IN THE CASE OF:	  

		BOARD DATE:	  	  7 August 2008

		DOCKET NUMBER:  AR20080008130 


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 reconsideration of his earlier request that his date of rank (DOR) to captain (CPT) be adjusted from 6 July 2004 to 12 January 2004 and that he receive all due back pay and allowances.

2.  The applicant states that the Board determined “the available evidence does not provide the reason or circumstances regarding the revocation of his promotion to captain in January 2004.  Therefore his DOR adjustment for first lieutenant does not automatically make those promotions (sic) orders valid.”  He states that he provides the Officer Personnel Officer Actions Log which identifies the reason for the revocation of his CPT promotion in January 2004 as his not having enough time in grade.  Since the Board established his first lieutenant (1LT) DOR as 15 November 2001, that means he had sufficient time in grade,    2 years (per Army Regulation 600-8-29, paragraph 1-10c(3)) to be promoted to CPT in January 2004.

3.  The applicant states that the Board wrote “the State of Ohio orders, dated      6 July 2004, indicated that the applicant was to be assigned to a different position in conjunction with his promotion to captain.”  He states that he was not assigned to a different position.  He was already assigned to the 216th Engineer Battalion as a chaplain.  There are no chaplain positions which are lower than the rank of CPT, and there is only one position in a battalion.  Therefore, he was not moved to another position within the battalion to be promoted.

4.  The applicant provides a memorandum, dated 2 April 2008, with an attached Officer Personnel Officer Actions Log, dated 2 April 2008; National Guard Bureau (NGB) Special Orders Number 26 AR, dated 30 January 2003; assignment orders, dated 4 December 2002; and a memorandum, dated 24 April 2008, with an attached listing of authorized chaplain positions.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070008523 on 6 March 2008.

2.  After having had prior enlisted service, the applicant was appointed a second lieutenant, Staff Specialist, in the Ohio Army National Guard (OHARNG) effective 12 May 2000.  He completed the Chaplain Officer Basic Course on 31 August 2001.  Effective 12 May 2002, he was promoted to 1LT and was granted Federal Recognition effective that date.  

3.  In July 2002, the applicant was interviewed by the Ohio State Chaplain and was approved for appointment to the Chaplain Corps.  The NGB Form 62-E (Application for Federal Recognition as an Army National Guard Officer or Warrant Officer and Appointment as a Reserve Commissioned Officer or Warrant Officer of the Army in the Army National Guard of the United States) indicated the applicant was desired to fill the position of Chaplain (paragraph 101, line 09) in Headquarters, 216th Engineer Battalion.

4.  On 31 August 2002, the applicant completed the Chaplain Candidate Program.  

5.  State of Ohio, Adjutant General’s Department, Orders 233-330, dated            4 December 2002, discharged the applicant from the OHARNG and as a Reserve of the Army effective 14 November 2002 for reappointment as a Chaplain.  He was appointed as a 1LT, Chaplain, in the OHARNG effective        15 November 2002 with assignment to Headquarters and Service Company, 216th Engineer Battalion (paragraph 101, line 09). 

6.  State of Ohio, Adjutant General’s Department, Orders 009-187, dated          13 January 2004, promoted the applicant to CPT effective 12 January 2004.  These orders show his1LT DOR as 1 January 2002.  They also show his duty assignment as Chaplain (paragraph 101, line 09), Headquarters and Service Company, 216th Engineer Battalion.  These orders were revoked by orders dated 19 February 2004.  

7.  The applicant provided an Officer Personnel Officer Actions Log database, certified by the Chief, Officer Personnel Branch, State of Ohio, The Adjutant General’s Department, indicating that the applicant’s promotion request was returned from NGB on 19 February 2004 because he did not have enough time in grade until 12 May 2004 for the promotion.  

