IN THE CASE OF:	  

		BOARD DATE:	  4 June 2009

		DOCKET NUMBER:  AR20080015532 


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 his date of rank (DOR) for promotion to the rank of captain (CPT) be adjusted from January 2007 to 2006. 

2.  The applicant states that when he separated from the Regular Army in June 2005, he was a promotable first lieutenant who had been selected for promotion to the rank of captain with a sequence number of "3."  He goes on to state that he joined the Maryland Army National Guard (MDARNG) in February 2006 for a captain's slot and should have been promoted.  However, the MDARNG denied his promotion and decided to hold its own board.  He further states that he was serving in Afghanistan and still trying to get promoted and it was not until he wrote to his congressman that he was finally promoted.  He also states that he would have been promoted a year earlier had the MDARNG followed the appropriate regulations.

3.  The applicant provides a partial copy of the Fiscal Year (FY) 2005 Captain Army Competitive Category Promotion Selection List; a memorandum from the National Guard Bureau regarding the promotion process for Department of the Army Select Officers; his automated personnel qualification record; orders assigning him to a MDARNG unit, effective 24 January 2006; promotion orders to captain, effective 20 October 2006; Federal Recognition orders, effective
17 January 2007; electronic mail (email) traffic regarding his promotion; and two pages from Army Regulation 135-155. 



CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 1 March 1990 and served on active duty as an M1 Abrams Armor Crewman until he was honorably released from active duty (REFRAD) on 20 June 1992, due to completion of required service.  He was transferred to the United States Army Reserve Control Group to fulfill his statutory service obligation.

2.  He enlisted in the MDARNG on 23 September 1993 and served as a special forces medical sergeant until he received an interstate transfer to the North Carolina Army National Guard on 20 January 1998.

3.  The applicant enlisted in the Regular Army on 19 February 2002 for a period of 3 years under the officer candidate school (OCS) enlistment option and on 19 June 2002 after completing the training he was honorably discharged to accept a commission.

4.  On 20 June 2002, he was commissioned as a USAR second lieutenant with a concurrent call to active duty as a signal corps officer.  He was promoted to the rank of first lieutenant on 20 December 2003.

5.  On 24 January 2005, the FY05 Promotion List for Captain, Army Competitive Category was released and the applicant had a sequence number of 3,660.

6.  On 19 June 2005, the applicant was honorably released from active duty due to completion of required service.  He was then transferred to a West Virginia Army National Guard (WVARNG) Special Forces company.

7.  On 24 January 2006, the applicant transferred to the MDARNG for assignment as a commander (captain's position) of a headquarters company at Aberdeen Proving Ground, Maryland.  He was ordered to active duty in support of Operation Enduring Freedom, on 25 March 2006 and on 20 October 2006. The MDARNG published orders promoting him to the rank of CPT, effective      20 October 2006.  However, he was not granted Federal Recognition until         17 January 2007; therefore, his DOR was changed to 17 January 2007.

8.  In the processing of this case a staff advisory opinion was obtained from the National Guard Bureau (NGB).  Officials at the NGB opine that the applicant was not branch qualified (Special Forces) when he transferred to the WVARNG on 20 June 2005, in a captain's position.  However, when he transferred to the MDARNG on 24 January 2006, he met all of the criteria and should have been promoted.  Officials at the NGB opine that his DOR should be changed to 24 January 2006 and that he is entitled to all back pay and allowances as a result of this adjustment.  The advisory opinion was provided to the applicant for comment and he concurred with the opinion as written.

9.  Army Regulation 135-155 provides policy for selecting and promoting commissioned officers of both the Army National Guard (ARNG) and the USAR.  Paragraph 2-4b provides that an officer on the active duty list (ADL) who has been selected for promotion but who has not been promoted by the time the officer transfers to the Reserve active status list (RASL) in the same competitive category, will be placed on an appropriate Reserve of the Army promotion list.  The effective date of promotion and DOR will be the same as if the officer had been selected to the same grade by a promotion board for RASL officers. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DOR for promotion to the rank of CPT should be adjusted from 17 January 2007 to 2006 has been considered and appears to have merit.

2.  The applicant was selected for promotion to the rank of CPT while serving on active duty and while on the ADL.  Accordingly, he should have been integrated on a Reserve of the Army promotion list when he was transferred to the ARNG and promoted when he met all of the criteria for promotion.

3.  The available evidence shows that the applicant was assigned to a CPT position and was branch qualified on 24 January 2006; however, he was not promoted to the rank of CPT until 20 October 2006 and then the date was further adjusted to 17 January 2007, when Federal Recognition was granted in Special Orders Number 11 AR, dated 17 January 2007.

4.  Accordingly, the applicant was unjustly denied a promotion that he was entitled to receive as well as the monetary benefits associated with such a promotion.  Therefore, it would be in the interest of justice at this time to adjust his DOR for promotion to CPT to show that he was promoted on 24 January 2006 and that he was granted Federal Recognition for promotion to the rank of CPT on 24 January 2006 as well.

5.  Additionally, the applicant is entitled to receive all back pay and allowances due as a result of the adjustment of his DOR. 





BOARD VOTE:

____X____  ____X____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all State ARNG records and Department of the Army records of the individual concerned be corrected by amending Federal Recognition Special Orders Number 11 AR, dated 17 January 2007, to show he was granted Federal Recognition as a Captain, effective 24 January 2006, and paying him all back pay and allowances due as a result of the above 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)                                         AR20080015532



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ABCMR Record of Proceedings (cont)                                         AR20080015532



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