IN THE CASE OF:	  

		BOARD DATE:	  

		DOCKET NUMBER:  AR20080008210 


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, he be promoted to the rank of colonel as provided for in Office of the Assistant Secretary, Manpower and Reserve Affairs Memorandum, dated 14 January 2005.

2.  The applicant states, in effect, he was selected for promotion to colonel twice and because he was a mobilized officer selected for promotion by a Department of the Army Mandatory Promotion Board he should have been promoted without regard to the existence of a vacancy on the date which he completed the maximum years of service in the grade of lieutenant colonel.  He states his maximum time in grade of 5 years as lieutenant colonel was 30 July 2006.  He further states he volunteered and was deployed to Iraq in support of Operation Iraqi Freedom from 15 November 2005 to 14 November 2006.  He further states his declination statement for his first selection to colonel was made based on false information given to him by B---i E----t and the office of Officer Personnel Management of the California Army National Guard (CAARNG).  He further states he later learned he should not have signed the declination statement.  

3.  The applicant further states he submitted a formal request to Major General W--e, Adjutant General of California through command channels with a memorandum of endorsement from Major General C----r F. H-m, 1st Infantry Division Commander.  He states he has not received a response from either Major General W--e or the CAARNG.


4.  The applicant provides a copy of a memorandum, dated 14 January 2005, from The Office of the Assistant Secretary, Manpower and Reserve Affairs; a memorandum, dated 1 September 2004, from the Departments of the Army and the Air Force, National Guard Bureau (NGB); his selection letter for promotion to colonel, dated 24 October 2006; his orders to active duty in Kuwait, dated 
6 December 2005; a letter from Major General H-m, dated 2 July 2007; his selection letter for promotion to colonel, dated 17 November 2005; an excerpt from an Army National Guard Regulation; and a chart showing his promotion timeline in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel record shows he was commissioned a second lieutenant in the U.S. Army Reserve on 10 January 1985.

2.  On 21 May 1985, the applicant took the oaths of office in the CAARNG as a second lieutenant.  The applicant served in the Regular Army during the period from 31 October 1985 to 1 November 1996 and was released from active duty as a captain.  On 2 November 1996, the applicant took the oaths of office in the CAARNG as a captain.

3.  The applicant was assigned to active duty in the Active Guard Reserve (AGR), promoted to lieutenant colonel effective 30 July 2001, and released from active duty, not by reason of physical disability, effective 14 November 2004.  He was notified on 29 September 2005 that he had completed the required years of service for eligibility for retired pay upon application at age 60.

4.  The applicant was ordered to active duty under the provisions of Title 10, USC, Section 12301(d) as a lieutenant colonel for duty in Kuwait during the period from 15 November 2005 to 14 November 2006.

5.  On 17 November 2005, U.S. Army Human Resources Command, St. Louis, Missouri (HRC-STL), notified the NGB of the applicant's selection for promotion to colonel with an effective date of 29 July 2006.  The applicant declined this promotion on 5 April 2006

6.  On 24 October 2006, U.S. Army Human Resources Command, St. Louis, Missouri (HRC), notified the NGB of the applicant's second selection for promotion to colonel with an effective date of 29 July 2006.  

7.  The records do not show the applicant's status from 15 November 2006 to 
28 January 2007.  There is no evidence the applicant was assigned to a colonel vacancy upon the completion of his tour of active duty on 14 November 2006.
8.  On 18 January 2007, HRC ordered the applicant to active duty under the provisions of Title 10, USC, Section 12301(d) in the grade of lieutenant colonel for duty at For Riley, Kansas during the period from 29 January 2007 to 
28 January 2008.

9.  A letter from Major General H-m, Commanding General, Headquarters, 
1st Infantry Division and Fort Riley, Fort Riley, Kansas, submitted by the applicant, dated 2 July 2007, to The Adjutant General, State of California, recommended the applicant be assigned to a vacant position within the CAARNG so he could be promoted to the rank of colonel.

10.  On 19 November 2007, HRC ordered the applicant to active duty in the grade of lieutenant colonel for duty at Fort Riley during the period from 
29 January 2008 to 27 January 2009.  On 9 June 2008, the end date for this period was amended to read 31 August 2008 and on 24 June 2008 the end date was extended to 30 November 2008.

11.  In the processing of this case, an advisory opinion, dated 21 May 2008, was provided by the Chief, Personnel Division, NGB.  NGB recommended the applicant be promoted effective 29 July 2006 and receive all back pay and allowances as a result of this promotion.  NGB cites Memorandum from the Assistant Secretary of the Army (Manpower and Reserve Affairs), dated 
17 December 2003; Memorandum from the Director of the Army National Guard, dated 30 January 2004; Memorandum from the Chief of Personnel Policy and Readiness Division, NGB, dated 1 September 2004; and Title 10, United States Code, Section 14304(b) and 14316(d) as the basis for the recommendation.

