IN THE CASE OF:	  

		BOARD DATE:	       14 JULY 2009

		DOCKET NUMBER:  AR20080018523 


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, correction to his Federal recognition and promotion effective date for colonel/pay grade O-6 from 2 October 2008 to 9 August 2007, with entitlement to all back pay and allowances, and that he be placed on the Retired List in the rank of colonel.

2.  The applicant states, in effect, an "equal opportunity" complaint determined to be unfounded and for which he was exonerated derailed his promotion to colonel.  Without adjustment of the effective date and date of rank of his promotion to colonel, his retirement will be based on pay grade O-5 instead of what he believes should rightfully be pay grade O-6.

3.  The applicant provides his promotion order to colonel; his Federal recognition to colonel; orders assigning him to the State Chaplain position; recommendation for promotion to colonel; an extension order; letter detailing the results of an equal opportunity and civil rights complaint; letter approving his request for retired pay under Title 10, U.S. Code, section 12731; orders placing him on the Retired List; NGB Form 22 (Report of Separation and Record of Service); NGB Form 55b (Honorable Discharge); and orders transferring him to the Retired Reserve.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he accepted an appointment as a Reserve Commissioned Officer of the Army under Title 10, U.S. Code, on 29 September 1987.  He was promoted to lieutenant colonel effective 10 August 2004.  His date of birth is 7 October 1947.

2.  The applicant was assigned to an authorized colonel position (State Chaplain) effective 11 July 2007.

3.  On 1 August 2007, the applicant was recommended for promotion to colonel in the State Chaplain position by the New York Army National Guard (ARNG).

4.  In the processing of this case, the Chief, Personnel Division, Departments of the Army and the Air Force, National Guard Bureau (NGB), reiterated the applicant's request in an advisory opinion (later corrected).  The advisory opinion and a letter from the White House to the Senate indicates the applicant was placed on Senate List 23-07 scheduled for consideration on 1 October 2007.

5.  The advisory opinion indicated the applicant was removed from the Senate List prior to approval due to a Complaint of Discrimination filed on 11 June 2007.  An electronic mail message, dated 4 February 2008, subject:  S23-07, also indicates he was removed from that Senate List due to investigation.

6.  The advisory opinion further indicates the discrimination complaint investigation findings of "no discrimination" were published on 25 July 2008.  The NGB official indicates the applicant was then resubmitted for promotion.  The NGB extended him Federal recognition and promotion to colonel effective 2 October 2008 based on Senate confirmation by voice vote on 2 October 2008.

7.  NGB Special Orders Number 68 AR dated 23 March 2007 show that while the applicant was qualified for retired pay under Army Regulation 135-180 (Title 10, U.S. Code, section 12731) he was retained in an active status until 31 October 2008 under Title 10, U.S. Code, section 12308.

8.  Office of the Adjutant General, Joint Force Headquarters, Orders 305-999, dated 31 October 2008, show he was separated from the ARNG on 31 October 2008.

9.  U.S. Army Human Resources Command Orders P09-813936, dated 10 September 2008, show he was placed on the Retired List on 1 November 2008, with a retired grade of lieutenant colonel.  He was at 61 years of age at the time.

10.  On 4 May 2009, the advisory opinion recommending promotion to colonel with a date of rank and promotion effective date of 7 February 2007 was forwarded to the applicant for acknowledgement and/or rebuttal.
11.  On 14 May 2009, the applicant concurred with the NGB advisory opinion, with the exception of the recommended effective date.  The NGB official subsequently provided a corrected copy of the advisory opinion recommending partial approval of the applicant's request in so much as adjustment of his promotion effective date and date of rank to 7 February 2008 which is the same as his peers on Senate List 23-07 and is the date he would have been promoted if it were not for the investigation.  The official further recommends the applicant receive all back pay and entitlements due to the adjusted date of rank and promotion effective date.

12.  Title 10, U.S. Code, section 14311(a)(1), states, in pertinent part, "Under regulations prescribed by the Secretary of Defense, the appointment of an officer to a higher grade may be delayed if…(b) an investigation is being conducted to determine whether disciplinary action of any kind should be brought against the officer."  Further in the same subsection, the code continues, in pertinent part, if no disciplinary action is taken against the officer, or if the charges against the officer are withdrawn or dismissed, the officer shall be retained on the promotion list and shall, upon promotion to the next higher grade, have the same date of rank, the same effective date for pay and allowances of the grade to which promoted, and the same position on the reserve active-status list as he would have had if no delay had intervened, unless the Secretary concerned determines that the officer was unqualified for promotion for any part of the delay.  Section 14311 further provides that, except for court action, a promotion may not be delayed more than 18 months after the date on which the officer would otherwise have been promoted.

