IN THE CASE OF:	  .

		BOARD DATE:	        27 January 2009

		DOCKET NUMBER:  AR20080011758 


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 the rank of lieutenant colonel (LTC) be adjusted to 19 December 2007 (7 years after his date of promotion to major) or 27 November 2007 (the date he was eligible by Department of the Army (DA) Personnel Policy Guidance (PPG)).

2.  The applicant states he was notified by a letter from the U.S. Army Human Resources Command on 4 January 2007 that he had been selected for promotion to LTC on 29 September 2006 and placed on a DA Army Promotion List (APL).  The letter stated that if he was not promoted sooner by his state then he would be promoted on 19 December 2007.  On 11 April 2007, he was mobilized and deployed to Iraq for support in Operation Iraqi Freedom.  He states that the State of Illinois conducted an officer personnel management system promotion and position selection board on 27 November 2007 and he was matched to a duty position for an O-5.  According to the DA PPG, he was eligible for promotion as soon as he was matched to a duty position.  The applicant referenced the DA PPG, dated 14 May 2007, which states, "By law, all Reserve Component officers, mobilized or non-mobilized, whose promotions are not voluntarily delayed, involuntarily delayed, or declined, must be promoted on the date on which they complete the maximum time in grade:  5 years for first lieutenants and 7 years for captains and majors."  He also references page 281 of the DA PPG which states, "Mobilized Army National Guard (ARNG) (mobilization-day and Active Guard Reserve) officers who are on an approved mandatory selection board 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.  All ARNG officers promoted under the provisions of this new policy must be assigned to that position against which they are matched or appointed within 180-days after demobilization or transfer to the Individual Ready Reserve (IRR)."  He contends that the Illinois ARNG and National Guard Bureau did not promote him to the rank of LTC until 4 January 2008, which is 19 days after the maximum allowable time by law.

3.  The applicant provides the documents as listed in the Table of Contents.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve second lieutenant on 30 July 1986.  He was promoted to first lieutenant on 29 July 1989 and to captain on 28 July 1993.

2.  The applicant was appointed as a captain in the Illinois ARNG on 2 September 1995.  Departments of the Army and the Air Force National Guard Bureau, Special Orders Number 150 AR, dated 14 December 1995, granted him Federal recognition effective 2 September 1995.

3.  The applicant was promoted to major on 20 December 2000.

4.  A 1 September 2004 memorandum, subject:  Clarification of Policy to Promote DA Select Mobilized Officers at Maximum Time in Grade, states that ARNG officers recommended for promotion to the grades of captain through LTC under the provisions of Title 10, United States Code, sections 12301(a), 12302, and 12304 and who are on an approved mandatory selection board promotion list who reach their maximum time in grade (first lieutenants=5 years, captains=7 years, majors=7 years) will be promoted without regard to a position vacancy unless that officer has voluntarily delayed or declined promotion.

5.  The applicant was selected for promotion to LTC by a DA mandatory promotion board on 29 September 2006.

6.  His promotion memorandum, dated 4 January 2007, shows he was selected for promotion to the rank of LTC with a promotion eligibility date (PED) of 19 December 2007.  The promotion memorandum indicated the effective date of his promotion would be either of the following dates:

	a.  date shown after A above (19 December 2007),

	b.  date Federal recognition is extended in the higher grade, or

	c.  date following the date Federal recognition is terminated in current Reserve grade.

7.  On 11 April 2007, he was ordered to active duty in support of Operation Iraqi Freedom.

8.  In a 30 May 2007 memorandum, the applicant elected to delay his promotion to LTC as a Reserve of the Army and ARNG officer until 19 December 2007 under the provisions of the Reserve Officer Personnel Management Act.  He acknowledged that he understood that by delaying this promotion his name would be retained on the promotion list for a period not to exceed 3 years from the date he would otherwise be promoted.  He also acknowledged that he understood that he could be promoted at any time during the approved period of delay, or he could be removed from the list for some other reason in law or regulation.  He further acknowledged that he understood that at any time during the period of delay, or at the end of the approved period of delay, he must choose one of the following options:  (1) be promoted into the higher grade if a higher graded position is made available to him; (2) if there is no higher graded position and he desire to be promoted, his Federal recognition will be withdrawn.  He will be transferred to the Individual Ready Reserve and promoted; or 
(3) choose to decline the promotion at which time his name will be removed from the promotion list; he will be considered to have been not selected for promotion and, if this is his first non-selection for this grade, he will appear before the next mandatory board for his competitive category.

9.  A 27 November 2007 memorandum, shows that an Officer Centralized Personnel Management System Selection Board convened at Camp Lincoln, Springfield, Illinois, on 9 November 2007 and 16 November 2007.  This memorandum shows the applicant was selected for promotion and assigned as an operations officer.  The date of his promotion was not indicated.

