IN THE CASE OF:	  

		BOARD DATE:	       13 January 2009

		DOCKET NUMBER:  AR20080017700 


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 reconsideration of his earlier request that his Federal Recognition orders for promotion to lieutenant colonel (LTC)/O-5 be adjusted from 8 February 2008 to 25 September 2006 with entitlement to back pay and allowances as a result of this correction.  (In a 30 March 2008 letter to the Board in response to the earlier application, the applicant stated he wanted his LTC Federal Recognition orders to read 25 September 2007 and not 25 September 2006 as stated in the case.)

2.  The applicant states that he met the educational and moral requirements well prior to the current effective date of his Federal Recognition.  He adds that although he was eligible for Federal promotion to LTC/O-5 by 25 September 2006, his promotion packet was not considered by the 2006 Army Medical Department (AMEDD) LTC Selection Board through no fault of his own and due to actions beyond his control.  He concludes that the Defense Finance and Accounting Service (DFAS) should grant him all back pay and allowances as a result of this correction.  

3.  The applicant provided a copy of an earlier Army Board for Correction of Military Records (ABCMR) letter, dated 4 September 2008, in support of his request.


CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous considerate of the applicant's case by the ABCMR in Docket Number AR20080001430 on 20 March 2008.

2.  The applicant provides a new argument that will be considered by the Board.

3.  The applicant’s records show he was appointed as a captain (CPT)/O-3 in the Medical Corps (MC) of the Texas Army National Guard (TXARNG) and executed an oath of office on 17 December 2004.  He subsequently completed the AMEDD Officer Basic Course on 14 January 2005.

4.  On 28 February 2005, a DA Form 5074-R (Record of Award of Entry Grade Credit (Health Services Officer)) was completed by the Accession Branch, awarding the applicant 12 years, 2 months, and 22 days of constructive service credit.  His date of rank (DOR) as CPT was adjusted to 25 September 1996 to account for excess credit.  

5.  On 3 March 2005, National Guard Bureau Federal Recognition Special Orders Number 67 AR extended the applicant permanent Federal Recognition for his initial appointment as a CPT effective 17 December 2004 with a DOR as 25 September 1996.

6.  On 24 April 2005, the applicant was ordered to active duty in support of Operation Iraqi Freedom and subsequently served in Iraq from 30 April 2005 to 16 January 2006.  He was honorably released from active duty to the control of his ARNG unit on 21 February 2006.  

7.  On 28 March 2006, by letter, the U.S. Army Human Resources Command (HRC)-St. Louis, notified the applicant that he was selected for promotion to major (MAJ)/O-4 under the provisions of Army Regulation (AR) 135-155 (Promotion of Commissioned Officers and warrant Officers other Than General Officers) by the 2006 RCSB that convened on 10 January 2006 and adjourned on 27 January 2006 and that his promotion eligibility date was 24 September 2003.  His effective date of promotion was either of the following dates:

	a.  24 September 2003,

	b.  Date Federal Recognition is extended in the higher grade, or

	c.  Date following the date Federal Recognition is terminated in current Reserve grade.
8.  On 8 August 2007, the Office of the Adjutant General, TXARNG, Austin, TX, published Orders 220-1059 announcing the applicant’s promotion to MAJ/O-4 effective 28 March 2006 and with a DOR as 24 September 2003. 

9.  On 1 July 2006, the applicant completed the AMEDD Captains Career Course. 

10.  On 16 August 2006, National Guard Bureau Federal Recognition Special Orders Number 209 AR extended the applicant permanent Federal Recognition for the purpose of his promotion to MAJ effective 16 August 2006.

11.  On 3 May 2007, in response to the applicant’s petition, dated 21 August 2006, to the ABCMR to adjust his DOR to MAJ from 16 August 2006 to 24 September 2003, the ABCMR rendered a favorable decision and recommended the applicant’s records be corrected by amending Federal Recognition Special Orders Number 209 AR, dated 16 August 2006, to show the effective date of promotion to MAJ as 28 March 2006 and his DOR as 24 September 2003, auditing his pay record for the purpose of establishing entitlement to back pay and allowances, and submitting the applicant’s promotion record to the next (2007) LTC AMEDD Selection Board for consideration for promotion to LTC/O-5.

12.  On 10 August 2007, National Guard Bureau Federal Recognition Special Orders Number 194 AR adjusted the applicant’s effective date of promotion from 16 August 2006 to 28 March 2006.

13.  On 1 November 2007, the Office of the Adjutant General, TXARNG, Austin, TX, published Orders 305-178 announcing the applicant’s promotion to LTC/O-5 effective 25 October 2007 and with a DOR as "24 September 2003."  This promotion appears to be based on a unit vacancy.