13.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) provides in paragraph 3-18 that a report of a selection board exists after a promotion board issues a signed board report.  The board report becomes a promotion list after approval by the President or his designee.

14.  Title 10, U.S. Code, section 1370, provides for the retirement of officers for non-regular service.  That section states that reserve officers above the rank of major but below lieutenant general may be voluntarily retired in a grade in which they served satisfactorily for at least 3 years.  Reserve officers being involuntarily separated under a nondiscretionary provision of law must only serve satisfactorily in grade for 6 months.

15.  National Guard Regulation 635-100 (Personnel Separation - Termination of Appointment and Withdrawal of Federal Recognition) prescribes policies, responsibilities, and procedures governing separation of commissioned officers of the ARNG.  Paragraph 5 contains guidance on mandatory removal from an active ARNG status.  It states in pertinent part that officers other than those described otherwise, who are not earlier removed from active status by reason of time in grade, length of service, or other reason must be removed from an active status in the ARNG of the United States on the last day of the month in which they attain age 60.  Paragraph 6 of the same regulation states that a chaplain may be retained in an active status beyond mandatory removal date for a period not to exceed 1 year.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his promotion effective date and date of rank for colonel be corrected to 9 August 2007.  The evidence shows the applicant was assigned to an authorized colonel position effective 11 July 2007.  His name was placed on Senate List 23-07 scheduled for consideration on 1 October 2007 and as a result of a discrimination complaint his name was withdrawn prior to submission of the list to the President for approval.  However, even if the applicant's name had remained on the Senate list and subsequently been on the promotion list, he would not have been eligible for promotion prior to the Senate confirmation of those on the list by voice vote on 7 February 2008.  Therefore, he is not entitled to correction of his promotion effective date and date of rank to 9 August 2007.

2.  The applicant's investigation resulted in a finding of "no discrimination" on 25 July 2008.  He was resubmitted for promotion and extended Federal recognition and promoted to colonel effective 2 October 2008 based on Senate confirmation by voice vote on 2 October 2008.
 
3.  The provisions of Title 10, U.S. Code, section 14311, only apply in those cases where a member has received Presidential approval; therefore, Title 10, U.S. Code, section 14311, does not apply.  Thus there is no inherent right for the applicant to have his promotion backdated as an operation of law.  However, since the Senate later approved the list with his name on it, it would be fair and equitable to show the applicant was promoted to colonel effective 7 February 2008 as recommended by the NGB with entitlement to back pay and allowances because the only reason he was not promoted on that date was a discrimination complaint which proved to be groundless.

4.  Due to the applicant attaining the age of 60 on 7 October 2007 his mandatory removal date was 31 October 2007, the last day of the month.  The applicant was retained on active status for 1 year past his mandatory removal date with his consent, in effect changing his mandatory removal date to 31 October 2008.  Based on his involuntary separation under a nondiscretionary provision of law due to his mandatory removal date he was only required to serve satisfactorily in the rank of colonel for 6 months to be placed on the Retired List in that grade.  The applicant would have satisfactorily served in the rank of colonel for more than 8 months based on an adjusted promotion effective date to colonel of 7 February 2008.

5.  In view of the foregoing, the applicant's ARNG and Department of the Army records should be corrected as recommended below.

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 ARNG and Department of the Army records of the individual concerned be corrected by:

	a.  voiding the applicant's Federal recognition and promotion orders promoting him to colonel effective 2 October 2008 and declaring them to be of no force or effect;

	b.  showing that the applicant was extended Federal recognition and promoted to colonel with a promotion effective date of 7 February 2008 with all appropriate adjustment of pay and allowances; and

	c.  amending his orders placing him on the Retired List to show his retired grade as Colonel.

2.  The Board further recommends that based on the above corrections, the Defense Finance and Accounting Service should audit the applicant's pay account and pay him the difference in pay 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 the applicant's Federal recognition and promotion effective date to 9 August 2007.



      __________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)                                         AR20080018523



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ABCMR Record of Proceedings (cont)                                         AR20080018523



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