IN THE CASE OF:	  

		BOARD DATE:	  30 December 2008

		DOCKET NUMBER:  AR20080005532


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, revocation of his transfer to the Retired Reserve, transfer to the United States Army Reserve (USAR) Control Group (Individual Ready Reserve (IRR)), and promotion to major to be effective the date of his transfer to the IRR.

2.  The applicant states, in effect, that it was his intent and expectation to be transferred to a USAR Control Group status.  He had also anticipated promotion to major in the IRR and continuation of performing duty and earning retirement points.  He also states, in effect, that in a memorandum, dated 6 April 2005, he submitted his resignation from the Pennsylvania Army National Guard (PAARNG) and transfer to the IRR in an active status.  He learned in January 2007 when he received his retirement orders that something was wrong.  He was overseas and returned in May 2007.  He completed the documentation for transfer from the Retired Reserve and was transferred in November 2007.  He learned later that he will have to wait another year to be promoted under the transfer regulations.

3.  In support of his application, the applicant provides a copy of a U.S. Total Army Personnel Command Memorandum, Subject:  Eligibility  for Promotion as a Reserve Commissioned Officer Not on Active Duty, dated 7 August 2003; a copy of the memorandum he submitted to the State Adjutant General, PAARNG, Subject:  Delay of Promotion a Reserve of the Army and Army National Guard Officer, dated 15 September 2003; a copy of the memorandum he submitted to the Commander 213th Area Support Group, Allentown, Pennsylvania, Subject:  Resignation from the 

Army National Guard and Transfer to the U.S. Army Reserve Control Group, dated 6 April 2005; a copy of a memorandum, Subject Verification of Turn-in of Individual Clothing / Equipment, dated 20 April 2005; copy of his NGB (National Guard Bureau) Form 22 (Report of Separation and Record of Service), with an effective date of 30 April 2005; and a copy of Orders 255-1028, Commonwealth of Pennsylvania, Department of Military and Veterans Affairs, Annville, dated 12 September 2005, which separate him from the Army National Guard and transfer him to the Retired Reserve.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was appointed in the PAARNG, as a second lieutenant, effective 4 June 1988.  He was promoted to captain effective 26 February 1997.

2.  The applicant was considered and selected for promotion to major by the 2003 Reserve Components Selection Board (RCSB) which was recessed on 4 April 2003. The board results were approved on 17 July 2003.

3.  On 7 August 2003, the U.S. Total Army Personnel Command prepared and distributed a Memorandum, Subject:  Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty, announcing the applicant's selection for promotion to major by the 2003 RCSB.  The memorandum also established that  the applicant's effective date of promotion would be either of the following dates:  (a) the officer's promotion eligibility date (PED), (b) the date Federal Recognition was extended in the higher grade, or  (c) the date following the date Federal Recognition was terminated in the current Reserve grade. 

4.  The applicant's PED for major, based on the required completion of 7 years maximum time in grade, was 25 February 2004.

5.  On 15 September 2003, the applicant elected a delay of promotion to major until 24 February 2007 (3 years).  He acknowledged that at the end of the approved period of delay, he must choose one of the following options:  choose to be promoted into the higher grade if a higher graded position is made available to him; or, if there is no higher graded position and he desires to be promoted, his Federal Recognition would be withdrawn and he would be transferred to the IRR and promoted; or, choose to decline the promotion at which time his name would be removed from the promotion list.

6.  On 6 April 2005, the applicant submitted his resignation from the PAARNG and requested that he be transferred to the USAR Control Group (Annual Training (AT)). On 20 April 2005, he submitted his verification that he had returned clothing and equipment to the PAARNG.

7.  The applicant's Federal Recognition was withdrawn and he was honorably separated from the PAARNG, as a captain, effective 30 April 2005, by Orders 255-1028, Commonwealth of Pennsylvania, Department of Military and Veterans Affairs, Annville.  He was transferred the USAR Control Group (Retired).

8.  An advisory opinion was requested in conjunction with the processing of this case from the Departments of the Army and the Air Force, National Guard Bureau. An advisory opinion was provided on 2 June 2008.  In this advisory opinion, the Chief, Personnel Division, reiterated the applicant’s request and stated that in accordance with National Guard Regulation 635-100, paragraph 5(3)(a), an officer may tender a resignation through channels to the State Adjutant General (TAG).  If accepted, the TAG will publish orders separating the officer from the ARNG appointment and furnish copies to the Chief, NGB.  The resignation may also be concurrent from the ARNG and the USAR for officers without a remaining service obligation.

9.  The Chief, Personnel Division, recommended the applicant's state discharge Order 255-1028 be revoked; that he be issued a corrected discharge order placing him in the IRR, effective 30 April 2005; and that he be promoted to major effective the date of his transfer to the IRR.  An additional recommendation was made that the applicant receives all back pay and allowances as a result of this adjustment.  The recommendation was based on the Soldier's request, which clearly stated his intent to be transferred to the IRR.

10.  The advisory opinion was provided to the applicant for acknowledgement and/or rebuttal on 9 June 2008.  The applicant concurred on 13 June 2008.

11.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) prescribes the policies and procedures for promotion of Reserve and ARNG officers.  This regulation specifies that ARNG officers will be considered for promotion by mandatory promotion boards and promotion to major requires completion of 7 years maximum time in grade as a captain.  The regulation also specifies that an officer may request a delay of promotion and a voluntary promotion delay may be granted for up to 3 years.  It specifies that if an officer accepts a promotion prior to the expiration of a voluntary delay of promotion, the effective date will be the date of acceptance and extension of Federal Recognition.

12.  This same regulation also specifies that at the end of an approved period of delay, an ARNG officer must choose to be promoted in the higher grade if a higher graded position is made available.  If there is no higher grade position and the officer wants to be promoted, his/her Federal recognition will be withdrawn and they will be transferred to the IRR and promoted on the date after transfer to a non-unit status.  If they choose to decline the promotion they will be removed from the promotion list.  Officers who transfer from ARNG status to a Reserve unit status at the expiration of an approved period delay are promoted effective the date of the transfer.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was recommended for promotion to major by the 2003 RCSB and he elected to decline the promotion until 24 February 2007.

2.  On 6 April 2005, the applicant submitted his resignation from the PAARNG and requested transfer to the USAR Control Group (Annual Training).  He was separated from the PAARNG effective 30 April 2005 and transferred to the Retired Reserve.

3.  It appears the applicant’s resignation and request for transfer to the USAR Control Group (Annual Training) was incorrectly acted upon by the PAARNG.  Had the applicant been transferred to the IRR on 30 April 2005, he would have been eligible for promotion to major on the date after his transfer, 1 May 2005.

4.  Based on equity considerations and on the recommendation for favorable consideration expressed by the Chief, Personnel Division, National Guard Bureau, the applicant should be granted the relief he now requests; therefore, it would be appropriate to amend Orders Number 255-1028, to show that on the date of his resignation from the PAARNG (30 April 2005) he was transferred to the IRR and to correct his NGB Form 22 to show he was transferred to the IRR in accordance with his request.

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

    a.  amending Orders Number 255-1028 pertaining to the applicant to show he was separated from the PAARNG effective 30 April 2005 and transferred to in the IRR and also correcting his NGB Form 22 to show he was transferred to IRR on the same date.

   b.  showing he was promoted to major with a promotion effective date and date of rank of 1 May 2005, with all appropriate adjustments to pay and allowances, provided he was otherwise qualified and met all other prerequisites for promotion.

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 promotion to major effective 30 April 2005.




      ___________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)                                         AR20080010867



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ABCMR Record of Proceedings (cont)                                         AR20080005532


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