IN THE CASE OF:	  

		BOARD DATE:	        18 December 2008

		DOCKET NUMBER:  AR20080009743 


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 effective date of rank as a captain (CPT) be back dated to 7 June 2004.

2.  The applicant states that, as a mobilized Reserve officer, he met the criteria for promotion without consideration of a position vacancy.  He was mobilized under the provisions of Title 10, had reached his maximum time in grade, and was on an approved promotion list.  He was ultimately promoted when the State of Idaho located a position in the higher rank and promoted him on 13 March 2005 in the Idaho Army National Guard with Federal recognition on 28 April 2005.

3.  The applicant provides copies of his 13 October 1998 promotion orders, an 8 April 2004 U.S. Army Human Resources Command – St. Louis (HRC-STL) memorandum, a 10 March 2005 State of Idaho Military Division Orders
414-0011, a 28 April 2005 National Guard Bureau Special Orders Number 131 AR, a 28 April 2005 National Guard Bureau promotion notification, and his
3 December 2005 DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned a second lieutenant in the Army National Guard and promoted to first lieutenant on 13 October 1998.


2.  An 8 April 2004 HRC-STL memorandum notified the applicant of his eligibility for promotion to captain, as a Reserve commissioned officer not on active duty.  His effective date of promotion is listed as 12 October 2003.

3.  The applicant was called to active duty on 7 June 2004 in support of Operation Iraq Freedom.

4.  On 10 March 2005, State of Idaho Military Division, Orders 414-0011 notified the applicant he had been promoted to captain effective 7 March 2005.  This date is lined out and the date of 28 April 2005 is inked in.

5.  On 28 April 2005, National Guard Bureau, Special Orders Number 131 AR, extended the applicant Federal recognition for the purpose of promotion to captain, effective 28 April 2005.

6.  His 3 December 2005 DD Form 214 shows he served on active duty in support of Operation Iraq Freedom in accordance with Title 10, U.S. Code, section 12302.  It shows that he was released from active duty as a captain with an effective date of rank of 28 April 2005.

7.  An advisory opinion was obtained from the National Guard Bureau, Chief, Personnel Division.  It was recommended that the applicant's request be approved and that he receive all back pay and allowances as a result of this adjustment.  The recommendation is based on the Soldier's record, National Guard Regulation 600-100 promotion guidance, and National Guard Bureau – Army Human Resources (NGB-ARH) Policy Memorandum 04-0025.

8.  A copy of the advisory opinion was forwarded to the applicant with no reply being returned. 

9.  By memorandum dated 17 December 2003, the Office of the Assistant Secretary of the Army (Manpower and Reserve Affairs), established promotion policy for mobilized Reserve Component officers for promotion to the grades of captain through colonel.  The policy memorandum provides an exception to Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers), paragraph 4-9a, which requires as a condition for promotion that a U. S. Army Reserve Troop Program Unit officer selected by a mandatory promotion board be assigned or attached to a permanent Reserve Component position requiring the higher grade.  To the extent that other provisions of other regulations, to include National Guard Regulation 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions), conflict with this policy memorandum, those provisions are waived with respect to those officers to whom this policy applies for as long as this policy memorandum is in effect.

10.  The 17 December 2003 memorandum went on to state that a mobilized Army National Guard of the United States officer covered by this policy memorandum who has been recommended for promotion to the next higher grade by a mandatory promotion board and who is 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 the officer was matched or appointed within 180 days after demobilization.

11.  The 17 December 2003 memorandum further stated, “If the Chief, Army Reserve, and the Director, Army National Guard, implement this policy memorandum for their respective components, then they will ensure that promotions do not exceed the personnel strength and strength-in-grade limitations of Title 10, United States Code.  Any proposed guidance to implement this policy memorandum that will be issued by either the Chief, Army Reserve, or the Director, Army National Guard, must be coordinated with the Deputy Chief of Staff, G-1, and approved by the Assistant Secretary of the Army (Manpower and Reserve Affairs).”

13.  By memorandum dated 30 January 2004, the Director, Army National Guard implemented the promotion policy outlined by the Assistant Secretary of the Army (Manpower and Reserve Affairs) memorandum dated 17 December 2003.  Effective the date of this memorandum (i.e., 30 January 2004) Army National Guard officers mobilized under the provisions of Title 10, U. S. Code, section 12301(a), 12302, and 12304, who have been selected for promotion by a Department of the Army mandatory promotion board, may be promoted immediately when appointed in the State against a position of the higher grade the officer will occupy upon demobilization.  While the memorandum authorizes States to promoted mobilized officers under this policy, there is no requirement to do so.  

14.  The 30 January 2004 memorandum went on to state that when a mobilized officer is promoted against a position in the State, the officer must be assigned to the position immediately following demobilization and release from active duty.  If, within 180 days following demobilization, an officer declines or is unwilling or unable to occupy the position against which the officer was promoted, or is unable to occupy any other position of the higher grade for which he/she is qualified, then the officer shall be transferred immediately to the Individual Ready Reserve.
15.  National Guard Regulation 600-100, paragraph 8-15 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 met the criteria for promotion to captain while serving in a mobilized Federal status commencing on 7 June 2004. 

2.  Therefore, it is appropriate to correct his effective date and date of rank for promotion to captain to 7 June 2004.

3.  With this adjustment of effective date and date of rank the applicant is entitled to all rights and benefits in the higher rank including retroactive pay and allowances.

BOARD VOTE:

___X____  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all state Army National Guard records and the Department of the Army records of the individual concerned be corrected, as appropriate, by:

	a.  amending State of Idaho Military Division, Boise, ID, Orders 414-0011, dated 10 March 2005 to show the applicant was promoted to captain effective
7 June 2004 with the same date of rank;

	b.  amending National Guard Bureau, Special Orders Number 131 AR, dated 28 April 2005, to show the applicant was extended Federal recognition for the purpose of promotion to captain, effective 7 June 2004; and  

	c.  paying him any back pay and allowances due as a result of these corrections.



															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)                                         AR20080009743



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ABCMR Record of Proceedings (cont)                                         AR20080009743



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