IN THE CASE OF:	  

		BOARD DATE:	  19 March 2009

		DOCKET NUMBER:  AR20080014220 


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, that her date of rank (DOR) to major (MAJ) be changed from 5 August 2008 to November 2007. 

2.  The applicant states, in effect, she received guidance from her unit S-1 that the deadline for submitting a unit vacancy promotion was 31 October 2007, and she submitted her packet on 19 October 2007.  She states in December 2007, she inquired about the status of her promotion packet and was informed that the board had met on 5 October 2007.  She states that subsequently she was selected for promotion by the Department of Army (DA) Reserve Component Selection Board (RCSB) that met in January 2008.  Her promotion packet was submitted to the National Guard Bureau (NGB) on 19 May 2008; however, she was informed that her promotion packet had not been submitted until July 2008, and this resulted in her promotion date to MAJ being established as 5 August 2008.  

3.  The applicant provides the following documents in support of her application:  Officer Personnel Management Branch DA Selection Promotion Checklists; Headquarters, 36th Sustainment Brigade Memorandum, dated 17 May 2008; National Guard Bureau (NGB) Memorandum dated 5 August 2008; a DA Form 705 (Army Physical Fitness Test Scorecard); a DA Form 7349 (Initial Medical Review Annual Medical Certificate); a DD Form 2808 (Report of Medical 

Examination); a DA Form 2807-2 (Report of Medical History); Person Summary; and DA Boards Selection Results.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving as a MAJ in the Texas Army National Guard (TXARNG). 

2.  A Federal Recognition Order Processing Report, dated 2 December 2008, shows that promotion packets submitted by the applicant that were received on
2 and 19 June 2008 were incomplete and as a result were returned without action.  It also shows the completed promotion packet on the applicant confirming her eligibility for promotion was resubmitted on 24 July 2008, and was accepted and approved on 28 July 2008.  This report shows her captain (CPT) date of rank as 30 May 2002.

3.  On 5 August 2008, an NGB memorandum authorized the applicant's promotion to MAJ in the Reserve of the Army for service in the ARNG, effective and with a DOR of 5 August 2008, and NGB Special Orders Number 197 AR authorized the applicant's Federal recognition as a MAJ, effective 5 August 2008. 

4.  During the processing of this case, an advisory opinion was obtained from the Chief, Personnel Division, NGB.  This official stated that a unit vacancy promotion packet on the applicant was not received by the NGB prior to the 
10 October 2007 deadline for consideration for promotion under the position vacancy system.  The official further states that the promotion packets submitted for the applicant and received by the NGB on 2 and 19 June 2008 were incomplete and that the completed promotion packet was finally submitted on
24 July 2008, and was received and approved by the NGB on 28 July 2008.  As a result, the NGB Surgeon's Division Office approved her promotion with an effective date of 5 August 2008.  This official finally recommended the applicant's request that her effective date of promotion to MAJ be backdated to November 2007 be denied.

5.  On 24 December 2008, a copy of this advisory opinion was forwarded to the applicant in order for her to have the opportunity to rebut its contents.  To date, no response has been received from the applicant.

6.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) provides policy for selecting and promoting 

commissioned officers of both the Army National Guard of the United States (ARNGUS) and the U.S. Army Reserve (USAR), and warrant officers of the USAR.  Chapter 2 (Promotion Eligibility and Qualification Requirements) contains promotion eligibility criteria.  

7.  Paragraph 2-10 of the Reserve officer promotion regulation states, in pertinent part, that mandatory selection boards convene each year for consideration of Army National Guard of the United States and U. S. Army Reserve officers on the Reserve Active Status List (RASL) for promotion to CPT through lieutenant colonel (LTC) without regard to vacancies in the next higher grade.  First consideration for promotion will occur well in advance of the date the officer will complete the maximum years in grade (MYIG).  Table 2-1 (Time in Grade Requirements Commissioned Officers, Other Than Commissioned Warrant Officers) outlines time in grade requirements for promotion and states, in pertinent part, that the minimum time in grade as a captain for promotion to MAJ is 4 years and the maximum time in grade is 
7 years.  

8.  National Guard Regulation 600-100 provides procedures for processing all applications for Federal Recognition for commissioned officers.  Paragraph 8-4 states, in pertinent part, that ARNG commissioned officers will be mandatorily considered for promotion as Reserve commissioned officers of the Army when they meet the minimum promotion service requirements prescribed for the zone of consideration.  Paragraph 8-7 states, in pertinent part, that to be considered for Federal recognition and subsequent Reserve of the Army promotion to fill a unit vacancy, an ARNG commissioned officer must be meet the following requirements: be in an active status and meet medical standards, height and weight standards, time in grade requirement, time in service requirement, minimum military education requirement, minimum civilian education requirements, and Army Physical Fitness Test (APFT) requirement.  

9.  Paragraph 8-16d of National Guard Regulation 600-100 states, in pertinent part, that upon notification from the Commanding General, Army Reserve Personnel Command (AR-PERSCOM), that an officer has been selected for promotion, and he or she is being promoted in the State, a promotion packet containing a copy of AR-PERSCOM memorandum announcing promotion selection, copy of state promotion orders, evidence of completion of required civilian education, and a copy of current medical examination and Annual Medical Certificate will be forwarded to the Chief, NGB.


10.  Title 10, U.S. Code, section 14308(f) states that the effective date of a promotion of a Reserve commissioned officer in the Army who is extended Federal recognition in the next higher grade in the ARNG shall be the date in which such Federal recognition in that grade is so extended.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that her promotion effective date to MAJ should be adjusted to November 2007 was carefully considered.  However, there is insufficient evidence to support this request.

2.  By regulation, unit vacancy promotions are within the purview of the State and NGB.  When an officer has been selected for promotion, and he or she is being promoted in the State for a unit vacancy, the officer must meet all promotion requirements and a promotion packet containing all required documents must be forwarded to the Chief, NGB.  The effective date of a promotion will be the date Federal recognition in the higher grade is so extended.  

3.  The advisory opinion indicated that the applicant missed the cutoff date for providing her unit vacancy promotion packet.  Based  on her selection for promotion by the DA Board in June 2008, a promotion packet was submitted to the Chief, NGB on 2 June 2008; however, this packet was incomplete and returned to the State.  On 19 June 2008, her packet was resubmitted and again returned due to being incomplete.  Subsequently, on 24 July 2008, the applicant's packet was resubmitted, accepted and approved by the NGB Surgeon's Division Office on 28 July 2008, which confirmed her eligibility for the mandatory promotion.  The Chief, NGB processed the applicant's Federal Recognition in a timely matter (within 8 days of approval) and published orders granting the applicant's promotion on 5 August 2008.  

4.  Given the applicant had not exceeded the maximum years in grade for promotion to MAJ, which is 7 years and because the effective date for a promotion is the date Federal recognition is granted, there is an insufficient evidentiary basis to support granting the requested relief in this case. 

5.  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 this 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)                                         AR20080014220



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ABCMR Record of Proceedings (cont)                                         AR20080014220



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