IN THE CASE OF:	  

	BOARD DATE:	  17 June 2008

	DOCKET NUMBER:  AR20070017880


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 promotion eligibility date and date of rank (DOR) to captain (CPT) from 22 March 2007 to 22 March 2006, with entitlement to back pay as a result of this correction.

2.  The applicant states that the Army Board for Correction of Military Records (ABCMR) issued a favorable decision on 22 November 2006 that changed his appointment to first lieutenant (1LT) from 19 January 2006 to 20 January 2005 and his DOR from 19 January 2005 to 20 January 2004.  His corrected DOR made his promotion eligibility to CPT a year earlier.  Therefore, he should have been promoted to CPT on 22 March 2006 instead of 22 March 2007.  He concludes that he missed an entire year's pay as a CPT, and if his record is not corrected, he would also wait a year longer for promotion to major (MAJ). 

3.  The applicant provided the following additional documentary evidence in support of his application: 

	a.  Army Board for Correction of Military Records, Record of Proceedings, dated 2 November 2006.  

	b.  National Guard Bureau (NGB) Special Orders Number 72 AR, dated
26 March 2007, extending Federal recognition for the purpose of promotion to CPT, effective 22 March 2007.

	c.  Orders 360-089, dated 26 December 2006, adjusting his DOR to 1LT and promotion eligibility date to CPT.

	d.  Memorandum, dated 26 March 2007, National Guard Bureau (NGB), promotion to CPT.

	e.  DA Form 67-9 (Officer Evaluation Report), for the period from 20061128 through 20070531. 

	f.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 19 June 2007.  

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he applied for an appointment as a 1LT in the Judge Advocate General (JAG) Corps of the Georgia Army National Guard (GAARNG) on 1 October 2004.

2.  On 20 January 2005, a Federal Recognition Board was held by the GAARNG to determine if the applicant was qualified to be awarded Federal recognition.  The proceedings indicated that the applicant was satisfactory in his physical qualifications, moral character, and general qualifications.  

3.  On 20 January 2005, the applicant was appointed as a 1LT in the GAARNG and was given an adjusted DOR to 20 January 2004 based on the award of 
1 year of constructive service credit.  He executed an Oaths of Office on the same date.

4.  On 10 February 2005, the Department of Defense, Military Division, GAARNG, Ellenwood, Georgia, published Orders 041-021, appointing the applicant as a 1LT in the JAG Corps of the GAARNG, effective 20 January 2005.

5.  On 28 July 2005, he completed the Judge Advocate Officer Basic Course

6.  There is no indication in the applicant's records that shows he was extended Federal recognition subsequent to his appointment or completion of the basic course.

7.  On 19 January 2006, a second Federal Recognition Board was held by the GAARNG to determine if the applicant was qualified to be awarded Federal recognition.  The proceedings indicated that the applicant was satisfactory in his physical qualifications, moral character, and general qualifications.
8.  On 19 January 2006, the applicant accepted an appointment as a 1LT in the GAARNG and executed an Oath of Office on the same date.  

9.  On 3 May 2006, National Guard Bureau Special Orders Number 114 AR, awarded the applicant permanent Federal recognition for initial appointment as a 1LT in the GAARNG, effective 19 January 2006, with a DOR of 19 January 2005. 

10.  On 10 May 2006, the applicant applied to the ABCMR for correction of his records to amend his 1LT DOR from 19 January 2005 to 20 January 2004 and his initial date of appointment from 19 January 2006 to 20 January 2005.

11.  On 28 October 2006, the applicant was ordered to active duty as a member of his Reserve unit in support of Operation Enduring Freedom.  He subsequently served in Afghanistan from 28 November 2006 to 24 May 2007.

12.  On 2 November 2006, the ABCMR, in response to the applicant’s petition to adjust his appointment date and DOR, recommended the applicant’s records be corrected by amending NGB Special Orders Number 114 AR, dated 3 May 2006, to show the effective date of Permanent Federal recognition in the grade of 1LT as 20 January 2005 instead of 19 January 2006 and his DOR as 20 January 2004 instead of 19 January 2005.

13.  On 15 December 2006, The Adjutant General, GAARNG, Ellenwood, Georgia, published Orders 349-017, announcing the applicant's promotion to CPT, effective 29 November 2006 and with a DOR as 29 November 2006. 

14.  On 26 December 2006, the State of Georgia, Department of Defense, Military Division, Ellenwood, Georgia Army National Guard, published Orders 360-089, amending the applicant’s promotion service date from 20 January 2005 to 20 January 2004 and his promotion eligibility date as 19 January 2006 instead of 19 January 2007.

15.  On 11 January 2007, National Guard Bureau Special Orders Number 7 AR, amended the applicant's Federal recognition for initial appointment as a 1LT in the GAARNG, from 19 January 2006 to 20 January 2005 and his DOR from 19 January 2005 to 20 January 2004, as recommended by the ABCMR.





16.  On 26 March 2007, by memorandum, National Guard Bureau, Arlington, VA, notified the applicant that he was promoted to CPT, effective 22 March 2007.  
Accordingly, on the same date, National Guard Bureau Special Orders Number 114 AR, awarded the applicant permanent Federal recognition for promotion to CPT, effective 22 March 2007.  

17.  On 19 June 2007, the applicant was honorably released from active duty and reverted back to his ARNG status.

18.  In an advisory opinion obtained in the processing of this case on 4 April 2008, the Chief, Personnel Division, National Guard Bureau, Arlington, VA, recommended disapproval of the applicant’s request because he was promoted based on a position vacancy promotion.  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 list takes approximately 90 to 120 days to be approved by the Secretary of Defense, due to it has 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.  

19.  On 9 April 2008, the applicant was furnished a copy of the advisory opinion.  He did not concur and submitted a rebuttal statement on the same date.  In his statement, the applicant stated that the mandatory time in grade for promotion from 1LT to CPT is 2 years.  He further adds that his promotion to CPT should have occurred shortly after the new eligibility date of 19 January 2006 was established, but it did not happen because the ABCMR was processing his request.  Unfortunately, because the ABCMR’s favorable decision was not issued until 2 November 2006, the Federal recognition orders were issued on 22 March 2007.  The original DOR to 1LT was incorrect, which in turn affected his DOR to CPT.  He also stated that if the correction to his CPT DOR is not accepted, it 

would be two unjust results:  denial of a whole year of CPT pay and a delay of another year for promotion to MAJ.  He concludes that if his back pay is denied, he is willing to accept a CPT DOR of 22 March 2006 or a DOR that is reasonably relative to his promotion eligibility date of 19 January 2006.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to adjustment of his promotion eligibility date and DOR to CPT from 22 March 2007 to 22 March 2006, with entitlement to back pay.

2.  The evidence of record shows the ABCMR rendered a favorable decision and the National Guard Bureau adjusted the applicant's DOR as a 1LT by 1 year.  This adjustment was completed; however, it did not make the applicant eligible for promotion consideration by a Department of the Army Mandatory Board nor for consideration for earlier promotion to the grade of CPT by a Special Selection Board. 

3.  The evidence of record further shows that The Adjutant General of the State of Georgia promoted the applicant below the zone in a unit vacancy position.  This promotion is a function of the State and is not based on selection by a Department of the Army mandatory board.  Since the unit vacancy promotion is solely the jurisdiction of the State, there is no basis to amend the applicant's DOR to CPT.

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)                                         AR20080001020



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR20070017880



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