IN THE CASE OF:	  

		BOARD DATE:	  	   8 JANUARY 2009

		DOCKET NUMBER:  AR20080015847 


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 his request pertaining to the effective date of his promotion to the grade of Colonel (COL)/pay grade O-6.

2.  The applicant states, in effect, the Army Board for Correction of Military Records (ABCMR), Docket Number AR20080000452, dated 17 July 2008, granted him partial relief by correcting his records to show his date of rank (DOR) for promotion to COL (O-6) as 17 February 2005; however, the Board denied amending the effective date of his promotion to 17 February 2005.

     a.  The applicant states the Board validated his assignment as the Deputy Director, Mobilization Directorate, Office of the Secretary of Defense (OSD), which was an O-6 position.  He also states the ABCMR incorrectly used an administrative Title 32, United States Code (USC), State Table of Distribution and Allowances (TDA) as the authorization document instead of the functional Title 10, USC, OSD TDA.  The applicant adds the Title 32, USC, State TDA is an administrative tool and does not reflect the position and duty in which he was actually serving and should not be used as the authoritative document for a Title 10, Active Guard Reserve (AGR) officer.

     b.  The applicant states, in a case with the exact same set of circumstances that delayed the officer's promotion to COL (O-6), the Board granted full relief to the officer correcting both his DOR and effective date to 17 February 2005.  He adds that the decision was based on the officer’s assignment to a valid O-6 position on the Title 10, USC, OSD TDA, at the time of Senate confirmation.  He adds the officer’s South Dakota Army National Guard (ARNG) State promotion orders were published on 29 August 2005, only after the National Guard Bureau (NGB) provided an O-6 authorization to the State of South Dakota, which was the same process the State of Idaho completed when producing the applicant's State promotion orders on 8 June 2007.

     c.  The applicant concludes by stating a review of previous ABCMR cases and in the cited officer’s case, in particular, will show the Board’s findings in his case are not consistent with the ABCMR’s findings in those other cases, although the circumstances and conditions are identical.  He requests full relief by correcting the effective date of his promotion to COL (O-6) to 17 February 2005, along with all back pay and allowances due as a result of the correction.

3.  The applicant provides a copy of ABCMR, Docket Number AR20080003954, dated 11 June 2008, and State of South Dakota, Headquarters of Military and Veterans Affairs, Office of the Adjutant General, Rapid City, South Dakota, Orders 241-501, dated 29 August 2005.

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 in Docket Number AR20080000452 on 17 July 2008.

2.  The applicant’s military service records show he was promoted to lieutenant colonel (LTC)/pay grade O-5, effective 6 December 2000.

3.  The applicant was ordered to active duty in an AGR status, in the grade of LTC (O-5), with a reporting date of 11 August 2003 and assigned to a COL (O-6) position in the OSD.

4.  The applicant was considered and selected for promotion to COL by the
2004 Reserve Components Selection Board that adjourned on 6 August 2004. The board received Senate confirmation, effective 17 February 2005.

5.  The State of Idaho, Military Division, Boise, Idaho, promoted the applicant to COL (O-6), effective 7 June 2007, subject to confirmation of Federal Recognition.  On 26 June 2007, Headquarters, NGB, Washington, District of Columbia, issued orders extending the applicant Federal Recognition for promotion to COL (O-6) in the ARNG, effective and with a promotion eligibility date (PED) of 25 June 2007.

6.  On 17 July 2008, in response to the applicant’s request for correction of his records, the ABCMR granted the applicant partial relief and directed correction of his records to show his DOR for COL (O-6) was 17 February 2005.  However, the Board denied the portion of the applicant’s request pertaining to correction of the effective date of his promotion to 17 February 2005.

