BOARD DATE:	  18 August 2009

		DOCKET NUMBER:  AR20080016021 


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 that his date of rank to major be corrected to the date of his Department of Army (DA)-selection promotion effective date of 27 June 2006.

2.  The applicant states he was an Active Component DA-selectee for promotion effective 27 June 2006 and transferred to the Texas Army National Guard (ARNG) on 20 August 2006 with no break in service.  He transferred into a major's position but did not receive Federal recognition and was not promoted to major until 22 August 2008 with a promotion eligibility date (PED) of 31 July 2007.

3.  The applicant provides copies of 21 February 2006 reassignment orders, 13 July 2006 U.S. Army Human Resources Command (HRC) majors' promotion list memorandum, 21 August 2006 full-time National Guard duty orders, 3 July 2007 HRC promotion orders, and 22 April 2008 Federal recognition orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant, a prior-enlisted Soldier, was commissioned as a U.S. Army Reserve (USAR) second lieutenant in the Quartermaster Corps on 21 December 1996 and entered extended active duty.

2.  Headquarters, III Corps and Fort Hood, Orders 052-0159, dated 21 February 2006, reassigned the applicant to the transition center for discharge from the Active Component effective 19 August 2006.
3.  On 13 July 2006, HRC released a memorandum announcing the results of the Fiscal Year 2006 (April) Active Component majors' promotion board results with an attached addendum which shows the applicant was selected for promotion to major.

4.  The applicant was discharged from the Active Component effective 19 August 2006 and transferred to the Texas ARNG with concurrent order to full-time National Guard duty in an Active Guard Reserve (AGR) status effective 20 August 2006 in the rank of captain.  The orders appointing the applicant in the ARNG show he was assigned to a major's position.

5.  A 3 July 2007 HRC memorandum states that the applicant was selected for promotion as a Reserve commissioned officer not on active duty [Reserve Component] by a board that adjourned on 28 March 2007.  The memorandum states his effective date of promotion would be 31 July 2007 or the date he is extended Federal recognition in the higher grade and his PED would be 31 July 2007.

6.  National Guard Bureau Special Orders Number 103 AR, dated 22 April 2008, show that the applicant received Federal recognition effective 22 April 2008 with a PED of 31 July 2007.

7.  In the development of this case an advisory opinion was obtained from the Acting Chief, Personnel Division, National Guard Bureau.  The National Guard Bureau recommended that the applicant's request be denied.  The applicant was a USAR officer at the time of his initial selection for promotion to major.  He transferred to the Texas ARNG and was assigned to a captain's position on 20 August 2006.  It was noted that National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions), paragraph 8-2, requires that an officer remain in the same vacancy in which he or she was recommended for promotion until Federal recognition orders are published.  Further National Guard Regulation 600-100, paragraph 8-6b, states that an AGR-controlled grade authorization must be available prior to promotion of an AGR officer in any grade above captain.

8.  A copy of the opinion was referred to the applicant.  There is no indication he responded to or rebutted the opinion.

9.  Title 10, U.S. Code, section 14317c, provides that an officer who is on the active-duty list and is on a promotion list and who before being promoted is removed from the active-duty list and placed on the Reserve active-status list of the same Armed Force and in the same competitive category shall be placed on an appropriate promotion list.
10.  National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions) provides in paragraph 8-1 that the promotion of officers in the Army National Guard is a function of the State.  As in original appointments, a commissioned officer promoted by State authorities has a State status in the higher grade under which to function.  However, in order to be extended Federal recognition in the higher grade, the officer must have satisfied the requirements.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he was an Active Component DA-selectee for promotion on 27 June 2006 and transferred to the Texas ARNG in a major's position on 20 August 2006 with no break in service.

2.  The applicant was on the Active Component promotion list at the time he transferred to the ARNG.  As such he was to have been placed on the Reserve promotion list at the time of his transfer.  This does not appear to have happened.

3.  The applicant was placed in a major's position at the time he entered the ARNG and as such met all criteria for promotion as of that date, 20 August 2006, except for having received Federal recognition in the higher grade.

4.  In similar cases the Board has been advised that it takes 90 to 120 days for Federal recognition to be processed.

5.  Accordingly, it would be in the interest of justice to correct his date of rank to major to 20 August 2006 and afford him an effective date of promotion 90 days later.

6.  There is insufficient evidence to justify a PED earlier than 20 August 2006.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ____x___  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 partial relief.  As a result, the Board recommends that all State Army National Guard records and Department of the Army records of the individual concerned be corrected by showing the applicant was promoted to the rank of major with a date of rank of 20 August 2006 and granted Federal recognition with an effective date of 19 November 2006 with entitlement to retroactive pay and allowances.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application for a PED earlier than 20 August 2006.



      ____________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)                                         AR20080016021



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ABCMR Record of Proceedings (cont)                                         AR20080016021



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