IN THE CASE OF:	  

		BOARD DATE:	  	  3 March 2009

		DOCKET NUMBER:  AR20080018229 


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 previous request that his date of rank (DOR) for promotion to colonel be corrected to read 29 July 2006 vice 23 October 2008.

2.  The applicant states that paragraph 13-5a of Department of the Army Personnel Policy Guidance (PPG) states, "On 17 December 2003, the Assistant Secretary of the Army (Manpower and Reserve Affairs) modified the Army’s existing policy for promoting RC [Reserve Component] officers to the ranks of captain through colonel in the Selected Reserve (includes both the ARNG [Army National Guard] and the USAR [United States Army Reserve])…"

3.  The applicant states that he was promoted to the rank of colonel in accordance with a National Guard Bureau memorandum dated 30 January 2004 and maintains the PPG clearly supports his appeal to change his date of rank with entitlement to all back pay and allowances.

4.  The applicant provides a copy of paragraph 13-5a from the PPG.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080008210, on 28 August 2008.

2.  The Board concluded in its original deliberations that the promotion of mobilized officers without regard to the existence of a vacancy or placement against a position of higher grade applied only to those officers recommended for promotion to captain through lieutenant colonel.  The basis for this conclusion was various policy memoranda issued by the Assistant Secretary of the Army (Manpower and Reserve Affairs) and the Director of the Army National Guard.

3.  Chapter 13, of the PPG for Contingency Operations in Support of GWOT [Global War on Terrorism] contains information concerning Reserve Component Promotions.  Paragraph 13-5a addresses general information concerning commissioned officer promotions.  Paragraph 13-5a states:

On 17 December 2003, the Assistant Secretary of the Army (Manpower and Reserve Affairs) modified the Army’s existing policy for promoting RC officers to the ranks of Captain through Colonel in the Selected Reserve (includes both the ARNG and USAR) and the Individual Ready Reserves (IRR).  The revised RC Promotion Policy impacts TPU, M-Day (ARNG), AGR, IMA (including DIMA), and IRR officers involuntary mobilized to support current contingency operations under provisions of 10 USC sections 12301(a), 12302, and 12304 and are on an approved mandatory selection board promotion list.

4.  Paragraph 13-5a included several subparagraphs which discussed time-in-grade requirements, policies for officers on extended tours of active duty orders, twice non-selected officer, etc.  Those subparagraphs included guidance for promotions to grades through the rank of colonel.

5.  Paragraph 13-5 contained additional subparagraphs "b," which outlined specific guidance for the promotion of ARNG commissioned officers, and "c," which pertained to USAR commissioned officers.  

6.  Paragraph 13-5b(3)(d) does state that a “mobilized officer who is selected for promotion by a DA Mandatory promotion board and is on an approved promotion list shall (if not promoted sooner or removed from the promotion list by the President or declination) be promoted without regard to the existence of a vacancy, on the date on which the officer completes the maximum years of service in grade as indicated on table 1. (The reference for this is section 14304(b) title 10.)”  Clarification from the Officer Career Policy Branch, Army G-1, however, noted that this provision in the PPG should have had an exclusionary statement for DA Selected LTCs.  That office noted that under the ASA (M&RA) (Assistant Secretary of the Army (Manpower & Reserve Affairs)) a DA selected mobilized officer could be promoted to colonel if matched against a position vacancy in the selected reserve.  Otherwise, officers could be promoted without regard to position vacancy when they reached their PEB under the provisions of 10 USC 14304(b), but this was only for promotion up to LTC.  Therefore, a DA selected mobilized LTC who is not matched against a position in the selected reserve must go to the IRR to be promoted after demobilization or decline the promotion.

7.  In the Board’s original deliberation the advisory opinion from the National Guard Bureau stated that the 17 December 2003 memorandum, cited in the PPG, stated that a mobilized Army National Guard of the United States officer covered by this policy memorandum who has been recommended for promotion to the next higher grade by a mandatory promotion board may be promoted immediately when matched against a vacant position of the higher grade in a federally recognized unit in the National Guard.  An officer promoted under this policy memorandum should be assigned to that position against which the officer was matched or appointed within 180 days after demobilization.  That same memorandum, it was noted, went on to state that a mobilized RC officer who has been recommended for promotion to the grades of captain through lieutenant colonel by a mandatory promotion board and who is on an approved promotion list shall be promoted, without regard to the existence of a vacancy or placement against a position of a higher grade on the date on which the officer completed maximum years of service.

DISCUSSION AND CONCLUSIONS:

1.  It is noted that the PPG does contain the statement that the Assistant Secretary of the Army modified the Army’s existing policy for promoting RC officer to the ranks of captain through colonel on 17 December 2003.  However, that was a general statement with specifics of the modified policy amplified in subsequent elements of paragraph 13-5a.

2.  The 17 December 2003 memorandum, which served as the basis for paragraph 13-5a, essentially permitted RC Soldiers in the ranks of captain through colonel to be promoted immediately to the next higher grade when matched against a vacant position in that grade and then assigned to that vacant position within 180 days after demobilization.  Promotion without regard to a vacancy was limited to officers selected for promotion to captain through lieutenant colonel as noted in the Board’s original proceedings.

3.  The PPG paragraph cited by the applicant as new evidence of his entitlement to correction of his DOR to colonel is not sufficiently compelling to overcome the Board’s original conclusions.


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 AR20080008210, dated 28 August 2008.



      ____________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)                                         AR20080018229



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ABCMR Record of Proceedings (cont)                                         AR20080018229



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