IN THE CASE OF:	

		BOARD DATE:	        21 April 2009

		DOCKET NUMBER:  AR20080016143 


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 her date of rank (DOR) for captain be adjusted from 30 April 2008 to 30 August 2007. 

2.  The applicant states, in effect, that she was denied the right to apply for the rank of captain on her proper date of eligibility due to an error in her DOR for first lieutenant.  She contends that she was required to wait until February 2008 to submit her promotion packet for promotion to captain.  She claims her DOR for first lieutenant was backdated from 15 February 2006 to 30 August 2005 but the orders were not published until 5 May 2008.  At that time she had already applied for and was promoted to captain.  She states that had she been properly promoted to first lieutenant, her DOR for captain would have been with that of her peers.  

3.  The applicant provides promotion orders, National Guard Bureau orders, and a copy of her Army Board for Correction of Military Records (ABCMR) Proceedings (Docket Number AR20070011814) in support of her application. 

CONSIDERATION OF EVIDENCE:

1.  On 10 April 2008, the ABCMR granted relief of the applicant’s prior application by showing she was promoted as a Reserve Officer of the Army to the rank of first lieutenant with an effective date and date of rank of 30 August 2005 and correcting her records to show she was granted Federal Recognition as a first lieutenant effective 30 August 2005.

2.  Military Department of Arkansas Office of The Adjutant General (TAG) Orders 
046-838, dated 15 February 2008, show the applicant was promoted to captain effective 30 April 2008.    

3.  Departments of the Army and the Air Force, National Guard Bureau, Special Orders Number 113 AR, dated 5 May 2008, show the applicant was granted Federal Recognition in the Army National Guard for promotion to captain  effective 30 April 2008.   

4.  In the processing of this case, a staff advisory opinion was obtained from the National Guard Bureau.  That office recommends disapproval of the applicant’s request based on promotion guidance from National Guard Regulation 600-100 and the Reserve Officer Personnel Management Act (ROPMA) due to the fact that her promotion was based on a position vacancy promotion.

5.  A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  The applicant did not respond within the given timeframe.

6.  National Guard Regulation 600-100 (Commissioned Officer-Federal Recognition and Related Personnel Actions) prescribes policies and procedures governing, in part, the appointment, Federal Recognition, and separation of commissioned officers of the Army National Guard.  Paragraph 8-2 states the effective date of promotion for an Army National Guard commissioned officer who is promoted in the State is the dated the Chief, National Guard Bureau extends Federal Recognition unless otherwise provided by law.  An officer's DOR as a reserve of the Army will be determined by his or her duty status, type of selection board which selected the officer, and delay status (if applicable), unless otherwise provided by law.  Additionally, paragraph 8-6c states promotion will be accomplished only when the officer is assigned to an appropriate Modified Table of Organization or Table of Distribution and Allowances and Equipment vacancy in which he or she has been recommended for promotion until Federal Recognition orders are published.

7.  The ROPMA, provides, in pertinent part, that the effective date of promotion and DOR for an officer who is promoted under the position vacancy promotion system will be the date the Chief, National Guard Bureau extends Federal Recognition based on the approved scroll list from the Secretary of Defense.  Promotion effective date is not the date of appointment in the position or the date of the State Federal Recognition board.  Scroll lists take approximately 90 to 
120 days to be approved by the Secretary of Defense due to it has to be processed through the following offices before it is approved by the Secretary of Defense:  Office of the Deputy Chief of Staff for Personnel, Office of the Judge Advocate General, Director of Military Personnel Management, Deputy Chief of Staff for Personnel, Assistant Secretary of the Army, Director of the Army Staff, Secretary of the Army, Office of the Secretary of Defense, General Counsel of the Department of Defense, Deputy Assistant Secretary Defense Military Personnel Policy, Deputy Assistant Secretary of Defense Force Management Policy, and the Under Secretary of Defense personnel and Readiness.   

8.  Table 2-1 of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) states that the minimum time in grade as a first lieutenant for promotion to captain is 2 years and the maximum time in grade is 5 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that her DOR to captain should be adjusted to 
30 August 2007 was carefully considered and determined to be without merit.  

2.  Although the ABCMR previously adjusted the applicant's DOR to first lieutenant, this adjustment has no impact on the TAG of Arkansas' decision to select the applicant for a unit vacancy promotion to captain.  

3.  There is no evidence and the applicant has failed to provide sufficient evidence that it was the intent of the TAG of Arkansas to promote her to captain earlier than the unit vacancy promotion she received.  Additionally, the applicant's name was not on an approved scroll list from the Secretary of Defense prior to her current captain promotion.  Therefore, there is no basis for granting the applicant's request. 

4.  However, based on the fact that this promotion is a unit vacancy promotion under the jurisdiction of the TAG of Arkansas, the applicant still has the right to appeal to the TAG of Arkansas or the Chief, National Guard Bureau for relief. 
 
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)                                         AR20080016143



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ABCMR Record of Proceedings (cont)                                         AR20080016143



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