7.  In support of his request for reconsideration of his application, the applicant provides the following documents.

     a.  ABCMR, Docket Number AR20080003954, dated 11 June 2008, that was previously introduced and summarized in the applicant’s request and statement. This documentation contains a copy of the advisory opinion pertaining to that particular officer's case.  The advisory opinion was rendered by the Chief, Personnel Division (NGB) who also rendered the advisory opinion that was considered in the applicant’s case.  Of particular note, the advisory opinion states that National Guard Regulation (NGR) 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions), Chapter 8 (Promotion of Other Than General Officers), paragraph 8-21c(1)(2), provides that “States are only authorized to promote Title 10 AGR officers and continue them on active duty when (1) the officer is eligible and qualified for promotion and (2) the officer is serving in a higher graded MTOE/TDA [Modified Table of Organization and Equipment/Table of Distribution and Allowances] position and the ARNG Staff Management Office has authorized an appropriate grade to be transferred to the respective State upon promotion.

     b.  The NGB advisory official recommended the officer’s Federal Recognition effective date be adjusted to 17 February 2005, with entitlement to all back pay and allowances as a result of the adjustment.  The recommendation was based on the Headquarters, NGB, Arlington, Virginia, Orders that ordered the officer to active duty in an AGR status, in the grade of LTC (O-5), and assigned him to an authorized COL (O-6) position.

     c.  State of South Dakota, Department of Military and Veterans Affairs, Office of the Adjutant General, Rapid City, South Dakota, Orders 241-501, dated
29 August 2005, in pertinent part, show the officer was promoted to COL (O-6), effective 29 August 2005, subject to confirmation of Federal Recognition.  The orders were amended to show an effective date of 7 September 2005 based on Headquarters, NGB’s confirmation of the officer’s Federal Recognition.

8.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes 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.  It also covers promotion eligibility and qualification requirements, board schedules and procedures, and procedures on processing selection board recommendations.  The regulation, in pertinent part, provides that mandatory selection boards will be convened each year to consider USAR and ARNG officers in an active status for promotion to captain through colonel.

     a.  Paragraph 4-10 (Promotion requiring U.S. Senate confirmation) specifies that officers selected for promotion to the grade of colonel require Senate confirmation in accordance with Title 10, United States Code, section 12203(a).

     b.  Paragraph 4-15 (General) states, in pertinent part, commissioned officers and warrant officers serving in an AGR status may be promoted to or extended Federal recognition in a higher grade provided the duty assignment/attachment of the officer requires a higher grade than that currently held by the officer.  The effective date of promotion of AGR officers will be as shown in paragraph 4-21.  AGR officers who have been selected for promotion and are not assigned/ attached to a position calling for a higher grade will receive a delay of promotion without requesting such action.

     c.  Paragraph 4-21 (Effective dates) states, in pertinent part, the effective date of promotion may not precede the date of the promotion memorandum.  An officer is promoted after selection if all qualifications for promotion are met.  In no case will the date of rank or effective date of promotion be earlier than the date the board is approved or, if required, the date of Senate confirmation. Subparagraph d (Promotion of AGR officers) provides that AGR officers selected by a mandatory board will be promoted provided they are assigned/attached to a position in the higher grade.  An AGR officer who is selected for promotion by a mandatory promotion board, but who is not assigned/attached to a position in the higher grade will be promoted on the date of assignment/attachment to a higher graded position or the day after release from AGR status.  The date of rank will be the date the officer attained maximum time in grade or the date on which assigned/attached to a position in the higher grade, whichever is earlier.

     d.  Table 2-1 (Time in grade requirements commissioned officers, other than commissioned warrant officers), in pertinent part, shows that for promotion to the grade of COL/O-6, the minimum years in lower grade (i.e., LTC/O-5) is 3 years and maximum years in lower grade is normally 5 years, subject to the needs of the Army.

9.  Title 10, United States Code (USC), Subtitle E (Reserve Components), Chapter 1405 (Promotions), section 14311 (Delay of promotion:  involuntary), subsection e, provides for delay because of limitations on officer strength in grade or duties to which assigned.  This document provides, in pertinent part,
(1) under regulations prescribed by the Secretary of Defense, the promotion of a reserve officer on the reserve active-status list who is serving on active duty, or who is on full-time National Guard duty for administration of the reserves or the National Guard, to a grade to which the strength limitations of section 12011 of this title apply shall be delayed if necessary to ensure compliance with those strength limitations.  The delay shall expire when the Secretary determines that the delay is no longer required to ensure such compliance.  (2) The promotion of an officer described in paragraph (1) shall also be delayed while the officer is on duty described in that paragraph unless the Secretary of the military department concerned, under regulations prescribed by the Secretary of Defense, determines that the duty assignment of the officer requires a higher grade than the grade currently held by the officer.  (3) The date of rank and position on the reserve active-status list of a reserve officer whose promotion to or Federal recognition in the next higher grade was delayed under paragraph (1) or
(2) solely as the result of the limitations imposed under the regulations prescribed by the Secretary of Defense or contained in section 12011 of this title shall be the date on which the officer would have been promoted to or recognized in the higher grade had such limitations not existed.

