IN THE CASE OF:	

		BOARD DATE:	  8 January 2009

		DOCKET NUMBER:  AR20080008896 


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 record be corrected to show he was extended Federal Recognition in the rank of captain on 17 December 2006.

2.  The applicant states, in effect, he could not be promoted to captain due to a missing Officer Evaluation Report (OER).  The OER should have been completed on 9 May 2006 but it was not completed until 13 October 2007.  He states he filed a complaint with the Pennsylvania Inspector General (PAIG) who concluded the applicant's command was negligent in completing the OER.  He states the delay in the OER did not allow him to submit his packet [type of packet not specified] until December 2007.  He states that if the OER had been completed on time he would have submitted his packet in December of 2006 because he had already been selected by the Human Resources Command (AHRC) for promotion to captain and he was serving in a captain position at the time.

3.  The applicant provides, in support of his application, an OER for the period from 15 September 2005 to 9 May 2006 completed on 13 October 2007, a memorandum from AHRC-MSL-N, a memorandum from the Departments of the Army and the Air Force National Guard Bureau (DAAF-NGB), Federal Recognition Orders, and an electronic mail (e-mail) from the PAIG. 



CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned a second lieutenant in U.S. Army Reserve on 13 July 2001.  He had previously completed 3 years, 2 months, and 15 days of enlisted service in the Pennsylvania Army National Guard (PAARNG) that was characterized as honorable.

2.  On 14 July 2001, the applicant was commissioned a second lieutenant in the PAARNG.  DAAF-NGB Special Orders Number 46 AR, dated 19 February 2002, extended the applicant Federal Recognition in the rank of second lieutenant effective 14 July 2001.

3.  On 31 July 2003, the applicant was promoted to first lieutenant with an effective date of 14 July 2003.  DAAF-NGB Special Orders Number 203 AR, dated 7 August 2003, extended the applicant Federal Recognition in the rank of first lieutenant effective 14 July 2003.

4.  An AHRC Memorandum, dated 22 February 2007, notified the applicant the Army Reserve Components Mandatory Selection Board selected him for promotion to the rank of captain.  The memorandum also stated the applicant's effective date of promotion would be 13 July 2008, the date Federal Recognition is extended in the higher grade, or the date following the date Federal Recognition is terminated in his current Reserve grade.

5.  An e-mail, dated 14 January 2008, from the PAIG notified the applicant that his delinquent OERs were now up to date and entered into the integrated Personnel Electronic Records Management System (iPERMS).

6.  DAAF-NGB Memorandum, dated 4 February 2008, promoted the applicant to the rank of captain effective 4 February 2008 with a DOR of 4 February 2008.

7.  DAAF-NGB Special Orders Number 29 AR, dated 4 February 2008, extended the applicant Federal Recognition in the rank of captain effective 4 February 2008.

8.  The Acting Chief of the Personnel Division, DAAF-NGB, provided a comprehensive advisory opinion for consideration with this case.  A copy of this opinion was forwarded to the applicant for comment.  



9.  DAAF-NGB stated that the effective date of promotion for an Army National Guard (ARNG) commissioned officer is the date the Chief, DAAF-NGB extends 
Federal Recognition, unless otherwise provided by law.  DAAF-NGB states that there is no evidence that the missing OER was the sole factor in the decision not to promote the applicant on the date he requested.  DAAF-NGB also states the applicant was promoted within the time frame allowed for a first lieutenant and he had not reached the maximum years in grade of 5 years.  DAAF-NGB concludes that management of officers is the responsibility of the State within the guidance of the applicable regulations.

10.  The applicant submitted a rebuttal to the DAAF-NGB opinion.  He states that the sole reason he was not promoted to captain was due to the missing OER.  He states that he met all the requirements for promotion to captain and was in a captain position.  He states the sole reason he could not be promoted was his OER had not been completed by his superiors.

11.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), then in effect, requires the mandatory consideration of Army Reserve commissioned officers for promotion to the next higher grade at specified times in their careers as determined by the officer’s year in grade and years of commissioned service.  While promotion consideration is mandatory, selection for promotion is contingent upon an officer meeting promotion eligibility requirements and whether he or she has successfully participated in Reserve training.  Table 2-1 of this regulation states that the minimum years in the lower grade for a first lieutenant to be considered for promotion to captain is 2 years and the maximum years in the lower grade for a first lieutenant to be considered for promotion to captain is 5 years. 

12.  Army Regulation 135-155  states the effective date of promotion for commissioned officers may not precede the date on which the promotion memorandum is issued.  In addition, the officer must already be assigned/attached to a position in the higher grade.  

13.  National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions) provides that the promotion of an officer in the ARNG is a function of the State.  This regulation further provides the effective date of promotion for an ARNG commissioned officer who is promoted in the State is the date the Chief, National Guard Bureau extends Federal Recognition, unless otherwise provided by law.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DOR for the rank of captain should be 
17 December 2006 instead of 4 February 2008.  The applicant contends the delay in his promotion was due to a missing OER.

2.  According to National Guard Regulations the effective date of promotion for an ARNG commissioned officer is the date that Federal Recognition is extended in the higher rank.  In this case, the applicant's promotion eligibility date was     13 July 2008 (the date he attained 5 years time in grade as a first lieutenant), and Federal Recognition was extended in the rank of captain on 4 February 2008.  Therefore, the applicant's DOR for captain is correct.

3.  There is insufficient evidence to show a missing OER was the sole reason the applicant was not promoted on the date he requested.  There is no evidence of an improper delay in the processing of the applicant's promotion to captain or in the process for extending Federal Recognition.

4.  In addition, the applicant appears to be confusing a unit vacancy promotion with a mandatory promotion  There is no evidence the applicant was considered or selected by an Army Reserve Components Mandatory Selection Board in 2006, and unit vacancy promotions are the responsibility of the State and do not fall within the jurisdiction of the ABCMR.

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 that 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)                                         AR20080008896



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ABCMR Record of Proceedings (cont)                                         AR20080008896



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