IN THE CASE OF:
BOARD DATE: 7 August 2008
DOCKET NUMBER: AR20070017170
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, adjustment to his date of rank for captain.
2. The applicant states, in effect, that he was selected for promotion in October 2004 and should have been promoted in November 2004 while serving in Iraq. The S-4 position was vacant and available; however, he was told that there were no vacancies within the battalion. He was given a position in May 2005.
3. The applicant provides copies of his Certificate of Release or Discharge from Active Duty (DD Form 214) for the period ending 1 May 2005; self-authored memorandum, dated 11 October 2007; National Guard Bureau (NGB) Special Orders Number 209 AR, dated 14 July 2005; and Orders 124-1008, CAARNG, dated 4 May 2005.
CONSIDERATION OF EVIDENCE:
1. The applicant's military records show he was appointed in the CAARNG, as a second lieutenant, effective 22 August 1998. He was promoted to first lieutenant effective 22 August 2000 and to captain effective 5 July 2005.
2. On 15 November 2003, the applicant was ordered to active duty in support of Operation Iraqi Freedom.
3. On 30 January 2004, the Director, ARNG, NGB, established promotion policy for mobilized ARNG officers for promotion to the grade of captain through colonel. This policy applied to all ARNG officers who had been selected for promotion by a mandatory promotion board. These officers may be promoted immediately when appointed in the State against a position of the higher grade the officer will occupy upon demobilization. This memorandum did not preclude mobilized officers from voluntarily delaying or declining promotion under the provisions of Army Regulation 135-155. When a mobilized officer is promoted against a position in the State, the officer must be assigned to the position immediately following demobilization and release from active duty. If within 180 days following demobilization an officer declined or was unwilling or unable to occupy the position against which the officer was promoted, or was unable to occupy any other position of the higher grade for which he/she was qualified, then the officer shall be transferred immediately to the IRR. Mobilized officers who reach MTIG and have neither delayed nor declined their promotion would be promoted whether or not assigned against a position of the higher grade.
4. NGB, Personnel Readiness and Policy Division memorandum, dated
1 September 2004, states that ARNG officers recommended for promotion to the grades of captain through lieutenant colonel mobilized under the provisions of Title 10, United States Code, sections 12301(a), 12302 and 12304 and who are on an approved mandatory selection board promotion list who reach their maximum time in grade, will be promoted without regard to a position vacancy unless that officer has voluntarily delayed or declined the promotion.
5. Records show that the applicant was selected for promotion to captain by the 2004 Captain Reserve Components Selection Board which convened on
2 November 2004 and recessed on 9 November 2004. The results of this selection board were approved on 14 February 2005.
6. On 1 May 2005, the applicant was released from active duty and transferred to 1st Battalion, 185th Armored Regiment, CAARNG. He had completed 1 year, 5 months, and 17 days of creditable active duty during this period of service.
7. Orders 124-1008, CAARNG, dated 4 May 2005, assigned the applicant for duty as the Battalion Logistics Officer (S4) [a captain position], effective 3 May 2005.
8. Orders 186-1146, CAARNG, dated 5 July 2005, promoted the applicant to captain with a date of rank of 5 July 2005 and an effective date to be announced on his Federal Recognition Order.
9. NGB Special Orders Number 209 AR, dated 14 July 2005, announced the applicant's extension of Federal recognition effective 14 July 2005 for the purpose of promotion to captain.
10. In an advisory opinion, dated 14 April 2008, the Chief, Personnel Division, Departments of the Army and the Air Force, NGB, reiterated the applicant's request and statements. It recommended that the applicant's promotion effective date remain as 14 July 2005 but that his date of rank for captain be changed to 22 August 2004.
11. The advisory opinion was forwarded to the applicant for acknowledgement and/or rebuttal on 21 April 2008 and he concurred on 25 April 2008.
12. Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve and ARNG officers. This regulation specifies that completion of 5 years mandatory time in grade (MTIG) as a first lieutenant is required before promotion to captain. Troop program unit officers selected for promotion by a mandatory board must be assigned to a unit and serving in a position requiring the higher grade or assigned to the IRR or as an Individual Mobilization Augmentee (IMA) officer. This regulation further provides that the date of rank and effective date of promotion following an involuntary delay can not be earlier than the approval date of the board that selected the officer.
DISCUSSION AND CONCLUSIONS:
Notwithstanding the advisory opinion, the available evidence clearly shows that the applicant's mandatory promotion selection board for captain was not approved until 14 February 2005. Therefore, his date of rank for captain should be changed to 14 February 2005.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
___X ___ ___X____ ___X____ 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 showing his date of rank for captain as 14 February 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 changing his date of rank for captain to 22 August 2004.
__________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.
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