IN THE CASE OF:	  

		BOARD DATE:	  	  16 April 2009

		DOCKET NUMBER:  AR20080013378 


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, adjustment of his date of rank (DOR) for major (MAJ)/pay grade O-4 from 7 December 2007 to 7 June 2007.

2.  The applicant states, in effect, that he was selected for promotion to captain (CPT)/pay grade O-3 in 1999.  He then transferred to the U.S. Army Reserve (USAR) Individual Ready Reserve and was not immediately promoted to CPT.  The applicant also states that Headquarters, U.S. Army Human Resources Command (USAHRC), St. Louis, MO, awarded him a DOR to MAJ/pay grade 
O-4 of 7 June 2007 and he is now being selected a second time for promotion to MAJ/pay grade O-4.

3.  The applicant provides copies of U.S. Total Army Personnel Command, St. Louis, MO, memorandum, dated 4 May 1999, subject:  Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty; USAHRC, St. Louis, MO, memorandum, dated 3 July 2007, subject:  Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty; State of New Jersey, Department of Military and Veterans Affairs, Trenton, NJ, Orders 324-036, dated 20 November 2007; National Guard Bureau (NGB), Arlington, VA, memorandum, dated 7 December 2007, subject:  Promotion as a Reserve Commissioned Officer of the Army; Headquarters, NGB, Washington, DC, Special Orders Number 307 AR, dated 7 December 2007; USAHRC, St. Louis, MO, memorandum, dated 20 March 2008, subject:  Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty as a Result of a Special Selection Board (SSB); and USAHRC, St. Louis, MO (Information Copy), memorandum, dated 20 March 2008, subject:  Promotion Consideration.
CONSIDERATION OF EVIDENCE:

1.  The applicant’s military personnel records show he enlisted in the Army National Guard (ARNG) on 15 August 1986.  The applicant was appointed a Reserve commissioned officer in the rank of second lieutenant/pay grade O-1 on 16 May 1992.  He was ordered to active duty training on 6 September 1992 and upon completion of the Armor Officer Basic Course he was awarded primary specialty of 12A (Armor, General).  The applicant’s military personnel records show he was promoted to the rank of first lieutenant/pay grade O-2 effective and with a DOR of 15 May 1995.

2.  The applicant’s military personnel records contain a copy of NJARNG, Headquarters and Headquarters Troop, 5th Squadron, 117th Cavalry, 42nd Infantry Division (Mechanized), Vineland, NJ, memorandum, dated 20 June 1999 (with pen and ink correction showing a date of 2 February 2000), subject:  Delay of Promotion as a Reserve of the Army and Army National Guard Officer, and NJARNG, Headquarters, State Area Regional Command, Fort Dix, NJ, 3rd endorsement, dated 18 February 2000, subject:  Delay of Promotion as a Reserve of the Army and Army National Guard Officer.  These documents show the applicant elected to delay promotion to the grade of O-3 as a Reserve of the Army and ARNG officer until 10 December 2001, that the request was approved for a period of 3 years (i.e., until 10 December 2001), and that his name would be retained on the promotion list unless he was sooner promoted in the NJARNG to the grade of O-3 or at any time earlier he requested promotion as a Reserve officer of the Army and such request was approved.

3.  Effective 2 March 2000, the applicant was separated from the ARNG and transferred to the USAR, where he was promoted to CPT in May 2000.

4.  The applicant's military personnel records contain an NGB Form 62-E (Application for Federal Recognition as an Army National Guard Officer or Warrant Officer and Appointment as a Reserve Commissioned Officer or Warrant Officer of the Army in the Army National Guard of the United States), dated 18 January 2002; NGB Form 337 (Oaths of Office), dated 18 January 2002; and Headquarters, NGB, Washington, DC, Special Orders Number 53 AR, dated 25 February 2002.  The NGB Form 62-E shows that the applicant applied for Federal recognition as a CPT/pay grade O-3 and the Director of Personnel and Community Service, NJARNG, on behalf of The Adjutant General, State of New Jersey, endorsed the applicant's request and forwarded the application to the Chief, NGB, Washington, DC.  The NGB Form 337 shows, in pertinent part, the applicant executed his oath of office in the rank of CPT/pay grade O-3 effective 18 January 2002.  The special orders show extension of Federal recognition in the ARNG of the applicant's appointment in the rank of CPT/pay grade O-3 was announced effective 18 January 2002.

