IN THE CASE OF:	  

		BOARD DATE:	  21 May 2009

		DOCKET NUMBER:  AR20080019265 


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 the effective date and date of rank (DOR) for his promotion to major be corrected from 6 December 2005 to 7 February 2000.  In the alternative, he requests that his effective date and DOR be corrected to the date of his promotion memorandum of 28 June 2005.

2.  The applicant states that he was selected for promotion to major by a mandatory board while he was mobilized for Operation Iraqi Freedom.  He was given a DOR of 6 December 2005.  However, his orders specified a promotion eligibility date (PED) of 7 February 2000.  Since he did not request a delay in promotion, he believes that his effective date and DOR to major is unjust.

3.  The applicant provides excerpts from his military records.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records show that while serving in an Army National Guard (ARNG) unit, he was considered and selected by an Army Reserve Components Mandatory Selection Board which convened on 2 March 1999 and released on 14 January 2000.  His PED was established as 7 February 2000 in his promotion memorandum.

3.  On 6 March 2000, the applicant requested a delay of his promotion.  In that request he acknowledged that his delay period would not exceed 3 years from the date he would otherwise be promoted.  He also acknowledged that at the end of the 3-year period, he would have to be promoted in the ARNG if assigned to a properly graded position, promoted and transferred to the Individual Ready Reserve, or decline the promotion.

4.  In a phone conversation with U.S. Army Human Resources Command, St. Louis (HRC-STL), it was confirmed that the applicant was not considered for promotion in 2003 and 2004 because he had not as yet declined his promotion.  As such, he was still on a promotion list and could not be considered by a promotion board.

5.  On 31 January 2005, HRC-STL wrote the applicant informing him that it had received his election to decline his promotion and that the declination constituted a one-time non-selection for promotion.

6.  On 29 April 2005, the applicant entered a 390-day period of active duty in support of Operation Iraqi Freedom.

7.  On 28 June 2005, the applicant was notified that he was selected for promotion to major by a promotion board which adjourned on 25 March 2005.  This promotion board's recommendation was approved on 8 June 2005.

8.  The ARNG afforded the applicant Federal recognition and promoted him to major effective 29 November 2005.  He was afforded a PED of 7 February 2000 on the promotion memorandum.  The applicant was honorably released from active duty and transferred back to his ARNG unit on 8 August 2006 in the rank of major.

9.  On 17 December 2003, the Assistant Secretary of the Army for Manpower and Reserve Affairs (ASA (M&RA)), issued a memorandum establishing a promotion policy for mobilized Reserve Component officers.  It stated in the memorandum that the policy provided an exception to Army Regulation 135-155 (Army National Guard and U.S. Army Reserve Promotion of Commissioned Officers and Warrant Officers Other than General Officers), paragraph 4-9a, which requires as a condition for promotion that a Reserve Component officer assigned to a troop program unit selected by a mandatory promotion board be assigned or attached to a permanent position requiring the higher grade.  It stated that mobilized ARNG officers who are recommended for promotion by a mandatory promotion board and are on an approved promotion list may be promoted immediately when appointed in the state against a vacant position of the higher grade in a federally recognized unit in the ARNG.  Officers promoted under this policy must be assigned to the position against which the officer was matched or appointed within 180 days after demobilization.  If an officer, upon demobilization, declines or is unwilling or unable to occupy the position against which the officer was matched or appointed, then the officer shall be transferred immediately to the Individual Ready Reserve if the officer is not assigned to some higher graded Reserve Component position within 180 days after demobilization.  Officers will be promoted on the date on which they complete the maximum years of service as specified in Title 10, U.S. Code, section 14304(a), unless the officer has voluntarily delayed or declined promotion.

10.  In the processing of this case, an advisory opinion was obtained from the National Guard Bureau (NGB).  The NGB stated that in accordance with an NGB memorandum, dated 1 September 2004, an ARNG officer recommended for promotion to the grade of captain to lieutenant colonel mobilized under the provisions of Title 10, U.S. Code, sections 12301(a), 12302, and 12304, and who is on an approved mandatory selection board promotion list who reaches his maximum time in grade will be promoted without regard to position vacancy unless that officer has voluntarily delayed or declined promotion.  The NGB recommended that the ABCMR approve the applicant's request to change the effective date of his promotion to major to 2 May 2005, the date he was mobilized.

11.  The applicant was provided a copy of the advisory opinion and submitted a rebuttal.  In that rebuttal the applicant stated that he concurs with the NGB's recommendation if he cannot be given an effective date of promotion of his PED. He asks the ABCMR to consider, however, that he was mobilized from 12 December 2002 to 5 November 2003, which, while prior to the ASA (M&RA) policy memorandum, was within his 3-year promotion delay period.

12.  The Reserve Officer Personnel Management Act (ROPMA) is a public law enacted by Congress on 5 October 1994 and implemented on 1 October 1996.  The ROPMA specifies that an officer’s promotion cannot be effective prior to the approval of the promotion board by the President of the United States or his designee.
13.  National Guard Regulation 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions), paragraph 8-15, requires an officer selected for promotion to be Federally recognized prior to being promoted in the ARNG.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was selected for promotion in 1999 which was prior to the implementation of the ASA (M&RA) promotion policy on mobilized Reserve Component soldiers.  As such, these provisions did not apply to the applicant's 1999 promotion selection.

2.  The applicant declined that promotion, which resulted in his 1999 selection for promotion being considered a pass over for promotion.  As such, that promotion selection has no bearing on whether the effective date of the applicant's 2005 promotion to major was appropriate notwithstanding his 2002 to 2003 mobilization.

3.  The applicant was selected for promotion by the March 2005 Army Reserve Components Mandatory Selection Board.  Since this promotion board's recommendation was approved on 8 June 2005 after the applicant was mobilized, the applicant was covered by the ASA (M&RA) promotion policy for mobilized Reserve Component officers.

4.  Therefore, according to the ASA (M&RA) policy, the applicant was eligible to be promoted effective on the date he completed the maximum years of service.  However, since the applicant was an ARNG officer, he could not be promoted until he was afforded Federal recognition in the higher grade.  In this case, he was not afforded Federal recognition until 29 November 2005.

5.  As such, there is no error or injustice in the effective date of the applicant's promotion to major.

6.  The advisory opinion from the NGB has been carefully considered.  However, the NGB did not take into consideration the time required to complete the Federal recognition process.  In addition, the date recommended by the NGB is prior to the date the promotion board was approved, which is prohibited by law.

7.  To grant the applicant's request would be giving him a benefit not afforded to other ARNG officers.


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 for correction of the records of the individual concerned.



      ___________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)                                         AR20080019265



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ABCMR Record of Proceedings (cont)                                         AR20080019265



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