IN THE CASE OF:	  

	BOARD DATE:	  5 June 2008 

	DOCKET NUMBER:  AR20070013698 


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, to be reinstated into the New Jersey Army National Guard, promoted to lieutenant colonel, retired as such, and granted unpaid back pay and allowances due as a result of this correction. 

2.  The applicant states, in effect, that a Department of the Army Standby Advisory Board recommended him for promotion to lieutenant colonel with a date of rank of 29 May 1998.  He received orders dated 11 June 2007, promoting him to lieutenant colonel with an effective date and date of rank of 2 December 1998. When he inquired as to why the date were different he was informed by the Office of Promotions, Reserve Components, St. Louis, Missouri, that the New Jersey Army National Guard would have to recind his retirement orders and reinstate him into the New Jersey Army National Guard.  When he met with the personnel and legal officers of the New Jersey Army National Guard, they informed him that could not help him and advised him to apply to this Board.   

3.  The applicant provides copies of orders transferring him to the Retired Reserve, Federal Claims Motion, Promotion Consideration Memoranda, and promotion orders.

CONSIDERATION OF EVIDENCE:

1.  Orders, State of New Jersey, dated 20 November 1998, transferred the applicant to the Retired Reserve in the rank of major effective 1 December 1998. 

2.  On 25 September 2006 the applicant’s records were considered by a Department of the Army Standby Advisory Board for promotion to lieutenant colonel using the promotion criteria for 1997.  It recommended that the applicant be promoted to lieutenant colonel with a date of rank of 29 May 1998.

3.  On 25 April 2007, the Military Personnel Technician, Office of Promotions, Reserve Components, wrote a memorandum for the Commander, State of New Jersey Department of Military and Veteran Affairs, informing the commander that the applicant had been recommended for promotion to lieutenant colonel under the 1997 promotion criteria.  The memorandum recommended that the applicant’s transfer to the Retired Reserve be voided.  

4.  On 11 June 2007, in a letter to the applicant, the Chief of Promotions and Notifications Branch, Office of Promotions, Reserve Components, wrote to inform him that he had been selected for promotion to lieutenant colonel, and included a copy of his promotion orders dated 11 June 2007.

5.  Orders B-06-704179, United States Army Human Resources Command, dated 11 June 2007, promoted the applicant to the rank of lieutenant colonel in the United States Army Reserve with an effective date and date of rank of 
2 December 1998.

6.  In the processing of this case, an advisory opinion was obtained from the chief, Personnel Division, National Guard Bureau, Arlington, Virginia, dated 
10 March 2008.  It recommended, based on the applicant’s selection for lieutenant colonel under the 1997 promotion criteria, that his transfer to the Retired Reserve be revoked.  It further recommended approval of his request to be reinstated in the New Jersey Army National Guard effective 29 May 1998; promotion to lieutenant colonel effective 29 May 1998; correction of his Retirement Point Accounting system (RPAS) to show his service from 29 May 1998 to 10 August 2006; retirement effective 10 August 2006 as a lieutenant colonel; and that the Defense Finance and Accounting Service recalculate his annuity based on these corrections and pay him any back pay and allowance that may be due.

7.  On 20 March 2008, the applicant concurred with the advisory opinion, adding that his records should be considered by a Standby Advisory Board for promotion to colonel under the 2002 year criteria. 



8.  Army Regulation 135-155, chapter 3, states that promotion reconsideration by a standby advisory board may only be based on erroneous non-consideration or material error which existed in the record at the time of consideration.  Material error in the context or error such a nature that in judgment of the reviewing official, it caused the Soldier’s non-selection by a promotion board and, that such error(s) have been corrected at the time the Soldier was considered, a reasonable change would have resulted that the Soldier would have been recommended for promotion.  The regulation also states that the boards are not required to divulge the proceedings or the reason for non-selection, except where the Soldier is not qualified due to non-completion of required military school.

9.  Title 10, United States Code, section 14502 (e)(2) states that an officer who is promoted to the next higher grade as the result of the recommendation of a Special Selection Board convened under this section shall, upon promotion, have the same date of rank, the same effective date for the pay and allowances of that grade, and the same position on the Reserve active status list as the officer would have had if the officer had been recommended for promotion to that grade by the selection board which should have considered, or which did consider, the officer.

DISCUSSION AND CONCLUSIONS:

1.  The evidence clearly shows that the applicant was transferred to the Retired Reserve as a major effective 1 December 1998.  However, his was subsequently selected under the 1997 promotion criteria for and retroactively promoted to lieutenant colonel with a date of rank of 29 May 1998.

2.  Therefore, his records should be corrected to void his transfer to the Retired Reserve, promote him to lieutenant colonel, pay him any unpaid pay and allowances due him as a result of this correction, correct his RPAS to add his additional service, and to submit his records for consideration by a Standby Advisory Board for promotion consideration to colonel for any and all years that he may be eligible.  









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 the New Jersey Army National Guard records and the Department of the Army records of the individual concerned be corrected, as appropriate, by:

	a.  voiding his transfer to the Retired Reserve effective 1 December 1998;

	b.  promoting him to lieutenant colonel with a date of rank and effective date of 29 May 1998;

	c.  paying him any back pay and allowances that may be due him as a result of this correction;
	
	d.  correcting his RPAS to reflect his service as a result of this correction; and

	e.  submitting his records to a Standby Advisory Board for promotion consideration to colonel based on this correction.



	_________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)                                         AR20070015723



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ABCMR Record of Proceedings (cont)                                         AR20070013698



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