion to CPT by the November 2004 Mandatory Promotion Board and attained the maximum time in grade (TIG) as a first lieutenant (1LT) on 1 April 2005.  He further adds that the Washington Army National Guard (WAARNG) was not aware of the guidance communicated by the Deputy Assistant Secretary of the Army regarding promotion of 1LTs at their maximum promotion eligibility date.

3.  The applicant provides a copy of a Human Resources Command (HRC)-St. Louis, Missouri, memorandum, dated 1 March 2005 in support of his application:

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service and after graduating from the ARNG Officer Candidate School in August 1997, the applicant was appointed and commissioned as a 2LT in the Quartermaster Corps of Active Guard/Reserve (AGR) program of the WAARNG on 2 April 1998.  He completed the Quartermaster Officer Basic Course on 22 October 1998 and was subsequently assigned to Headquarters and Headquarters Company, 181st Support Battalion, Seattle, Washington. 
2.  On 10 April 2000, by memorandum, National Guard Bureau, Arlington, VA, notified the applicant that he was selected for promotion to 1LT, effective 2 April 2000.  Subsequently, National Guard Bureau Special Orders Number 43 AR, dated 10 April 2000, extended the applicant Federal recognition for promotion to 1LT, effective 2 April 2000.

3.  On 8 April 2004, by memorandum, HRC-St. Louis, MO, notified the applicant that he was considered for promotion by the 2003 Reserve Component Selection Board (RCSB), but not selected for promotion to CPT. 

4.  On 27 May 2004, the applicant was ordered to active duty as a member of his Reserve unit in support of Operation Iraqi Freedom and subsequently served in Iraq from 22 August 2004 to 9 March 2005.  He was honorably released from active duty and reverted back to his ARNG AGR status on 25 March 2005.

5.  On 1 March 2005, by memorandum, HRC-St. Louis, MO, notified the applicant of his selection for promotion to CPT under the provisions of Army Regulation 135-155 by the 2004 RCSB that convened on 2 November 2004, adjourned on 19 November 2004, and was approved on 14 February 2005, with a promotion eligibility date of 1 April 2005.  This memorandum also informed him that the effective date of promotion would be either of the following dates:

      a.  1 April 2005; or  

	b.  date Federal recognition is extended in the higher grade; or   

	c.  date following the date Federal recognition is terminated in the current grade. 

6.  On 4 August 2006, a DA Form 268 (Report to Suspend Favorable Actions) was initiated against the applicant for adverse action.  The applicant's records do not reveal that this flag was lifted or removed.

7.  On 3 October 2006, the applicant submitted a letter of resignation from the AGR program of the ARNG and subsequent transfer to the USAR Control Group (Reinforcement).  

8.  On 5 October 2006, Headquarters, Military Department, WAARNG, Tacoma, Washington, issued a letter of instruction approving the applicant’s release from active duty (REFRAD), effective 23 November 2006. Subsequently, the applicant was issued separation orders, releasing him from active duty and assigning him to the USAR Control Group (Reinforcement), effective 23 November 2006. 
9.  On 6 March 2007, HRC-St. Louis, MO, published Orders B-03-701891, announcing the applicant’s promotion to CPT with an effective date and a DOR of 23 November 2006 (the date he was transferred to the USAR Control Group). 

10. An advisory opinion was obtained in the processing of this case on 21 March 2008.  The Chief, Personnel Division, National Guard Bureau, Arlington, VA, recommended the applicant’s effective date of promotion remains the same, but his DOR be adjusted to 1 April 2005.  The applicant reached his maximum TIG on 1 April 2005.  

11.  Memorandum, Department of the Army, Office of the Deputy Chief of Staff, G-1, dated 10 March 2005, stated that officers recommended for promotion by mandatory promotion boards will be promoted on the date they attain maximum TIG or upon assignment to a higher grade unit position, whichever is sooner, unless they are in a promotion delay status or flagged.  This action is necessary to ensure all officers are promoted by their maximum time in grade as required by Title 10, U.S. Code, section 14304.

