IN THE CASE OF:	  

		BOARD DATE:	  	  18 February 2009

		DOCKET NUMBER:  AR20080009650 


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 lieutenant colonel (LTC) date of rank (DOR) be changed from 27 September 2007 to 1 February 2006.

2.  The applicant states, in effect, that he was transferred to the 36th Infantry Division Artillery (DIVARTY) Battalion, San Antonio, Texas, to the executive officer position effective 1 February 2006.  The applicant adds that he had already been Department of the Army (DA) selected for LTC with a promotion eligibility date of 3 November 2004.  His promotion packet was submitted in February 2006, but it was not accepted due to a shortage of controlled grade resources for Active Guard Reserve (AGR) officers in the Texas Army National Guard (ARNG).  His promotion packet was not accepted for this reason until 27 July 2007.  He finally states that his promotion was delayed for 18 months.

3.  The applicant provides a copy of Texas ARNG Orders 022-1000 dated 22 January 2006, a copy of a DA promotion selection memorandum dated 19 February 2004 and a copy of National Guard Bureau (NGB) Special Orders Number 235 AR dated 27 September 2007 in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The evidence of record shows the applicant was selected for promotion to LTC under the provisions of Army Regulation 135-155 (Army National Guard and U.S. Army Reserve Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) on 3 November 2004, upon consideration by a mandatory promotion board.  The memorandum also advised that the applicant's promotion effective date would, in effect, be either his promotion eligibility date (PED) of 3 November 2004, or the date he was extended Federal recognition, or the date Federal recognition was terminated.

2.  On 22 January 2006, the NGB issued Orders 022-1000 transferring the applicant to an executive officer position with Headquarters and Headquarters Battery, 36th DIVARTY, San Antonio, Texas.  The effective date of assignment was 1 February 2006.

3. On 27 September 2007, the NGB issued Special Orders Number 235 AR extending Federal recognition and promoting the applicant to LTC with an effective date and date of rank of 27 September 2007 and a PED of 3 November 2004.

4.  A review of the applicant’s available record and the documents that he submitted in support of his application found no documents reflecting that he was ineligible for promotion during the allotted time frame.

5.  In connection with the processing of this case, an advisory opinion was obtained from the Chief, Personnel Division, NGB.  The NGB official recommended approval of the applicant’s request that his date of promotion effective date be adjusted to 1 February 2006 and that he receive all back pay and allowances.  On the matter of adjusting his DOR to 1 February 2006, the Chief, Personnel Division, recommends disapproval because NGB Special Orders Number 235 AR, dated 27 September 2007, reflects his PED and DOR as 3 November 2004.  The Texas ARNG corrected his DOR in his Personnel Qualification Record to reflect 3 November 2004.

6.  On 13 August 2008, the applicant was provided a copy of the advisory opinion in order to have the opportunity to respond.  On 20 October 2008, the applicant responded, indicating that he concurred with the advisory opinion rendered in his case.

7.  Army Regulation 135-155, chapter 4, paragraph 21(d), states that Active Guard Reserve (AGR) officers selected by a mandatory board will be promoted provided they are assigned/attached to a position in the higher grade.  An AGR officer who is selected for promotion by a mandatory promotion board, but who is not assigned assigned/attached to a position in the higher grade will be promoted on the date of assignment to a higher grade position or the day after release from AGR status.  The DOR will be the date the officer attained maximum time in grade or the date on which assigned/attached to a position in the higher grade, whichever is earlier.

8.  National Guard Regulation 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions) provides the policies and procedures governing promotion of ARNG officers other than general officers.  It states, in pertinent part, that the promotion of ARNG officers is a function of the State.  It further indicates that unit vacancy promotions of qualified officers are based on the recommendations of the member's immediate commander, properly endorsed by all commanders concerned and the Adjutant General.  It also provides procedures for processing all applications for Federal Recognition by the NGB. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his LTC DOR should be corrected was found to have partial merit.  By regulation, the promotion of ARNG officers is a function of the State, and other than a member of the Individual Ready Reserve/Individual Mobilization Augmentation, the officer must be assigned to a position authorized the higher grade in order to be promoted.

2.  The evidence of record in this case confirms that the promotion memorandum announcing the applicant's selection for promotion to LTC authorized his promotion on his PED, which was 3 November 2004, upon selection by a mandatory promotion board.  The applicant was not extended Federal recognition and promoted to LTC until 27 September 2007; however, he was assigned to a position authorized the higher grade on 1 February 2006.

3.  Army Regulation 135-155, chapter 4, paragraph 21(d), states that AGR officers selected by a mandatory board will be promoted provided they are assigned/attached to a position in the higher grade.  An AGR officer who is selected for promotion by a mandatory promotion board, but who is not assigned assigned/attached to a position in the higher grade will be promoted on the date of assignment to a higher grade position or the day after release from AGR status.  The DOR will be the date the officer attained maximum time in grade or the date on which assigned/attached to a position in the higher grade, whichever is earlier.  The evidence of record shows that the applicant was assigned to position authorized a higher grade on 1 February 2006.

4.  The applicant's available record does not indicate that his DOR is in error.  It appears that the Texas ARNG corrected his DOR to show 3 November 2004.

5.  Therefore, in view of the facts of this case, it would be appropriate and serve the interest of justice to correct the applicant's record to show he was promoted to LTC on 1 February 2006.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that the Texas ARNG and the Department of the Army records of the individual concerned be corrected by showing he was promoted to LTC effective 1 February 2006, granting him Federal recognition as an LTC effective 1 February 2006, and by providing him any back pay and allowances due as a result.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing his date of rank to 1 February 2006.



      ___________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)                                         AR20080009650



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ABCMR Record of Proceedings (cont)                                         AR20080009650



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