12.  In the advisory opinion NGB stated that the memorandum from the Assistant Secretary of the Army (Manpower and Reserve Affairs), Subject Promotion of Mobilized Reserve Component Officers on the Reserve Active Status List, states that a mobilized RC (Reserve Component) officer recommended for promotion to the grades of captain through lieutenant colonel by a mandatory promotion  board, and who are on an approved promotion list, shall be promoted without regard to the existence of a vacancy or placement against a position of a higher grade under this policy memorandum on the date on which the officer completes the maximum years of service as specified.

13.  The NGB further stated that the memorandum from the Chief of Personnel Policy and Readiness Division, NGB, Subject: Clarification of Policy to Promote DA Select Mobilized Officers at Maximum Time in Grade (NB-ARH memo 
#4-0025), states that ARNG (Army National Guard) officers recommended for promotion to the grades of captain through lieutenant colonel mobilized under the provisions of Title 10, United States Code (USC), Sections 12301(a), 12302, and 12304 and who are on an approved mandatory selection board promotion list who reach their maximum time in grade will be promoted without regard to the existence of a vacancy unless that officer has voluntarily delayed or declined promotion.

14.  On 31 May 2008, the applicant concurred with NGB's recommendation.

15.  Office of the Assistant Secretary, Manpower and Reserve Affairs Memorandum, dated 14 January 2005, Subject: Promotion of Volunteers on Active Duty under the Provisions of Title 10, USC, Section 12301(d), established policy for promotion of certain RC officers to the grades of captain through colonel.  In accordance with this memorandum an Army National Guard of the United States (ARNGUS) officer covered by this policy memorandum, recommended for promotion to the next higher grade by a mandatory promotion board, and on an approved promotion list, may be promoted immediately when appointed in the state against a vacant position of the higher grade in a federally recognized unit in the National Guard.  An officer promoted under this policy memorandum should be assigned to that position against which they were matched or appointed within 180 days after completing his or her current tour of active duty, i.e. the tour of duty on which the officer is servicing at the time of promotion under this policy.  If an officer, upon completing his or her current tour of active duty declines or is unwilling or unable to occupy the position against which the officer was matched or appointed, the officer, whether a member of the USAR or ARNGUS, shall be transferred immediately to the Individual Ready Reserve unless the officer is assigned to some higher grade RC position within 180 days after completing his or her current tour of active duty.

16.  This memorandum further points out that, in accordance with Title 10, USC Sections 14304(b) and 14316(d), that a mobilized RC officer who has been recommended for promotion to the grades of captain through lieutenant colonel by a mandatory promotion  board, and who are on an approved promotion list, shall be promoted without regard to the existence of a vacancy or placement against a position of a higher grade under this policy memorandum on the date on which the officer completes the maximum years of service as specified in Title USC, Section 14304(a).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been promoted to the rank of colonel during his deployment to Iraq in accordance with Office of the Assistant Secretary, Manpower and Reserve Affairs Memorandum, dated 14 January 2005.
2.  Office of the Assistant Secretary, Manpower and Reserve Affairs Memorandum, dated 14 January 2005, is the latest guidance concerning the promotion of USAR and ARNG officers who are mobilized.  This memorandum was, and still is, in effect at the time of both of the applicant's selections for promotions to colonel.

3.  According to this memorandum, the provisions for promoting ARNG officers without regard to the existence of a vacancy or placement against a position of a higher grade only applies to those officers recommended for promotion to captain through lieutenant colonel.  The applicant's recommendation was for promotion to colonel.  Therefore, this provision does not apply in his case.

4.  The memoranda cited in the advisory opinion from NGB also state that the provisions for promoting ARNG officer without regard to the existence of a vacancy or placement against a position of a higher grade only applies to those officers recommended for promotion to captain through lieutenant colonel.  Therefore, because the applicant's recommendation was for promotion to colonel, this provision does not apply in his case.

5.  Because his promotion was to colonel he could only be promoted when appointed in the state against a vacant position of the higher grade in a federally recognized unit.  Although the evidence shows the commanding general at Fort Riley recommended the applicant be assigned to a vacant position, there is no evidence that he was appointed in the CAARNG against a vacant position of the higher grade of colonel in a federally recognized unit in the National Guard.

6.  Notwithstanding the opinion provided by the NGB, there are no provisions to promote the applicant to colonel unless he is appointed in the state of California against a vacant position of the higher grade in a federally recognized unit in the National Guard.

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)                                         AR20080008210



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ABCMR Record of Proceedings (cont)                                         AR20080008210



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