5.  The applicant's military personnel records contain DA Form 67-9 (Officer Evaluation Report) for the period from 18 January 2007 through 30 September 2007.  Part I (Administrative Data), block c (Rank) shows his rank as "CPT."  Part III (Duty Description), block a (Principal Duty Title) and block b (Position AOC [Area of Concentration]/Branch) shows he was assigned as Threat Team Chief in position AOC 02A00.  Part V (Performance and Potential Evaluation - Rater), block c (Comment on Specific Aspects of the Performance), in pertinent part, contains the entry "Captain S____ has completed his Officer Advanced Course."  Part VII (Senior Rater), block c (Comment on Performance/Potential), in pertinent part, contains the entry "Captain S____ is the senior Battle Captain of the JT2DC."

6.  In support of his application, the applicant provides the following documents.

	a.  U.S. Total Army Personnel Command, St. Louis, MO, memorandum, dated 4 May 1999, subject:  Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty, that shows the calendar year (CY) 1998 board that adjourned on 11 December 1998 selected the applicant for promotion to the rank of CPT/pay grade O-3 with a promotion eligibility date (PED) of 14 May 2000.  This document also shows that the applicant’s PED will be used in computing time in grade (TIG) for Reserve promotion to the next higher grade.

	b.  USAHRC, St. Louis, MO, memorandum, dated 3 July 2007, subject:  Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty, that shows the applicant was selected by the CY 2007 board that adjourned on 28 March 2007 for promotion to the rank of MAJ/pay grade O-4 with a PED of 6 May 2007.  This document also shows that the effective date of the promotion will be either of the following dates:  (1) date shown after A (i.e., 6 May 2007); (2) date Federal recognition is extended in the higher grade; or (3) date following the date Federal recognition is terminated in current Reserve grade.

	c.  State of New Jersey, Department of Military and Veterans Affairs, Trenton, NJ, Orders 324-036, dated 20 November 2007, that shows the applicant was promoted to the rank of MAJ/pay grade O-4 effective 16 November 2007 with a DOR of 7 May 2000 [sic].  The additional instructions of the orders show that the insignia of new grade will not be worn until receipt of Federal recognition.

	d.  NGB, Arlington, VA, memorandum, dated 7 December 2007, subject:  Promotion as a Reserve Commissioned Officer of the Army, that shows the applicant was promoted in the Reserve of the Army for service in the ARNG of the United States effective and with a DOR of 7 December 2007.

	e.  NGB, Washington, DC, Special Orders Number 307 AR, dated 7 December 2007, that announced the extension of Federal recognition of the applicant’s promotion to MAJ in the ARNG effective 7 December 2007.

	f.  USAHRC, St. Louis, MO, memorandum, dated 20 March 2008, subject:  Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty as a Result of an SSB, that shows the SSB 2007SS09R that adjourned on 28 September 2007 selected the applicant for promotion to the rank of MAJ/pay grade O-4 with a PED of 7 June 2007.  This document also shows that the effective date of the promotion will be either of the following dates:  (1) date shown after A (i.e., 7 June 2007); (2) date Federal recognition is extended in the higher grade; or (3) date following the date Federal recognition is terminated in current Reserve grade.

	g.  USAHRC, St. Louis, MO, memorandum (Information Copy), dated 20 March 2008, subject:  Promotion Consideration, that shows the applicant was selected by the Department of the Army (DA) Standby Advisory Board (STAB) which convened on 28 September 2007 that considered the applicant for promotion using the criteria established for the mandatory board which met in 2006.  This document shows that the Board recommended the applicant for promotion to the next higher permanent grade (i.e., MAJ/O-4) with a DOR of 7 June 2007.  This document also shows "[t]his is an "Information Copy Only" under Reserve Officer Personnel Management Act (ROPMA) and the earliest date [the applicant] can have is the approval date of the criteria year that [he was] recommended under."  This document further shows that since the applicant is a member of the ARNG, he should contact his State headquarters for issuance of his promotion order.

