IN THE CASE OF:	 

		BOARD DATE:	        23 April 2009

		DOCKET NUMBER:  AR20080017262 


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 (DOR) for major be adjusted from 1 August 2006 to 17 March 2006. 

2.  The applicant states, in effect, that the amount of time from his State promotion order and his Federal Recognition order was 144 days.  He contends that the length of time has negatively affected his promotion eligibility by placing him outside the order of merit list window of his peers.  He states that during this time the policy for Active Guard Reserve (AGR) promotions was in the process of being changed and may have contributed to the length of the approval.  

3.  The applicant provides promotion orders and a memorandum, dated 8 August 2008 in support of his application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving in an AGR status in the Army National Guard in the rank of major.

2.  Department of Military Affairs, Boone National Guard Center, Frankfort, Kentucky Orders 076-831, dated 17 March 2006, show the applicant was promoted to major effective 17 March 2006.    



3.  A memorandum, dated 8 August 2006, from the Departments of the Army and the Air Force, National Guard Bureau, show the applicant was promoted to major effective 7 August 2006 in the Reserve of the Army for service in the Army National Guard. 

4.  Departments of the Army and the Air Force, National Guard Bureau, Special Orders Number 198 AR, dated 8 August 2006, show the applicant was granted Federal Recognition in the Army National Guard for promotion to major effective 7 August 2006.   

5.  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 his promotion was based on a position vacancy promotion.

6.  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.

7.  Records at the National Guard Bureau show the applicant's name was on an approved scroll list from the Secretary of the Defense dated 7 June 2006.

8.  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 date the Chief, National Guard Bureau extends Federal Recognition, unless otherwise provided by law.  An officer's date of rank 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.

9.  The ROMPA, 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.   

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant was promoted to major effective 
17 March 2006 by the State of Kentucky and his Federal Recognition orders were not published by the Chief, National Guard Bureau until 7 August 2006.  

2.  Notwithstanding the advisory opinion, and since the applicant's name was on an approved scroll list from the Secretary of Defense (dated 7 June 2006) prior to his current major promotion, it would be equitable to correct the applicant’s military records to show his effective date of promotion to major is 7 June 2006 with a DOR of 7 June 2006.  It would also be equitable to show he was granted Federal Recognition for promotion to major effective 7 June 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 the state Army National Guard records and the Department of the Army records of the individual concerned be corrected by amending Departments of the Army and the Air Force, National Guard Bureau, Special Orders Number 198 AR, dated
8 August 2006, to show that he was promoted to major with a DOR and effective date of 7 June 2006.
2.  The Board also recommends that the applicant be paid all back pay and allowances due as a result of these corrections.

3.  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 adjusting his DOR to 
17 March 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)                                         AR20080017262





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ABCMR Record of Proceedings (cont)                                         AR20080017262



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