IN THE CASE OF:	  

		BOARD DATE:	  

		DOCKET NUMBER:  AR20080006864


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 promotion effective date and date of rank for captain from 20 March 2008 to 17 November 2006.  

2.  The applicant states, in effect, that he should have been promoted to captain effective 17 November 2006 and he is two years behind his Army National Guard (ARNG) peer group.

3.  In support of his application, the applicant provides a copy of his U.S. Army Human Resources Command (HRC), St. Louis, MO memorandum, Subject: Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty, dated 22 February 2007.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show he was appointed in the Massachusetts Army National Guard (MAARNG), as a second lieutenant, effective 20 May 2001. He was promoted to first lieutenant effective 19 May 2003.  

2.  The applicant was considered and selected for promotion to captain by the 2008 Reserve Components Selection Board that convened on 7 November and adjourned on 17 November 2006.  The board results were released on 22 February 2007.

3.  Based on the completion of 5 years maximum time in grade, the applicant's promotion eligibility date (PED) for captain was 18 May 2008, upon consideration by a mandatory promotion board.  
4.  The applicant submits a copy of his Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty memorandum, dated 22 February 2007, that was issued to the National Guard Bureau (NGB) and advised of his selection for promotion by a mandatory board that adjourned on 17 November 2006.  The memorandum also advised that the applicant's promotion effective date would, in effect, be either his PED (18 May 2008), or the date he was extended Federal Recognition, or the date Federal Recognition was terminated.

5.  On 23 May 2007, the applicant elected a delay for his promotion to the next higher grade.  On 4 June 2007, the applicant’s commander recommended approval of the request.  His records do not show whether his request was approved or denied.

6.  On 11 March 2008, the MAARNG issued Orders Number 071-025, promoting the applicant to captain, with an effective date and date of 11 March 2008, based on his assignment to a captain’s position.  The orders also advised that the applicant would not be paid in grade of captain until Federal Recognition was confirmed and would not be entitled to pay and allowances prior to the date the NGB extended Federal Recognition.

7.  On 20 March 2008, the NGB issued Special Orders Number 75 AR, extending Federal Recognition and promoting the applicant to captain, with an effective date and date of rank of 20 March 2008.

8.  The NGB issued a promotion memorandum, dated 21 August 2008, promoting the applicant to captain, with a promotion effective date and date of rank of 20 March 2008.

9.  In an advisory opinion, dated 2 June 2008, the Chief, Personnel Division, Departments of the Army and the Air Force, NGB, reiterated the applicant's request.  The NGB official stated that the enclosed DA memorandum, dated 22 February 2007, stated that a promotion board was adjourned on 17 November 2006.  The memorandum also stated that the applicant's date of promotion would be a date following 18 May 2008, or the date Federal Recognition was extended in the higher grade, or the date following the date Federal Recognition was terminated in current Reserve grade.  In this case, the applicant's date of promotion was determined by NGB Special Orders Number 75 AR, dated
20 March 2008, which extended the applicant Federal recognition in the Army National Guard for the purpose of promotion to captain effective 20 March 2008.

10.  The Personnel Division official also stated that according to National Guard Regulation 600-100, Chapter 8, paragraph 1, the promotion of officer in the ARNG is a function of the states.  Army Regulation 135-155, Chapter 4, paragraph 2(c), stated that promotion lists are subject to additional administrative review and are not to be construed as promotion orders.  Accordingly, individuals will not assume that the structure of a list or the presence or a name on a list constituted a firm forecast for promotion.  Furthermore, paragraph 15(a), stated that the effective date of promotion for commissioned officers may not precede the date the promotion board results were approved and the officer must already be assigned/attached to a position in the higher grade.  There was no evidence that the applicant was assigned or attached to a captain's position prior to 20 March 2008.  Based on the foregoing, the NGB, Chief, Personnel Division recommended the applicant's request be denied.

11.  The advisory opinion was forwarded to the applicant for acknowledgement and/or rebuttal in 6 June 2008; however, he has not responded within the allotted timeframe.

12.  Army Regulation 135-155, prescribes the policies and procedures for the promotion of Reserve and ARNG officers.  The regulation specifies that a first lieutenant will receive mandatory promotion consideration for promotion to captain upon completion of 5 years in the lower grade.  An officer selected for the first time for promotion to the next higher grade may be promoted on or before the date that he/she completes the maximum years of service.  Unit officers must be serving in a position requiring the higher grade or assigned to the Individual Ready Reserve.  Promotion cannot be effective prior to approval of respective boards by the designated approval authority. 

13.  Army Regulation 135-155, paragraph 4-25, specifies that the names of ARNG and Reserve officers requesting delay of promotion to the next higher grade will be retained on the promotion list for the maximum period authorized, unless promoted to the grade for which selected or removed under some other provision of law or regulation.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to adjustment of his date of rank for captain to 17 November 2006.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The evidence of record shows the applicant was considered and selected for promotion to captain by the 2006 RCSB, which adjourned on 17 November 2006, with a PED of 18 May 2008.  However, it appears that he elected to delay his promotion because he had not met all the requirements for the promotion at the time, i.e., assignment/attachment to a captain’s position.  It further appears that 
he was assigned to a captain’s position on 11 March 2008 and promoted based on that assignment.  The NGB extended Federal Recognition and promoted him to captain on 20 March 2008.  Therefore, he received the earliest promotion date to which he was entitled.   

3.  It is concluded that the applicant could not be promoted any earlier without the assignment to a higher graded position.  He was appropriately promoted to captain based on his selection by the 2006 RCSB, assignment to the higher graded position, and extension of Federal Recognition on 20 March 2008.  There is no indication that his promotion effective date and date of rank for captain was administratively delayed, unjust, or inequitable.  

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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
      
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)                                         AR20080010023



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1


ABCMR Record of Proceedings (cont)                                         AR20080010023


4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1