7.  In connection with the processing of this case, an advisory opinion was obtained from the Chief, Special Actions Branch, DA Promotions, USAHRC, St. Louis, MO.

	a.  The advisory official states that the applicant was selected for promotion by both the 2007 MAJ Army Promotion List DA Selection Board and also an SSB for CY 2006.  The applicant was given a DOR to MAJ of 7 December 2007 based on his selection by the mandatory board by the NGB; however, he was never given an adjusted DOR by the NGB based on his selection by the SSB.

	b.  The advisory official added that in the review of this case, an administrative error was found on the USAHRC, St. Louis, MO, memorandum, dated 20 March 2008.  This advisory official indicated that the applicant’s PED to MAJ was 6 May 2007, the approval date of the SSB criteria for CY 2006 was 7 June 2006, and both of these dates are prior to the date the applicant is requesting (i.e., 7 June 2007).  Accordingly, corrective action was taken and an "Information Copy" of the memorandum was issued; however, since the applicant is an ARNG officer and the promotion authority falls under the purview of the NGB, coordination with the NGB was recommended.

8.  In the further processing of this case, an advisory opinion was obtained from the Chief, Personnel Division, ARNG Readiness Center, Arlington, VA.  The Personnel Division Chief recommends approval of the applicant’s request for adjustment of his DOR for MAJ from 7 December 2007 to 7 June 2007.

	a.  The advisory official confirmed that the applicant was assigned to a MAJ position prior to selection for promotion by the DA SSB.  The advisory official provides a copy of State of New Jersey, Department of Military and Veterans Affairs, Trenton, NJ, Orders 242-071, dated 30 August 2007, that shows the applicant was transferred to the Environmentalist (3) Joint Force Headquarters NJ, Fort Dix, NJ, and assigned to position number 170-C, line 02, AOC 01A00, effective 30 September 2007.

	b.  The advisory official cites Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), chapter 3 (Board schedule and procedures), paragraph 3-19, as authority for the adjustment of the applicant’s DOR to MAJ.

9.  On 14 April 2009, the advisory official confirmed that the applicant had     been transferred from one MAJ position to another MAJ position effective          30 September 2007, but he had been in a MAJ position on 7 June 2007.

10.  On 6 March 2009, the applicant was provided a copy of the advisory opinions in order to have the opportunity to respond to their contents; however, as of this writing the applicant has failed to provide any response.

11.  Army Regulation 135-155 prescribes policy for selecting and promoting commissioned officers of both the ARNG of the United States and the USAR and warrant officers of the USAR.  This regulation also covers promotion eligibility and qualification requirements, board schedules and procedures, and procedures on processing selection board recommendations.

	a.  Chapter 2 (Promotion Eligibility and Qualification Requirements), Table 2-1 (TIG Requirements Commissioned Officers Other Than Commissioned Warrant Officers), in pertinent part, provides the minimum TIG as a CPT for promotion to MAJ is 4 years and the maximum TIG is 7 years.  Table 2-2 (Educational Requirements Commissioned Officers, Other Than Commissioned Warrant Officers), in pertinent part, shows the educational requirement for promotion from CPT to MAJ is the completion of any officer advanced course.

