RECORD OF PROCEEDINGS


	IN THE CASE OF:	   


	BOARD DATE:	  06 MAY 2008
	DOCKET NUMBER:  AR20080000443 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



Member
	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).



THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his promotion eligibility date (PEB) and date of rank to Lieutenant colonel (LTC) be amended from 13 September 2006 to 
15 April 2006, in order to be fairly considered for promotion to the next higher grade.

2.  The applicant states that a series of administrative and clerical errors due to no fault of his own resulted in a 5 month delay in submitting his vacancy promotion packet for Federal Recognition consideration.  He states this injustice can be corrected by amending his PEB from 13 September 2006 to 15 April 2006.

3.  The applicant provides a copy of a memorandum from the Michigan Army National Guard Joint Force Headquarters dated 11 October 2007; memorandum for record dated 4 October 2007; memorandum from the Commanding General, 177th Military Police Brigade dated 25 September 2007; National Guard Bureau (NBG) Permanent Federal Recognition Special Orders Number 236 AR dated  
15 September 2006; State of Michigan, Department of Military and Veterans Affairs Order Number 194-066 dated 13 July 2006 with Federal Recognition Examining Board Proceedings; and the State of Michigan, Department of Military and Veterans Affairs Order Number 110-018 dated 20 April 2006 with Federal Recognition Examining Board proceedings.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant’s military personnel record shows he was appointed in the Reserve as a second lieutenant effective 21 July 1986.  He was appointed in the Army National Guard of the State of Michigan as a first lieutenant effective  
18 May 1990, and promoted to major effective 3 May 2000.

3.  His personnel record shows he was ordered to active duty in support of Operation Enduring Freedom.  He served a tour of duty in Cuba during the period 10 August 2003 to 30 May 2004.  He was honorably released from active duty and transferred to Headquarters and Headquarters Company (HHC),  
177th Military Police Brigade, on 22 June 2004.  

4.  The memorandum from the Michigan Army National Guard Joint Force Headquarters, requests the applicant's PEB be amended because the delay in his promotion was as a result of administrative errors through no fault of his own and also, because his promotion packet was boarded incorrectly on 19 April 2006.

5.  State of Michigan, Department of Military and Veterans Affairs Order Number 110-018 dated 20 April 2006 shows that the applicant was promoted to LTC effective 19 April 2006.

6.  His personnel record shows he was considered and selected for promotion to a position vacancy in the rank of LTC by the Federal Recognition Board, which convened on 13 July 2006.  The Secretary of Defense approved the board results and the applicant was promoted effective 13 September 2006.

7.  Department of Military and Veterans Affairs Order Number 110-018 dated  
20 April 2006, was revoked by Orders Number 284-047 dated 11 October 2007.

8.  In the processing of this case, an advisory opinion was obtained from the NGB dated 26 December 2007.  NGB recommends that the ABCMR deny the applicant's request to amend his effective date of promotion and date of rank since his promotion was based on a position vacancy position.  The recommendation further states that his promotion effective date is the date the Secretary of Defense approved and signed the promotion scroll list.  The Reserve Officer Personnel Management Act states that the effective date of promotion and date of rank for an officer who is promoted under the position vacancy promotion system will be the date the Chief, NBG extends Federal Recognition, based on the approved list date from the Secretary of Defense.  Promotion effective date is not the date of appointment into the position, nor is the date of the Federal Recognition State Board.

9.  The applicant was provided a copy of the opinion on 9 January 2008 for comments, but no response was received.

10.  Army Regulation 135-155, Promotion of Commissioned Officers and Warrant Officers other than General officers, requires the mandatory consideration of United States Army Reserve commissioned officers for promotion to the next higher grade at specified times in their careers as determined by the officer's years in grade and years of commissioned service.  While promotion consideration is mandatory, selection for promotion is contingent on an officer meeting promotion eligibility requirements and whether he or she has successfully participated in Reserve training.  Mandatory promotion consideration to LTC occurs at 7 years time in grade as a major.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his PEB and date of rank to LTC be amended from 13 September 2006 to 15 April 2006, in order to be fairly considered for promotion to the next higher grade.

2.  The evidence shows the State of Michigan Federal Recognition Board convened on 20 April 2006 to select the applicant for a promotion vacancy position, which was later proved to be incorrectly processed.  Those orders were revoked on 11 October 2007.  Another Federal Recognition Board was convened on 13 July 2006, which resulted in the applicant being granted Federal Recognition.

3.  On 15 September 2006, the NGB Special Orders Number 236 AR granted Federal recognition to the applicant effective 13 September 2006 for the purpose of promotion to LTC.  Regardless of the delay in the processing of the promotion packet, the promotion effective date is not the date of appointment into the position, nor is the date of the Federal Recognition State Board.  The promotion effective date is the date the Secretary of Defense approved and signed the promotion scroll list.

4.  It is noted that the applicant was selected for promotion by a unit vacancy board prior to the date of his mandatory promotion consideration date.

5.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X____  __X____  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.




      _________X_____________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080000443



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