IN THE CASE OF:	  

		BOARD DATE:	        27 MAY 2009

		DOCKET NUMBER:  AR20080020100 


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 her date of rank (DOR) as a captain (CPT) be back dated from 29 September 2006 to the first eligibility date of 1 July 2004.

2.  The applicant states her records are in error and unjust due to administrative mistakes and lack of chain of command action.  She adds that she assumed command of a unit on 21 January 2003 and was subsequently alerted for deployment and deployed to Iraq in March 2003 as the detachment commander. The position she occupied was that of a CPT/O-3.  Prior to deployment, she had fulfilled all qualifications for the position, with the intent, as per regulation, that she would get promoted within a year.  She was then issued a memorandum by her servicing military personnel office (MILPO) regarding the process for promotion from first lieutenant (1LT) to CPT and met all qualifications listed on that memorandum on 1 July 2004.  She also adds that after exhausting the chain of command, she solicited help from the Inspector General (IG).  The IG informed her that the lack of promotion was due to missing several officer evaluation reports (OER).  She was finally promoted to CPT after several calls from the IG to her brigade officials and constant resubmission of the same paperwork.

3.  The applicant provides a copy of a memorandum, dated 27 December 2005, from Headquarters, 369th Corps Support Battalion, New York Army National Guard (NYARNG, New York City (NYC), NY; a copy of her DA Form 67-9 (Officer Evaluation Report) for the period from 20050502 to 20060501; a copy of a self-authored memorandum, dated 20 November 2006, request for a review of an OER; and a copy of a memorandum, dated 5 March 2007, letter of support from the NYARNG IG, in support of her request.
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.  With prior enlisted service, the applicant’s records show she was appointed as a second lieutenant (2LT) in the Transportation Corps of the NYARNG and executed an oath of office on 1 July 2000.  She was subsequently assigned to the 1569th Transportation Company, NYC, NY.

3.  The applicant’s records further show she completed the Transportation Officer Basic Course on 18 May 2001 and was promoted to 1LT on 1 July 2002. 

4.  On 15 March 2003, the applicant was ordered to active duty in support of Operation Iraqi Freedom and subsequently served in Iraq from 6 June 2003 to 25 May 2004.  She was assigned to the 10th Transportation Detachment.  She was honorably released from active duty to the control of her ARNG unit on 14 July 2004.

5.  On 2 February 2006, by letter, the U.S. Army Human Resources Command (HRC), St. Louis, MO, notified the applicant that she was selected for promotion to CPT by a mandatory selection board that convened on 7 November 2005, adjourned on 17 November 2005, and was approved on 14 February 2006.  The letter further informed her that her promotion will be either of the following dates:

	a.  on 30 June 2007; or 

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

	c.  Date following the date Federal Recognition is terminated in current Reserve grade.

6.  On 22 September 2006, the Office of the Adjutant General, Joint Forces Headquarters, NYARNG, published Orders 265-1045 announcing the applicant’s promotion to CPT, effective 29 September 2006.

7.  On 29 September 2006, by letter, the National Guard Bureau notified the applicant that she was promoted to CPT with an effective date and date of rank of 29 September 2006.  This was followed by the issuance of Orders Number 249 AR extending the applicant Federal Recognition for her promotion to CPT, effective 29 September 2006.

8.  The applicant submitted the following documentary evidence in support of her request:

	a.  a copy of a memorandum, dated 27 December 2005, in which the unit S-1 recommended her for promotion to CPT under the provisions of chapter 8 of National Guard Regulation (NGR) 600-100 (Commissioned Officer-Federal Recognition and Related Personnel Actions) and her battalion commander verified her height and weight; 

	b.  a copy of a referred OER for the period from 2 May 2005 through 1 May 2006, which was completed by the rating officials on 29 September 2006;

	c.  a copy of a memorandum, dated 10 November 2006, addressed to Headquarters, Department of the Army, in which she requested a review of the referred OER; and 

	d.  a copy of a memorandum from the NYARNG IG, offering a neutral observation of the circumstances that led to this OER and adding insight into the details of the applicant’s claim of appeal. 