	b.  Paragraph 3-19 (SSBs) provides, in pertinent part, that SSBs convened under the ROPMA on and after 1 October 1996, will reconsider commissioned officers who were wrongly not considered and reconsider commissioned officers who were considered but not selected by mandatory promotion boards that convened on or after 1 October 1996.  These boards do not reconsider officers who were not considered or not selected by mandatory promotion boards that convened before 1 October 1996.  Promotion advisory boards/SSBs will convene to correct/prevent an injustice to an officer or former officer who was eligible for promotion but whose records through error either were not submitted to a mandatory promotion selection board for consideration or contained a material error when reviewed by the mandatory selection board.  Records of officers or former officers will be referred for special selection board action when the Office of Promotions (Reserve Component) determines that an officer was eligible for promotion consideration; however, the officer’s records were, through error, not submitted to a mandatory promotion selection board; or a review of a mandatory selection board finds that an officer’s records contained a material error.

	c.  Paragraph 4-17 (Promotion eligibility date and date of rank), defines promotion eligibility date as the earliest date on which an officer who is recommended and selected may be promoted to the next higher grade.  The DOR is the date the officer actually or constructively was appointed or promoted to a specific grade.  It is the date used to determine the relative seniority for officers holding the same grade.

	d.  Paragraph 4-21 (Effective dates), provides, in pertinent part, for the promotion of unit officers and states that the effective date and date of promotion will be no earlier than the approval date of the board, the date of Senate confirmation (if required), or the date the officer is assigned to the position, whichever is later (emphasis added).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his DOR for MAJ should be corrected (i.e., from 7 December 2007 to 7 June 2007) because he was awarded a DOR of 7 June 2007 based on his selection for promotion by the SSB that convened on 28 September 2007 using the 2006 promotion criteria.

2.  The evidence of record shows that the applicant was selected for promotion to the rank of CPT/pay grade O-3 with a PED of 14 May 2000.  It appears he transferred to the USAR to accept that promotion.

3.  The evidence of record shows that the applicant was selected for promotion to MAJ/pay grade O-4 by the board that adjourned on 28 March 2007 and he was awarded a PED of 6 May 2007.

	a.  Records show the NJARNG announced the applicant’s promotion to MAJ/
pay grade O-4 in the ARNG effective 16 November 2007.  Records also show the NGB announced the extension of Federal recognition of the applicant’s promotion to MAJ/pay grade O-4 in the ARNG effective 7 December 2007.

	b.  Records show an SSB adjourned on 28 September 2007 which selected the applicant for promotion to MAJ/pay grade O-4 with a PED of 7 June 2007.  Records also show a STAB convened on 28 September 2007 and recommended the applicant for promotion to the next higher permanent grade (i.e., MAJ/pay grade O-4) with a DOR of 7 June 2007.  The USAHRC advisory official subsequently indicated that an error had been discovered and the applicant's PED was actually 6 May 2007.  Nonetheless, the NGB advisory official recommends approval of adjustment of the applicant's DOR to 7 June 2007.  It is noted there is no evidence of record showing the applicant was assigned to an MAJ/pay grade O-4 position prior to that date.

4.  In view of all of the foregoing, it is concluded that the applicant’s promotion to MAJ was improperly delayed, which, in turn, caused the effective date and DOR of his promotion to MAJ to be delayed.  Therefore, as a matter of justice, it would be appropriate to correct the applicant’s records to show he was promoted to the rank of MAJ/pay grade O-4 effective and with a DOR of 7 June 2007.

BOARD VOTE:

____X____  ___X_____  ____X____  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing he was promoted to the rank of MAJ/pay grade O-4 effective and with a DOR of 7 June 2007; and

	b.  granting Federal recognition of his promotion to the rank of MAJ/pay grade O-4 effective and with a DOR of 7 June 2007.

2.  As a result of the above corrections, the Defense Finance and Accounting Service shall be notified of the Board's determination and remit payment of all back pay (i.e., pay and allowances, less any withholdings and/or deductions) that may be due as a result of the correction.



      ___________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)                                         AR20080013378



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ABCMR Record of Proceedings (cont)                                         AR20080013378



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