12.  Memorandum, Office of the Assistant Secretary for Manpower and Reserve Affairs, dated 28 February 2006, states that Title 10, U.S. Code, section 14304, requires that USAR officers selected for promotion be promoted at their maximum promotion eligibility date, without regard to assignment to a higher grade vacancy.  It also states that effective immediately, promotable 1LTs in the Selective Reserve who are unable to find a geographically available position of a higher grade will be promoted at their maximum promotion eligibility date and will not be required to transfer to the Individual Ready Reserve.

13.  Memorandum, National Guard Bureau, Personnel Readiness and Policy Division, dated 6 April 2006, states that a 1LT who is selected for promotion to CPT by a Department of the Army, Mandatory promotion Board, will be promoted upon reaching his/her maximum TIG, unless action is taken prior to the officer reaching maximum TIG to prevent this promotion.  Additionally, a 1LT who reaches maximum TIG will be promoted without regard to the grade or position he/she occupies.  It also states that in an effort to cut down on the number of obligated officers transferring to the Individual Ready Reserve (IRR) this memorandum also precludes the involuntary transfer of officers to the IRR in order to accept promotion.  Consequently, if a State intends to not promote an officer upon reaching maximum TIG, an action to either flag the officer (if applicable), involuntarily delay the officer’s promotion, separate the officer or remove the officer from a promotion list must be initiated prior to the officer reaching maximum TIG.  

14.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for the promotion of Reserve warrant officers.  Paragraph 4-15b of this regulation states that the effective date of promotion for commissioned officers may not proceed the date on which the promotion memorandum is issued.  The promotion memorandum cannot be issued before the date the promotion board results are approved and confirmed by the Senate (if required).  In addition, the officer must already be assigned/attached to a position in the higher grade or, if an IRR/IMA officer selected by a mandatory promotion board, have completed the maximum years of service in grade in the current grade. 

15.  Table 2-1 of Army Regulation 135-155 states that the minimum years in the lower grade for promotion from 1LT to CPT is 2 years and the maximum years in the lower grade is 5 years. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to correction of his DOR to CPT from 23 November 2006 to 1 April 2005 and restoration of back pay and allowances as a result of this correction.

2.  The applicant was promoted to 1LT on 2 April 2000.  He reached his maximum TIG on 1 April 2005.  He was selected for promotion to CPT by the 2004 mandatory selection board.  Therefore, he is entitled to correction of his record to show his DOR to CPT as 1 April 2005.  

3.  With respect to the effective date of promotion and restoration of back pay, the guidance provided by the Office of the Deputy Chief of Staff, G-1, regarding the promotion of Reserve officers on a promotion list resulting from a mandatory board on the date they attain maximum TIG, was dated 10 February 2005; whereas the same guidance provided by the USAR and the NGB were dated 10 February 2006 and 28 February 2006 respectively.

4.  It is unclear why the USAR and the NGB did not institute or implement this guidance until February 2006.  Nevertheless, there is no evidence in the available records and the applicant did not provide any substantiating evidence that shows he was fully qualified for promotion to CPT upon reaching his maximum TIG.  However, if the applicant can provide such evidence of entitlement to back pay and benefits (valid APFT and security clearance, if necessary), he may reapply to this Board for further consideration. 


5.  In view of the facts there is insufficient evidence to support backdating the applicant's effective date for promotion to CPT to coincide with the date he reached his maximum TIG or to show entitlement to back pay and allowances.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__xxx___  __xxx___  __xxx___  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 adjusting the applicant's DOR to CPT from 23 November 2006 to 1 April 2005.

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 the applicant's effective date for promotion to CPT and/or restoration of back pay and allowances. 



							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)                                         AR20080004820



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR20070013057



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
ARLINGTON, VA  22202-4508