IN THE CASE OF:	

		BOARD DATE:	  11 December 2008

		DOCKET NUMBER:  AR20080012937 


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 his effective date of rank (DOR) to major be changed to 17 August 2003 instead of 30 August 2004 in accordance with U.S. Army Human Resources Command (AHRC-MSL-N [previously TAPC-MSL-N]), St. Louis, Missouri, Department of the Army Promotion Consideration Memorandum dated 6 May 2005.  Additionally, he requests that Departments of the Army and the Air Force, National Guard Bureau, Washington, DC (DAAF-NGB) Special Order Number 212, dated 30 August 2004, be changed to show his Federal recognition was granted for major effective 17 August 2003.

2.  The applicant states, in effect, his DOR for major is incorrect.

3.  The applicant provides, in support of his application, copies of two letters from AHRC-MSL-N; six sets of orders issued by Joint Force Headquarters-Guam, Fort Juan Muna, Tamuning, Guam; Federal recognition orders from DAAF-NGB; promotion orders from DAAF-NGB; his DA Form 2-1 (Personnel Qualification Record); and page 1 of 3 Officer Evaluation Reports.  The applicant indicated he submitted a copy of a Department of the Army Promotion Consideration from AHRC-MSL-N, dated 6 May 2005, with his application.  However, a copy of this memorandum was not included with his application when received.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was appointed a first lieutenant in the Guam Army National Guard (GUARNG) on 3 April 1995.  He had previously served 52 months 
in the Reserve, 36 months on active duty as a first lieutenant, and another 
34 months in the USAR Control Group.

3.  AHRC-MSL-N Memorandum, dated 7 August 2003, notified the applicant the Army Reserve Components Mandatory Selection Board did not select him for promotion to the rank of major.

4.  AHRC-MSL-N Memorandum, dated 1 July 2004, notified the applicant the Army Reserve Components Mandatory Selection Board selected him for promotion to the rank of major.  The memorandum also stated the applicant's effective date of promotion would be either 17 August 2003, 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.  Joint Force Headquarters-Guam Orders 219-92, dated 6 August 2004, promoted the applicant to the rank of major with an effective date of rank of 
1 July 2004 and a DOR of 1 July 2004.  Additional instructions in the orders noted that the effective date of promotion and date of rank would be the date DAAF-NGB extends Federal recognition and that promotion orders would be amended to reflect the Federal recognition date.

6.  DAAF-NGB Special Orders 212 AR, dated 30 August 2004, extended the applicant Federal Recognition in the grade of major effective 30 August 2004.

7.  DAAF-NGB Memorandum, dated 30 August 2004, promoted the applicant to the rank of major in the U.S. Army Reserve effective 30 August 2004 with a DOR of 30 August 2004.

8.  A corrected copy of Joint Force Headquarters-Guam Orders 219-92, dated 
6 August 2004, amended the applicant's effective date of rank to 30 August 2004.

9.  The 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.  However, no response has been received.

10.  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.  Additionally, DAFF-NGB states that the effective date of promotion for commissioned officers may not be earlier than the date the promotion results are approved and the officer must already be assigned/attached to a position in the higher grade.  DAAF-NGB states there is no evidence the applicant was assigned to a major position prior to 1 July 2004.

11.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), then in effect, 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.  

12.  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 major should be 17 August 2003 instead of 30 August 2004.

2.  The applicant is requesting a DOR that would be earlier than the date on which the promotion memorandum was issued.  Army regulations prohibit the establishment of a DOR earlier than the date the promotion memorandum was issued, in this case 1 July 2004.

3.  In accordance with regulations the applicant could not be promoted until he was assigned to a position in the higher grade.  DAAF-NGB stated there was no evidence the applicant was assigned to a major position prior to 1 July 2004.  



4.  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, Federal Recognition was extended on 30 August 2004 in the rank of major.  Therefore, the applicant's DOR for the rank of major is correct.

5.  There is no evidence that there was any delay in the processing of the applicant's promotion to major or the process for extending Federal Recognition.

6.  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)                                         AR20080012937



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ABCMR Record of Proceedings (cont)                                         AR20080012937



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