14.  On 21 November 2007, the applicant petitioned the ABCMR to correct his promotion eligibility date to LTC/O-5 to 25 September 2006 and that he receive all back pay and allowances.

15.  On 12 February 2008, by letter, the National Guard Bureau, Arlington, Virginia, notified the applicant that he was selected for promotion to LTC/O-5 under the provisions of AR 135-155 and that his promotion eligibility date and effective date of promotion is 8 February 2008. 

16.  Subsequent to this notification, the National Guard Bureau published Special Orders 43 AR extending the applicant Federal Recognition for promotion to LTC/O-5 effective 8 February 2008.

17.  On 20 March 2008, the ABCMR rendered an unfavorable decision regarding the applicant’s petition, dated 21 November 2007, regarding correction of his promotion eligibility date to 25 September 2006, and restoration of all back pay and allowances.  

18.  On 30 March 2008, by letter, the applicant notified the ABCMR that his petition, dated 21 November 2007, was misunderstood and that he did not request his promotion eligibility date to LTC/O-5 be changed to 25 September 2006.  He wanted National Guard Bureau Federal Recognition Special Orders Number 194 AR to show his effective date of promotion as 4 January 2005 instead of 28 March 2006 and that National Guard Bureau Federal Recognition Special Orders Number 43 AR, dated 12 February 2008, to show his effective date of promotion to LTC/O-5 as 25 September 2007 instead of 8 February 2008.

19.  On 4 September 2008, by letter, the ABCMR notified the applicant that his promotion eligibility issue was already addressed on 20 March 2008 and that his letter, dated 30 March 2008, indicated additional corrections that were not previously considered by the Board.  He was further advised to submit a new application providing proof that he had exhausted administrative remedies available to him and addressing his new request for correction.

20.  National Guard Regulation 600-100 (Commissioned Officer-Federal Recognition and Related Personnel Actions) provides procedures for processing all applications for Federal Recognition.  Paragraph 2-1 states that commissioned officers of the ARNG are appointed by the several States under Article 1, Section 8 of the U. S. Constitution.  These appointments may be federally recognized by the Chief, NGB under such regulations as the Secretary of the Army may prescribe and under the provisions of this regulation.  Officers who are federally recognized in a particular grade and branch shall be tendered an appointment in the same grade as Reserve commissioned officers of the Army with assignment to the Army National Guard of the United States if they have not already accepted such appointment.  

21.  Paragraph 8-1 of National Guard Regulation 600-100 states the promotion of officers in the ARNG is a function of the State.  A commissioned officer must complete the minimum years of promotion service prior to being considered for promotion and Federal Recognition in the higher grade.  The minimum years of promotion service in the grade of major to be considered to LTC is 4 years for a unit vacancy.

22.  AR 135-155 requires the mandatory consideration of Army Reserve commissioned officers for promotion to the next higher grade at specified times in their careers as determined by the officer’s year in grade and years of commissioned service.  While promotion consideration is mandatory, selection for promotion is contingent upon an officer meeting promotion eligibility requirements and whether he or she has successfully participated in Reserve training.  Table 2-1 of this regulation states that the minimum years in the lower grade for a MAJ to be considered for promotion to LTC is 4 years and the maximum years in the lower grade for a MAJ to be considered for promotion to LTC is 7 years. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his Federal Recognition orders for promotion to LTC/O-5 should be adjusted from 8 February 2008 to 25 September 2006 with entitlement to back pay and allowances as a result of this correction.

2.  The evidence of record shows that the applicant was originally appointed as a CPT in the MC of the TXARNG effective 17 December 2004 with a DOR as 25 September 1996.  He was subsequently notified that he was eligible for promotion to MAJ effective 24 September 2003.  He was selected for promotion to MAJ by the board that convened on 27 January 2006 and was extended Federal Recognition for this promotion effective 16 August 2006. 

3.  As a result of the ABCMR's petition, the applicant's DOR as a MAJ was adjusted to 24 September 2003, making his earliest date of eligibility for mandatory promotion to LTC by an RCSB as 24 September 2010 (7 years from his DOR as a MAJ).  

4.  The evidence of record further shows that the applicant was promoted to LTC/O-5 by a unit vacancy board by the TXARNG effective 25 October 2007 and was subsequently extended Federal Recognition for this promotion effective 8 February 2008.  This date of processing the applicant's promotion to LTC and extending Federal Recognition for this promotion seems reasonable and does not suggest an error or an injustice.  A unit vacancy promotion is a function of the State. 

5.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to 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 to amend the decision of the ABCMR set forth in Docket Number AR20080001430, dated 20 March 2008.



															XXX
      _______ _   _______   ___
               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)                                         AR20080017700



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080017700



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1