9.  An advisory opinion was obtained in the processing of this case on 9 March 2009.  The Chief of Personnel Division at the National Guard Bureau recommended disapproval of the applicant’s request to adjust her DOR from 29 September 2006 to 1 July 2004.  The Chief stated that chapter 2 of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) provides for the promotion of officers in the grades of 1LT through major (MAJ) to be promoted on or before their maximum time in grade (TIG).  The applicant’s promotion date to 1LT was 1 July 2002.  Her eligibility date for promotion to CPT was 1 July 2007, making her ineligible for consideration by the 2004 Selection Board for CPT because the zone of consideration for that board was a DOR of 31 August 2003 and earlier.  Therefore, her records went before the 2005 selection board for CPT where she was a first time selectee for CPT.  
10.  The applicant was furnished with a copy of this advisory opinion on 13 March 2009; however, she did not respond.

11.  Army Regulation 135-155 prescribes policy for selecting and promoting commissioned officers of both the ARNG and the USAR, and warrant officers of the USAR.  This regulation also covers promotion eligibility and qualification requirements, board schedules and procedures, and procedures on processing selection board recommendations.  Promotion from 1LT to CPT requires completion of a minimum of 2 years and/or a maximum of 5 years in the lower grade.  Unit officers selected by a mandatory board will have an effective date and date of promotion no earlier than the date the board is approved provided they are assigned to a position in the higher grade.

12.  Paragraph 4-15 of Army Regulation 135-155 states that the effective date of promotion may not precede the date of the promotion memorandum.  An officer is promoted after selection if all qualifications for promotion are met.  

13.  NGR 600-100 provides procedures for processing all applications for Federal Recognition.  Chapter 8 of NGR 600-100 states, in pertinent part, that the States will not promote a commissioned officer who is being considered by a DA Selection Board from the time the board convenes until its recommendations are announced.  It also states that promotion authority of officers in the National Guard is a function of The Adjutant General (TAG) and that if TAG chooses not to promote an officer, he/she is not obligated to do so.  

14.  NGR 600-100, chapter 8 establishes the policies and procedures for promotion of officers in the ARNG.  Essentially, officers serving in a unit where a position vacancy exits may be promoted by the State to fill the position vacancy.  However, until Federal Recognition in the new rank is extended by the NGB, the individual cannot be promoted and paid for the higher rank.  The NGB has advised in similar cases such as this that recommendations for promotion must be processed through NGB staff to obtain approval of the promotion by the President, and that the approval process normally takes approximately 3 months.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her DOR as CPT should be adjusted from 29 September 2006 to 1 April 2004. 

2.  The evidence of record shows that the applicant’s unit S1 and battalion commander recommended her for promotion to CPT in December 2005.  There is no evidence to show she was recommended earlier than that date. 

3.  At the time the recommendation for promotion was made, the applicant was being considered by a mandatory board, which precluded her from being considered for a unit vacancy promotion.  Additionally, there is no indication that this action was forwarded through command channels to and/or approved by TAG or that the recommendation was forwarded to the National Guard Bureau for Federal Recognition.  The promotion authority of officers in the ARNG is a function of TAG.  In the absence of evidence to the contrary, it appears that her recommendation was never processed, or acted upon and/or approved by TAG, or forwarded to and/or approved by the National Guard Bureau.

4.  The evidence of record further shows that the applicant was promoted to 1LT on 1 July 2002.  Therefore, her promotion eligibility date was determined to be not earlier than 1 July 2004 (2 years) and not later than 1 July 2007 (5 years).  The earliest mandatory selection board that could have considered her was the 2005 board which convened on 7 November 2005 and adjourned on 17 November 2005.  She was selected and was subsequently extended Federal Recognition for this promotion effective 29 September 2006.  

5.  Nevertheless, the NYARNG recommendation clearly shows that she was fully qualified for promotion and occupying a CPT position in December 2005.  Notwithstanding a subsequent referred OER (for the period ending 1 May 2006 but was not even completed until 29 September 2006), her Federal Recognition should have been processed within a reasonable period of time, generally within 3 months of the promotion board approval date of 5 February 2006.  Therefore, it would be equitable to show that the applicant should have been extended Federal Recognition for promotion to CPT no later than 5 May 2006 and should be entitled to correction of her records to show this effective date and date of rank.

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 Department of the Army records of the individual concerned be corrected by amending Special Orders Number 249 AR, dated 29 September 2006, to show an effective date and a DOR of promotion to captain of 5 May 2006.

2.  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 correcting her DOR from 29 September 2006 to 1 July 2004.




      _______ 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)                                         AR20080020100





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ABCMR Record of Proceedings (cont)                                         AR20080020100



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