10.  Title 10, USC, Subtitle E, Chapter 1201 (Authorized Strengths and Distribution in Grade), section 12006 (Strength limitations:  authority to waive in time of war or national emergency), provides that in time of war, or of national emergency declared by Congress or the President, the President may suspend the operation of any provision of section 12003, 12004 or 12005 of this title.  So long as any such war or national emergency continues, any such suspension may be extended by the President. Any such suspension shall, if not sooner ended, end on the last day of the two-year period beginning on the date on which the suspension (or the last extension thereof) takes effect or on the last day of the one-year period beginning on the date of the termination of the war or national emergency, whichever occurs first.

11.  Executive Order 13223, dated 14 September 2001, issued by President George W. Bush, Ordering the Ready Reserve of the Armed Forces to Active Duty and Delegating Certain Authorities to the Secretary of Defense and the Secretary of Transportation, in pertinent part, shows the President invoked to the full extent provided by the terms thereof:  section 527 of Title 10, USC, to suspend the operation of sections 523, 525, and 526 of that title, regarding officer and warrant officer strength and distribution; and sections 123, 123a, and 12006 of Title 10, USC, to suspend certain laws relating to promotion, involuntary retirement, and separation of commissioned officers; end strength limitation; and Reserve component officer strength limitations.

12.  The online Federal Register shows Executive Order 13223 was published and proclaimed in the Federal Register by Proclamation 7463 (66 FR 48201),
14 September 2001; with Notice of 12 September 2002 (67 FR 58317); Notice of 10 September 2003 (68 FR 53665); Notice of 10 September 2004
(69 FR 55313); and Notice of 8 September 2005 (70 FR 54229).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the effective date of his promotion to the grade of COL (O-6) should be corrected to 17 February 2005 and request for payment of back pay and allowances associated with the correction was carefully considered.

2.  The evidence of record shows the applicant was assigned to an authorized colonel position, effective 11 August 2003.  The evidence of record also shows he was considered and selected for promotion to colonel by the 2004 Reserve Components Selection Board that received Senate confirmation on 17 February 2005.  The applicant was promoted to COL (O-6) by the Idaho ARNG on 7 June 2007 and extended Federal Recognition by the ARNG for promotion to COL
(O-6), effective and with a promotion eligibility date (PED) of 25 June 2007.  The evidence of record further shows that the ABCMR corrected the applicant’s
DOR to the grade of COL (O-6) to 17 February 2005; however, the Board denied amending the effective date of the applicant's promotion.

3.  Based on the applicant’s assignment to an authorized colonel position prior to Senate confirmation of the 2004 Reserve Components Selection Board, he was eligible for and qualified for promotion on that date.  The evidence of record also shows that the President of the United States had suspended the provisions of law regarding officer strength and distribution at the time the U.S. Senate confirmed the applicant's promotion to the grade of COL (O-6).  The reason(s) for the delay in the applicant's promotion is/are not clear; however, there is no evidence the promotion was delayed due to the fault of the officer.  Therefore, it is concluded that, as a matter of law, the applicant’s records should be corrected to show he was promoted to the grade of COL (O-6), effective and with a DOR of 17 February 2005, with entitlement to appropriate back pay and allowances.

4.  In view of the foregoing, the applicant’s Idaho ARNG and Department of the Army, records should be corrected as recommended below.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

____X____  ____X____  ____X____  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20080000452, dated 17 July 2008.  As a result, the Board recommends that all State Army National Guard and Department of the Army records of the individual concerned be corrected by:

     a.  voiding the applicant's Federal Recognition and orders promoting him to colonel, effective 27 June 2007, and declare them to be of no force or effect; and 
      
     b.  showing that the applicant was extended Federal Recognition in the ARNG and promoted to colonel/pay grade O-6, with a promotion effective date and date of rank of 17 February 2005, with payment of all back pay and allowances due as a result of this adjustment.
 



      _______ _   _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)                                         AR20080015847



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ABCMR Record of Proceedings (cont)                                         AR20080015847



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