10.  In an 8 December 2007 letter, the applicant acknowledged that he was being promoted in accordance with NGB-ARH memorandum, dated 30 January 2004, subject:  Promotion of Mobilized ARNG Officers who are Selected for Promotion by a DA Mandatory Promotion Board.  He further acknowledged that if he did not occupy a position of the grade to which he was being promoted to on the last day of the sixth month following his demobilization, he would be involuntarily transferred to the IRR.

11.  Based on the required 7 years of time in grade, his maximum years of service in grade (MYIG) date for promotion to LTC was 19 December 2007.

12.  Department of Military Affairs, State of Illinois, Camp Lincoln, Springfield, Illinois, Orders 354-287, dated 20 December 2007, show the applicant was promoted to LTC with an effective date of 20 December 2007.

13.  The applicant's promotion memorandum, dated 4 January 2008, shows he was promoted to LTC in the Reserve of the Army and for service in the ARNG of the United States with an effective date and DOR of 4 January 2008.  Departments of the Army and the Air Force National Guard Bureau, Special Orders Number 3 AR, dated 4 January 2008, granted him Federal recognition effective 4 January 2008.

14.  The applicant was released from active duty on 5 May 2008 at the completion of his required active service.

15.  The applicant was separated from the ARNG on 1 June 2008 and transferred to the U.S. Army Reserve Control Group (Reinforcement) on the following date.  Departments of the Army and the Air Force National Guard Bureau, Special Orders Number 154 AR, dated 20 June 2008, show his Federal recognition was withdrawn effective 1 June 2008.

16.  In the processing of this case, a staff advisory opinion was obtained from the National Guard Bureau.  This office recommended that the applicant's promotion effective date and DOR be adjusted to 19 December 2007 and that he receive all back pay and allowances.  The recommendation was based on the applicant's selection memorandum which reflected his PED as 19 December 2007, his maximum time in grade.  The advisory opinion referenced DA PPG, chapter 13, paragraph 13-5, and National Guard Bureau memorandum, dated 1 September 2004.

17.  A copy of the advisory opinion was forwarded to the applicant for comments.  He concurred with the advisory opinion and he submitted comments.  He stated that he is entitled to a DOR of 27 November 2007 for promotion to LTC which is the date he was matched against an open LTC vacancy by an Illinois ARNG officer position selection board.  He also stated that the DA PPG, which was in effect at the time, clearly stated that ARNG Soldiers mobilized for Operation Iraqi Freedom and Operation Enduring Freedom could be promoted when matched by his state against a slot if they were already DA selected.

18.  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.  The regulation provides that mandatory selection boards will be convened each year to consider Army Reserve officers in an active status for promotion to CPT through LTC.  Table 2-1 of this regulation outlines the service requirements for promotion and indicates that the maximum years of service required in the lower grade for promotion to LTC is 7 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the Illinois ARNG and National Guard Bureau did not promote him to the rank of LTC until 4 January 2008, which is 19 days after the maximum allowable time by law.

2.  The applicant was eligible for promotion to LTC on 19 December 2007 (his MYIG date for promotion to LTC).

3.  The 1 September 2004 memorandum from the National Guard Bureau directed that ARNG officers recommended for promotion to the grades of captain through LTC mobilized would be promoted without regard to a position vacancy unless that officer had voluntarily delayed or declined promotion.

4.  During his deployment to Iraq, the applicant requested to delay his promotion to LTC until 19 December 2007.

5.  The Illinois ARNG published orders on 20 December 2007 which promoted the applicant to LTC with an effective date of 20 December 2007.

6.  The National Guard Bureau issued a promotion memorandum on 4 January 2008 which promoted the applicant to LTC with an effective date and DOR of 4 January 2008 and he was granted Federal recognition on that date.

7.  Since the applicant reached his MYIG on 19 December 2007, his DOR to LTC should have been determined as 19 December 2007.

8.  It appears the applicant may have been given an erroneous DOR for promotion to LTC.

9.  Therefore, it would be appropriate to correct the applicant's DOR to LTC to 19 December 2007, the date he reached his MYIG.  However, the applicant's effective date should remain 4 January 2008, the date he was granted Federal recognition for promotion.



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 all the State ARNG and Department of the Army records of the individual concerned be corrected by adjusting his DOR to LTC to 19 December 2007.

2.  The Board further recommends that the Defense Finance and Accounting Service audit the applicant's military pay account to determine the amount owed to him as a result of the above correction and that he be paid any back pay owed to him.

3.  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 adjusting his DOR to LTC to 27 November 2007.



      _________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)                                         AR20080011758



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ABCMR Record of Proceedings (cont)                                         AR20080011758



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