IN THE CASE OF:	  

		BOARD DATE:	        29 JANUARY 2009

		DOCKET NUMBER:  AR20080008840 


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 that his date of rank (DOR) to captain be adjusted from 29 October 2005 to 30 October 2002.

2.  The applicant states that the delay in promotion was due to a series of administrative errors that occurred outside of his control.  He states that the errors have subsequently been corrected via previous Army Board for Correction of Military Records (ABCMR) actions over the past 4 years.  He states that the associated delay has interfered with his ability to compete with his peers and junior officers.  He states that ABCMR Record of Proceedings, Docket Number AR20070001773, appointed him to first lieutenant with a DOR of 30 October 2000.  He states that since he was already in a captain billet with good Officer Evaluation Reports throughout his career, he would have been promoted to captain in October or November of 2002.

3.  The applicant provides in support of his application, a copy of ABCMR Record of Proceedings, Docket Number AR20070001773, dated 5 April 2007; a copy of a memorandum from The Adjutant General, Pennsylvania Army National Guard (PAARNG), dated 29 May 2008, recommending that relief be granted in his case; a self-authored memorandum addressed to The Adjutant General, dated 8 May 2008, requesting assistance in his case; a portion of National Guard Bureau (NGB) Special Orders Number 110 AR, dated 7 May 2007, amending NGB Special Orders Number 192 AR and revoking NGB Special Orders Number
223 AR, dated 2 August 2005 and NGB Special Orders Number 4 AR, dated
8 January 2008; a copy of a memorandum from the United States Army Human 
Resources Command (AHRC), dated 26 March 2008, notifying the ARNG Personnel Center that he had been selected for promotion to captain; and a copy of a memorandum from AHRC, dated 27 March 2008, notifying him that he had been considered and recommended for promotion by a Department of the Army (DA) Standby Advisory Board (STAB).

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that in ABCMR Docket Number 20040006908, dated 9 June 2005, the ABCMR corrected the applicant's records to show that he was initially appointed as a second lieutenant in the PAARNG on 30 October 2000.

2.  The applicant was promoted to the rank of first lieutenant with an effective date of 12 December 2002 and he was promoted to the rank of captain with an effective date of 30 March 2006. 

3.  In an application dated 6 February 2007, the applicant petitioned the ABCMR to adjust his DOR to captain from 30 March 2006 to 30 March 2004.  The ABCMR granted partial relief in his case by directing that his records be amended to show that he was initially appointed in the PAARNG as a first lieutenant on 30 October 2000; paying him all back pay and allowances due; and placing his records before a Special Selection Board (SSB) for consideration for promotion to the rank of captain.

4.  On 27 March 2008, the applicant was notified by the AHRC Chief, Department of the Army (DA) Promotions that he had been recommended for promotion to captain by the DA STAB and that he was considered under the 2005 criteria.  He was informed that the board convened on 13 September 2007 and that upon final processing, a promotion letter would be forwarded to him with a DOR of 29 October 2005.  The applicant was further informed that under the Reserve Officer Personnel Management Act (ROPMA), if he was in a position and met the qualification, he could receive an earlier date of rank but not earlier than the Presidential approval date of 14 June 2006.

5.  During the processing of the applicant's case, an advisory opinion was obtained from the NGB, Chief, Personnel Division who recommended that the applicant's promotion effective date and DOR be adjusted from 29 October 2005 to 30 October 2003; that he be promoted to major effective 30 October 2007; and that he receive all back pay and allowances as a result of his adjustment and promotion.  The Chief, Personnel Division based his recommendation on National Guard Regulation 600-100; Title 10, U.S. Code, section 12207; and the DA mandatory promotion board guidance, which reflects that all first lieutenants with a date of rank of 31 March 2001 and back were seen by the 2003 selection board.

6.  The NGB, Chief, Personnel Division continued by stating that "in accordance with National Guard Regulation 600-100, chapter 8, paragraph 8-2(4)(b), the date of rank and effective date of promotion of an ARNG commissioned officer who was selected by a special selection board shall be the same date(s) the officer would have had if the officer had been recommended for promotion by the selection board which should have considered, or which did consider the officer (Title 10, U.S. Code, section 14502(e) (2))."  The NGB official further stated that Paragraph 8-4a states that an ARNG officer's years of service in the grade (time in grade) for purposes of promotion and Federal recognition will be computed in accordance with Title 10, U.S. Code, section 14006 and that such service is generally computed by adding all of the service that the officer has or is credited by the Secretary of the Army with having, in grade in the Army, on the Reserve active status list, or on the active duty list of the Army or at the discretion of the Secretary of the Army, any other armed force, while in an active status.

7.  A copy of the advisory opinion was forwarded to the applicant for acknowledgement and/or rebuttal on 5 June 2008 and he concurred with the information contained therein on 9 June 2008.

8.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for the promotion of Reserve and ARNG officers.  This regulation specifies that completion of 5 years maximum years of service in grade (MYIG) is required before promotion to captain.  Individual Ready Reserve and Individual Mobilization Augmentee officers selected by a mandatory promotion board must have completed the maximum time in grade.  Troop program unit and Active Guard Reserve officers selected by a promotion board will have a promotion effective date no earlier than the approval date of the board, provided that they are assigned to a position in the next higher grade.  When the board approval date is prior to assignment to the position in a higher grade, the effective date of promotion will be the date of assignment to a higher-grade position.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DOR to captain should be adjusted from 29 October 2005 to 30 October 2002.



2.  Notwithstanding the advisory opinion obtained from the NGB, Chief, Personnel Division, the applicant is not entitled to have his DOR to captain adjusted from 29 October 2005 to 30 October 2003.

3.  As a result of a previous ABCMR decision, the applicant's records were corrected to show that he was initially appointed in the PAARNG as a first lieutenant 30 October 2000 and he was furnished all back pay and allowances due as a result of that correction.  His records were placed before a DA STAB for consideration for promotion to the rank of captain.  He was selected for promotion with an effective date for promotion and a DOR of 29 October 2005.

4.  Army Regulation 135-155 specifies that a first lieutenant serve 5 years MYIG before promotion to captain.  Additionally, the applicant was informed by memorandum dated 27 March 2008 that under the ROPMA, if he was in a position and met the qualification, he could receive an earlier date of rank but not earlier than the Presidential approval date of 14 June 2006.  Notwithstanding the Presidential approval date, the applicant was given an earlier effective date of promotion of 29 October 2005.

5.  The advisory opinion obtained from the NGB, Chief, Personnel Division has been noted.  However, the applicant has failed to show that he met the eligibility criteria for promotion to captain on 30 October 2002 or on 30 October 2003.  He was not considered for promotion to captain by an SSB/STAB under the 2003 year criteria.  He was considered for promotion to captain by a DA STAB under the 2005 year criteria.  Therefore, even with the adjusted date of his initial appointment to first lieutenant, he was not eligible for promotion to captain until completion of 5 years MYIG (29 October 2005).  Any earlier date of promotion would have had to have been by a position vacancy board.

6.  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.



      _______XXX_______________
               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)                                         AR20080008840



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ABCMR Record of Proceedings (cont)                                         AR20080008840



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