8.  State of Ohio, Adjutant General’s Department Orders 132-010, dated 6 July 2004, promoted the applicant to CPT effective 12 May 2004.  They show his 1LT DOR as 12 May 2004.  They also show his duty assignment as Chaplain (paragraph 101, line 09), Headquarters and Service Company, 216th Engineer Battalion.  He was granted Federal Recognition effective 2 September 2004.  

9.  In the previous consideration of this case, the Officer Personnel Manager, Adjutant General’s Department, State of Ohio, had stated that the applicant should have received a year of constructive credit when he was appointed as a chaplain on 15 November 2002.  That would have given the applicant a 1LT DOR of 15 November 2001.

10.  In the previous consideration of this case, the Personnel Division, NGB, agreed that the applicant’s 1LT DOR should be adjusted to 15 November 2001 but recommended disapproval of his request to change his CPT DOR, apparently because the promotion was based upon a position vacancy.  The applicant had rebutted the advisory opinion.  He stated his promotion was not based on a position vacancy, and he had not been moved into a new position for the purpose of promotion.  He stated that by adjusting his 1LT DOR to 15 November 2001, his initial promotion orders to CPT, dated 13 January 2004, was valid and should be recognized.

11.  Army Regulation 600-8-29 (Officer Promotions) prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the active duty list.

12.  National Guard Regulation 600-100 prescribes policies and procedures governing, in part, the appointment, Federal Recognition, and separation of commissioned officers of the ARNG.  Chapter 8 states the promotion of officers in the ARNG is a function of the State.  A commissioned officer promoted by State authorities has a State status in the higher grade under which to function.  However, to be extended Federal Recognition in the higher grade, the officer must have satisfied the requirements prescribed in this chapter.  Chapter 8 also states a commissioned officer must complete a minimum of 2 years time in the lower grade for promotion to CPT (i.e., for a vacancy promotion).


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s arguments, combined with the new evidence he provided, have merit.

2.  Although the applicant cited the wrong authority (Army Regulation 600-8-29) to show he had sufficient time in grade for his January 2004 promotion to CPT, the correct authority, National Guard Regulation 600-100, provides for the same time-in-grade requirement.  Although the applicant also contended that his promotion was not a vacancy promotion, it was a vacancy promotion.  He just happened to be promoted into the CPT position to which he was already assigned.

3.  The evidence of record shows that the applicant had been assigned to Headquarters and Service Company, 216th Engineer Battalion (paragraph 101, line 09), ever since he was appointed as a Chaplain on 15 November 2002.

4.  The vacancy promotion of officers in the ARNG is solely a function of the State.  When the State of Ohio believed that the applicant’s 1LT DOR was          1 January 2004 (as shown on his January 2004 CPT promotion orders), the State wanted the applicant promoted to CPT effective 12 January 2004.  It is only common sense to believe that had the State believed the applicant’s 1LT DOR to be 15 November 2001, which NGB and this Board agreed it should have been, then the State still would have wanted him to be promoted to CPT effective        12 January 2004.  

5.  It appears that NGB’s failure to coordinate with the State to discover where the disconnect in regard to the applicant’s 1LT DOR was, or vice versa, has resulted in an injustice to the applicant.  It would therefore be equitable to reinstate the applicant’s 12 January 2004 promotion to CPT and to show that he was granted Federal Recognition as a CPT that date.

BOARD VOTE:

___xx___  ___xx___  ___xx___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20070008523 dated 6 March 2008.  As a result, the Board recommends that the State Army National Guard Records and all Department of the Army records of the individual concerned be corrected by:

     a.  revoking his 12 May 2004 promotion to CPT and the Federal Recognition of his 12 May 2004 promotion to CPT;  

     b.  showing he was promoted to CPT effective 12 January 2004 and was granted Federal Recognition of his promotion to CPT effective 12 January 2004; and

     c.  paying to him all back pay and allowances due as a result of the above corrections.




      _______ xxxxx______   ___
               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)                                         AR20080008130





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ABCMR Record of Proceedings (cont)                                         AR20080008130



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