IN THE CASE OF:	     

		BOARD DATE:	         24 March 2009

		DOCKET NUMBER:  AR20080015088 


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, reconsideration of an earlier request to adjust his effective date for promotion to captain to 1 April 2005, restoration to active duty, and back pay and allowances.

2.  The applicant states, in effect, that he was fully qualified for promotion to captain on 1 April 2005.

3.  The applicant provides a Personnel Qualification Record – Officers/Warrant Officers, dated 24 August 2005; a DA Form 705 (Army Physical Fitness Test Scorecard), dated 13 April 2005; a DA Form 5500-R (Body Fat Content Worksheet), dated 13 April 2005; and a U.S. Army Human Resources Command Portal Reserve Record, printed on 8 August 2008, in support of this application. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070013057 on 22 May 2008.

2.  The applicant provided documentation which was not previously reviewed by the ABCMR; therefore, it is new evidence and as such warrants consideration by the Board.

3.  After having had prior enlisted service, the applicant graduated from the Army National Guard Officer Candidate School in August 1997.  He was appointed and commissioned as a second lieutenant.  He entered active duty in an Active Guard Reserve (AGR) status with the Washington Army National Guard (WAARNG) on 2 April 1998.

4.  The applicant was selected for promotion to first lieutenant effective 2 April 2000.  National Guard Bureau Special Orders Number 43 AR, dated 10 April 2000, extended the applicant's Federal recognition for promotion to first lieutenant effective 2 April 2000.

5.  On 8 April 2004, Human Resources Command (HRC), St. Louis, MO, notified the applicant he was considered but not selected for promotion to captain by the 2003 Reserve Component Selection Board.

6.  On 1 March 2005, the applicant was notified of his selection for promotion to captain by the 2004 Reserve Component Selection Board.  Promotion would be effective either 1 April 2005, the date Federal recognition was extended in the higher grade, or the date following the date Federal recognition was terminated in the current Reserve grade.

7.  On 4 August 2006, a DA Form 268 (Report to Suspend Favorable Actions) was initiated against the applicant for adverse action.

8.  On 3 October 2006, the applicant submitted a letter of resignation from the ARNG and requested transfer to the U.S. Army Reserve (USAR) Control Group (Reinforcement).

9.  On 5 October 2006, the applicant's voluntary resignation was approved effective 23 November 2006.  He was released from active duty and assigned to the USAR Control Group (Reinforcement), effective 23 November 2006.

10.  U.S. Army HRC-St. Louis, MO, Orders Number B-03-701891, dated 6 March 2007, announced the applicant's promotion to captain with an effective date and a date of rank of 23 November 2006.

11.  In the processing of the applicant's previous case, an advisory opinion was obtained from the Chief, Personnel Division, National Guard Bureau, Arlington, VA, who recommended the applicant's effective date of promotion remain the same, but his date of rank be adjusted to 1 April 2005.  The applicant reached his maximum time in grade on 1 April 2005.

12.  The applicant provided a Personnel Qualification Record – Officers/Warrant Officers which shows he was in compliance with the Army Physical Fitness Program as of February 2004.

13.  The applicant provided a DA Form 705 and a DA Form 5500-R which show that on 13 April 2005, he successfully completed the Army Physical Fitness Test and that he was in compliance with the Army Weight Control Program.

14.  The applicant also provided a U.S. Army HRC Portal Reserve Record which shows his security clearance investigation was completed on 8 November 2004 and that he was granted a secret security clearance effective 23 December 2005.

15.  Table 2-1 of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) states that the minimum years in the lower grade for promotion from 1LT to CPT is 2 years and the maximum years in the lower grade is 5 years. 

16.  Army Regulation 135-155, paragraph 4-15c, states officers serving in an AGR status must already be assigned/attached to a position in the higher grade.

17.  Memorandum, Office of the Deputy Chief of Staff, G-1, dated 10 February 2006, states that as an exception to the promotion requirements of Army Regulation 135-155, paragraphs 4-11a(3-5) and 4-13, officers recommended for promotion by mandatory promotion board will be promoted on the date they attain maximum time in grade in accordance with Title 10, U.S. Code, section 14304 or upon assignment to higher graded unit position, whichever is sooner, unless they are in a promotion delay status as defined in Army Regulation     135-155, paragraph 4-11c or 4-15c.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his effective date for promotion to captain should be adjusted to 1 April 2005 and that he be reinstated to active duty with back pay and allowances have been carefully reviewed.  However, as an AGR officer he was required to be in the higher position before being eligible for promotion.  There is no evidence of record and he provided none to show he was in a higher graded position.

2.  Evidence shows the applicant voluntarily resigned from the Army National Guard on 3 October 2006 and, upon assignment to the USAR on 23 November 2006, he was promoted to the rank of captain.  The earliest effective date the applicant can have for this promotion is 23 November 2006, the date he transferred to the USAR.  As a result, his records are correct as currently constituted.

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 to amend the decision of the ABCMR set forth in Docket Number AR20070013057, dated 22 May 2008.



      ________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)                                         AR20080015088



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ABCMR Record of Proceedings (cont)                                         AR20080015088



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