BOARD DATE:	  3 November 2009

		DOCKET NUMBER:  AR20080016297 


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) as a first lieutenant (1LT) be adjusted so as to make him eligible for promotion to the rank of captain (CPT) and that he be promoted to the rank of CPT immediately.

2.  The applicant states, in effect, that his recent re-appointment DOR to 1LT     (1 May 2008) should be adjusted to reflect his time spent as a 1LT in the United States Army Reserve (USAR) and that he should be promoted to the rank of captain (CPT).  He goes on to state that in 1994 he was transferred to the USAR Control Group (Individual Ready Reserve) while serving as a 1LT with a masters degree.  However, his records indicated he had 1 year of college and he was honorably discharged due to being non-selected (twice) for promotion.  He goes on to state that he enlisted in the National Guard and entered the Warrant Officer Program.  While serving as a chief warrant officer two (CW2) he was reappointed to the rank of 1LT; however, his original DOR as a 1LT (30 May 1993) was not factored into his reappointment and he was given a new DOR of 1 May 2008, thus making him ineligible for promotion to the rank of CPT until 2010. 

3.  The applicant provides a copy of his original Federal Recognition orders promoting him to the rank of 1LT, effective 30 May 1993; a copy of his orders discharging him from the USAR, on 8 July 1999; and a copy of his most recent appointment orders to the rank of 1LT, effective 1 May 2008.




CONSIDERATION OF EVIDENCE:

1.  On 15 June 1990, the applicant was commissioned as a 2LT in the Minnesota Army National Guard (MNARNG).  He was promoted to the rank of 1LT on 30 May 1993.  He remained in the MNARNG until he was honorably discharged on 19 August 1994 and was transferred to the USAR Control Group (Reinforcement) to complete his statutory service obligation.

2.  On 8 July 1999, the applicant was honorably discharged from the USAR in the rank of 1LT due to being non-selected (twice) for promotion, due to not meeting the educational requirements for promotion.  At that time the applicant's records reflected he had completed 1 year of college when in fact he had a masters degree.

3.  The applicant enlisted in the MNARNG on 25 September 2003 and on 7 July 2004, he was appointed as a warrant officer one (WO1).  He was promoted to the rank of CW2 on 7 July 2006.

4.  On 2 August 2007, the applicant requested an exception to policy to be reappointed as a commissioned officer due to being non-selected for promotion (twice).  His request was favorably endorsed by the chain of command for commissioning in the rank of captain (CPT).  On 8 February 2008, the Assistant Secretary of the Army (Manpower and Reserve Affairs) approved the applicant's request and directed that he be reappointed to the rank of 1LT.

5.  On 1 May 2008, the applicant was appointed as a 1LT in the MNARNG.

6.  In the processing of this case a staff advisory opinion was obtained from the National Guard Bureau which opines, in effect, that the applicant should be granted constructive credit towards his DOR for the period of 30 May 1993 to 19 August 1994 (6 months and 24 days), the time he served in the MNARNG in the rank of 1LT.  

7.  The advisory opinion was provided to the applicant for comment and he responded to the effect that he did not concur with the opinion because the time he spent in the USAR should count towards his DOR; otherwise he should not have been considered by mandatory promotion selection boards.  

8.  Department of Defense Directive (DODD) 1312.3 (Service Credit for Commissioned Officers) provides, in pertinent part, that it is the policy of the Department of Defense that the award of service credit to any person being appointed, assigned, or designated as a commissioned officer in an officer category shall be equitably determined to establish an appropriate appointment grade and date of rank relative to other officers in the same competitive category.  Credit for prior service as a commissioned officer may not exceed 1 year for each year of commissioned service (except as a commissioned warrant officer) in an active status, but not on active duty, for persons appointed as Reserve commissioned officers.

9.  Paragraph 3-19 (Promotion Reconsideration Boards) of Army Regulation  135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) provides, in pertinent part, that records of officers or former officers will be referred for special selection board action when the Office of Promotions (Reserve Components) determines that a review of a mandatory selection board finds that an officer's records contained a material error.  That office may find that a "material error" caused the nonselection of an officer by a promotion board.  A "material error" is defined by this regulation as "One or more errors of such a nature that in the judgment of the reviewing official (or body) may have caused an individual’s nonselection by a promotion selection board.  Had such errors been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion."  However, that office will normally not determine that a material error existed if an officer in exercising reasonable diligence could have discovered and corrected the error or omission in the Official Military Personnel File (OMPF) or if the officer could have taken timely corrective action such as notifying the Office of Promotions (Reserve Components) of the error and providing any relevant documentation that he or she had.

10.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  The regulation provides that mandatory selection boards will be convened each year to consider ARNG officers in an active status for promotion to CPT through LTC.  To be eligible for consideration for promotion to the next higher grade, a National Guard or USAR officer must have continuously performed service on either the Reserve Active Status List (RASL) or the Active Duty List (or a combination of both lists) during the 1-year period ending on the convening date of the promotion board, and must meet the time in grade (TIG) requirements.

11.  Title 10, United States Code, Section 14304 provides the legal authority for eligibility for consideration for promotion based on maximum years of service in grade provisions of the law.  Subsection (a) states, in pertinent part, that officers shall be placed in the promotion zone and shall be considered for promotion to the next higher grade by a promotion board convened under section 14101(a) of this title, far enough in advance of completing the maximum years of service in grade so that, if the officer is recommended for promotion, the promotion may be effective on or before the date on which the officer will complete those years of service.  The table in subsection (a) establishes the maximum years of service in grade for a first lieutenant to be promoted to captain as 5 years, and for a captain to be promoted to major as 7 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was originally promoted to the rank of 1LT in the MNARNG on 30 May 1993 and he was subsequently transferred to the USAR where he remained until he was honorably discharged on 8 July 1999.

2.  Notwithstanding the advisory opinion from the NGB which opines that the applicant should receive constructive credit for the time he served as a 1LT in the MNARNG (6 months and 24 days), the fact is that the applicant remained a Reserve Component officer until his discharge from the USAR, on 8 July 1999.  Therefore, he served as a 1LT for a period of 4 years, 10 months and 20 days while a Reserve Component officer.

3.  Accordingly, he should have been given an ADOR of 12 June 2003, effective 1 May 2008, and his records should have been placed before a promotion selection board for promotion to the rank of CPT, if eligible.

4.  In the event the applicant is selected for promotion to the rank of CPT, as an exception to policy, his promotion cannot be effective earlier than the date he was commissioned as a 1LT (1 May 2008).

5.  The applicant's contention that he should be promoted to the rank of CPT has been considered and found to lack merit.  It would be inappropriate for the Board to assume the responsibility of promotion boards that have the responsibility of determining who is best qualified for promotion and who have the advantage of reviewing all of the records to make such determinations.  Accordingly, the applicant will be afforded the opportunity to compete with others in the zone of consideration.

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 and Department of the Army records of the individual concerned be corrected by adjusting the applicant's DOR by 4 years, 10 months and 20 days (time spent as a Reserve Component 1LT) and placing his records before a promotion selection board for promotion to the rank of CPT, if eligible, and if selected, given the appropriate DOR with an effective date not earlier than 2 May 2008.

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 that pertains to promoting him to the rank of CPT without being considered by a duly constituted selection board.




      _______ _   __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)                                         AR20080016297



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ABCMR Record of Proceedings (cont)                                         AR20080016297



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