IN THE CASE OF:	  

		BOARD DATE:	  13 January 2009

		DOCKET NUMBER:  AR20080008598 


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, that his date of rank (DOR) to major (MAJ) be changed from 30 April 2008 to 28 March 2007.

2.  The applicant states, in effect, that he was originally selected for promotion to MAJ under Title 10 status with a 28 March 2007 DOR; however he was promoted with an effective date and DOR of 30 April 2008.

3.  The applicant provides the following documents in support of his application:  United States Army Human Resources Command (AHRC) - St. Louis memorandum, dated 3 July 2007 and National Guard Bureau (NGB) memorandum, dated 30 April 2008.

CONSIDERATION OF EVIDENCE: 

1.  The applicant’s military record shows he was appointed a Reserve commissioned officer in the New York Army National Guard (NYARNG) in the rank of second lieutenant (2LT) on 23 January 1997.  He was promoted to first lieutenant (1LT) on 28 December 1998 and to captain (CPT) on 30 July 2001.

2.  On 21 February 2006, the Office of the Adjutant General, State of New York, issued Orders 052-161, which ordered the applicant to active duty in support of Operation Enduring Freedom (OEF).  Accordingly, the applicant entered active duty as a member of the Army National Guard (ARNG) of the United States on 27 February 2006.

3.  On 30 May 2007, the applicant was honorably released from active duty (REFRAD) by reason of completion of required active service and transferred to the NYARNG.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at that time shows that he completed 1 year, 3 months, and 4 days of active service for the period covered.

4.  On 3 July 2007, an AHRC-St. Louis Office of Promotions for Reserve Components memorandum notified the applicant of his selection for promotion to the grade of MAJ by a board that adjourned on 28 March 2007.  The board results were released on 3 July 2007.  The memorandum indicated that the applicant's effective date of promotion would be either of the following dates:  his promotion eligibility date of 29 July 2008, the date Federal recognition is extended in the higher grade, or the date following the date Federal recognition is terminated in current Reserve grade.

5.  On 25 April 2008, the Office of the Adjutant General, Joint Force Headquarters, issued Order Number 116-1011, which assigned the applicant to a MAJ’s position on 15 April 2008.  On 28 April 2008, Order Number 119-1014 was issued to announce the applicant’s promotion to MAJ with an effective date and DOR of 25 April 2008.

6.  On 30 April 2008, the Departments of the Army and the Air Force of the NGB issued Special Orders Number 109 AR.  These orders announced the extension of Federal recognition in the ARNG effective 30 April 2008 for the purpose of his promotion to MAJ.

7.  On 30 April 2008, the NGB issued a memorandum which announced the applicant’s promotion to MAJ with an effective date of promotion and DOR of 30 April 2008.

8.  In an advisory opinion dated 30 September 2008, the Chief, Personnel Division, NGB, stated that the applicant was not assigned to a MAJ position until 15 April 2008 and therefore recommended denial of the applicant’s request to adjust his DOR to 28 March 2007.  He further cited the governing National Guard Regulation and indicated the promotion of ARNG Soldiers is a function of the State for those Soldiers with a State status in the higher grade under which to function.  The Chief further provided that in order to be extended Federal recognition, all requirements for promotion must be satisfied first and that the effective date of promotion will be the date the date Federal recognition is extended.

9.  On 6 October 2008, the applicant was provided a copy of the advisory opinion for his comments and/or rebuttal.  He did not respond.
10.  Army Regulation 135-155 (Army National Guard and U.S. Army Reserve Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that 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 service.

11.  National Guard Regulation 600-100 (Commissioned Officer- Federal recognition and Related Personnel Actions) contains the policy for Federal recognition of ARNG officers.  Chapter 8 contains guidance on the promotion of other than general officers and it states in paragraph 8-2 that the DOR as a Reserve of the Army for an ARNG traditional (M-Day) commissioned officer who is promoted as a result of selection by a mandatory selection board is the date the Chief, NGB, extends Federal recognition.

12.  Paragraph 8-15 of National Guard Regulation 600-100 states an ARNG commissioned officer, not on active duty, who is selected for promotion as a Reserve commissioned officer of the Army resulting from mandatory consideration may be extended Federal recognition in the higher grade subject to several conditions, including that the officer has reached his or her promotion eligibility date and that the officer is promoted in a State status to fill an appropriate position vacancy in the higher grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to change his MAJ DOR to 28 March 2007, was carefully considered.  However, there is an insufficient evidentiary basis to support granting the requested relief.

2.  The evidence of record confirms that the applicant was mobilized on active duty in support of OEF at the time he was selected for promotion to MAJ by the Reserve Component Selection Board that adjourned on 28 March 2007.  The promotion memorandum stated his promotion eligibility date was 29 July 2008; 28 March 2007 was only the date the board adjourned and was not his "date of rank."

3.  The results of the promotion board were released on 3 July 2007.  The applicant had been REFRAD on 30 May 2007; therefore, mobilization promotion policies did not apply in this case.

4.  The applicant was not matched against a higher grade position until 15 April 2008.  Accordingly, he was granted Federal recognition to MAJ on 30 April 2008, his soonest available date after he was assigned to the MAJ position on 15 April 2008.  There is no basis upon which to grant his request to adjust his MAJ DOR to 28 March 2007.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit 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
      
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)                                         AR20080008598



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080008598



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1