IN THE CASE OF:	  

	BOARD DATE:	  10 June 2008

	DOCKET NUMBER:  AR20070013058 


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, in effect, that his Major (MAJ) date of rank (DOR) be changed from 6 September 2007 to 15 April 2006.  

2.  The applicant states, in effect, that he was promoted to MAJ on 6 September 2007, which was 17 months after his promotion should have been granted.  He believes the reason he was not promoted in a more timely matter was his deployment to Iraq, and the lack of senior leadership attention to his promotion.  

3.  The applicant provides the following documents in support of his application:  United States Army Human Resources Command (ARPERSCOM) Memorandum, dated 28 June 2005; Texas Army National Guard (TXARNG) Orders Number 006-458, dated 6 January 2006; Separation Document (DD Form 214); National Guard Bureau (NGB) Special Orders Number 216 AR, dated 
6 September 2007; NGB Memoranda, dated 1 September 2004 and 
7 September 2007; Information Paper (Office Promotions Procedures), dated
8 January 2007; Office of the Assistant Secretary Manpower and Reserve Affairs (ASAMRA) Memorandum, dated 14 January 2005.  

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he was initially appointed a second lieutenant (2LT) in the United States Army Reserves (USAR) on 15 May 1992, and was Federally Recognized as a 2LT in the Army National Guard (ARNG) on 26 May 1992.  He was promoted to first lieutenant (1LT) on 29 May 1995, and to captain (CPT) on 21 February 1998.
2.  On 28 June 2005, the applicant was notified of his selection for promotion to MAJ by the Reserve Component Selection Board (RCSB) that adjourned on 
25 March 2005.  The memorandum of notification indicated that the applicant's promotion eligibility date (PED) was 14 April 2005, and that the effective date of his promotion would be one of the following:  (1) PED; (2) Date Federal Recognition is Extended in Higher Grade; or Date Following Date Federal Recognition is Terminated in Current Reserve Grade.  

3.  TXARNG Orders Number 006-048, dated 6 January 2006, ordered the applicant to active duty for deployment in support of Operation Iraqi Freedom (OIF), effective 1 February 2006, under the provisions of Title 10 of the 
United States Code (USC), Section 12302 (10 USC 12302).  

4.  The applicant served on active duty in Iraq, in support of OIF, from 18 July 2006 through 7 July 2007, and was honorably released from active duty and returned to his ARNG status on 18 July 2007, after completing 1 year, 5 months, and 18 days of active duty service during the period.  

5.  On 6 September 2007, the applicant was promoted to MAJ, and NGB Special Orders Number 216 AR, dated 6 September 2007, announced the extension of Federal Recognition to the applicant in the grade of MAJ, effective 6 September 2007.

6.  During the processing of this case, an advisory opinion was obtained from the NGB Chief, Personnel Division.  This official stated that an ASAMRA Policy Memorandum, dated 17 December 2003, Subject:  Promotion of Mobilized Reserve Component (RC) Officers on the Reserve Active Status List, announced a promotion policy for mobilized Reserve Component (RC) officers for promotion to the grades of captain through colonel.  It established, in effect, that RC officers who were deployed could be promoted without regard to assignment to a higher graded position, as an exception to policy.  This NGB Official recommended approval of the applicant's request to adjust the effective date of his promotion and DOR to MAJ to 15 April 2006, and that he provided all back pay and allowances due as a result based on his having been in a promotable status when he deployed to Iraq in support Operation Enduring Freedom (OEF).  

7.  On 11 March 2008, the applicant concurred with the advisory opinion.


8.  National Guard Regulation 600-100, paragraph 8-15 states in pertinent part that an ARNG commissioned officer, not on active duty, who is selected for promotion as a Reserve commissioned officer of the Army resulting from mandatory consideration may be extended Federal Recognition in the higher grade subject to several conditions, including that the officer has reached his or her promotion eligibility date and that the officer is promoted in a State status to fill an appropriate position vacancy in the higher grade.

9.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers, Other Than General Officers) prescribes policy and procedures used in the selection and promotion of commissioned officers of the ARNGUS and the commissioned and warrant officers of the U.S. Army Reserve (USAR).  Table 2-1 (Time in Grade Requirements for Commissioned Officers, Other Than Commissioned Warrant Officers) of this regulation outlines the service requirements for promotion and indicates that for promotion from captain to major is 7 years.  

10.  Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve officers.  This regulation specifies that an officer is promoted after selection, if all qualifications are met.  An officer selected by a mandatory promotion board that has a PED before the approval date of the board, will have a promotion effective date and date of rank no earlier than the date of a the mandatory promotion board.  Chapter 4 (Processing Selection Board Recommendations), Section III (Dates of Promotion), provides the procedures for computing promotion effective dates of all reserve component officers.  This document provides that the DOR is the date the officer meets the eligibility criteria for promotion to the next higher grade and that an officer’s PED will become their DOR upon promotion and this date will be used to establish the relative seniority for officer’s holding the same rank.  Finally, it states that the DOR will be used to establish the officer’s PED to the next higher grade.  This document further provides that only the Secretary of the Army may determine whether an adjustment must be made to an officer's date of rank and effective date of promotion.  

11.  Paragraph 4-21 (Effective dates), provides, in pertinent part, the effective date of promotion may not precede the date of the promotion memorandum.  An officer is promoted after selection if all qualifications for promotion are met.  When an officer does not meet the qualifications for promotion, the effective date of promotion will not be earlier than the later date all qualifications are met.  In no case, will the date of rank or effective date of promotion be earlier than the date the board is approved, or, if required, the date of Senate confirmation.


12.  Paragraph 4-21d provides guidance on the promotion of AGR officers.  It states that AGR officers selected by a mandatory board will be promoted provided they are assigned/attached to a position in the higher grade.  An AGR officer who is selected for promotion by a mandatory promotion board, but who is not assigned/attached to a position in the higher grade will be promoted on the date of assignment/attachment to a higher graded position or the day after release from AGR status.  The date of rank will be the date the officer attained maximum years in grade (MYIG), or the date on which assigned/attached to a position in the higher grade, whichever is earlier. 

13.  ASAMRA Policy Memorandum, dated 17 December 2003, Subject:  Promotion of Mobilized Reserve Component (RC) Officers, provided the authority to promote deployed RC officers on a promotion selection list without regard to assignment to a higher graded position as an exception to policy.  

14.  Title 10 of the United States Code, section 14304(b) and 14316(d), state that a mobilized reserve component officer who has been recommended for promotion to the grades of captain through lieutenant colonel by a mandatory promotion board and who is on an approved promotion list shall be promoted without regard to the existence of vacancy or placement against a position of a higher grade under the policy memorandum on the date on which the officer completes the maximum years of service as specified in section 14304(a), unless the officer has voluntarily delayed or declined the promotion.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DOR to MAJ should be adjusted to 15 April 2006, was carefully considered and found to have merit.  The evidence of record confirms the applicant had been selected for promotion by mandatory RCSB and was on a promotion list on the date he was ordered to active duty under the provisions of 10 USC 12302, and deployed to Iraq in support of OIF.  As a result, he was eligible to be promoted, as an exception to policy, based on the exception provisions established in a 13 December 2003 ASAMRA Memorandum.  

2.  Given the applicant was assigned to a valid State position in the higher grade and assumed that position within 180 days of his demobilization, it would be appropriate to correct his record to show he was promoted to MAJ effective and with a DOR of 15 April 2006, his PED, and to provide him all back pay and allowances due as a result.  

BOARD VOTE:

____x___  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he was promoted to and granted Federal Recognition in the rank of Major, effective 15 April 2006; and by providing him all back pay and allowances due as a result.  




       _   ___x____   ___
       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)                                         AR20070013058



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ABCMR Record of Proceedings (cont)                                         AR20070013058



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