IN THE CASE OF:	  

		BOARD DATE:	        16 APRIL 2009

		DOCKET NUMBER:  AR20080016401 


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 his date of promotion to the rank of major be corrected to 24 March 2005 vice 28 August 2007.

2.  The applicant states, in effect, that he was appointed in the Hawaii Army National Guard in the rank of captain on 7 April 2003 with constructive credit adjusting his date of rank to 9 March 1998.  However, when entries were made to the Army's automated personnel system, his date of rank was inadvertently entered as his date of appointment rather than his adjusted date of rank based on his constructive credit.  As a result of the entry error he was not considered for promotion to major by the Army's mandatory selection board.

3.  The applicant states he requested consideration by a special board and ultimately was selected for promotion to major by that special board.  He was informed that he could be promoted to major no earlier than 24 March 2005, the date the President approved the original selection list.  The applicant notes that while waiting for the results of the special board he was promoted to major by the Army National Guard with a Federal recognition effective date of 28 August 2007.  He was informed that only the Army Board for Correction of Military Records could direct correction of his Federal recognition orders.

4.  The applicant provides evidence confirming his promotion to major, evidence of his original appointment and adjusted date of rank to captain as a result of constructive credit, and copies of electronic mail correspondence regarding his promotion to major.  The applicant also provides a support statement from the Adjutant General from the State of Hawaii.
CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate the applicant was appointed as a General Dental Officer in the Hawaii Army National Guard in the rank of captain on 7 April 2003.  As a result of his medical education, he was granted constructive credit of 9 years and 28 days at the time of his initial appointment, thereby establishing his date of rank for captain as 9 March 1998.

2.  As a result of the applicant's constructive credit he met time in grade requirements for promotion to the rank of major on 9 March 2005 under the provisions of Army Regulation 135-155 (Army National Guard and U.S. Army Reserve Promotion of Commissioned Officers and Warrant Officers other than General Officers), table 2-1 which states, in pertinent part, that the maximum time in grade for promotion to major is 7 years.

3.  Correspondence provided by the applicant confirms the erroneous date of rank entry which was input in to the Army's automated personnel system resulted in his not being considered for promotion to major in due course.  In March 2007 an official from the Office of Promotions (Reserve Component) at the Army Human Resources Command acknowledged receipt of the applicant's request for a special selection board.

4.  On 22 May 2007, while pending results of the special board, the applicant was promoted to the rank of major by a state position vacancy board.

5.  On 23 August 2007 the applicant was informed that an Army Standby Advisory Board convened on 16 May 2007 and considered the applicant for promotion to major using the criteria established for the mandatory board which met in 2005.  The applicant was informed that he had been selected for promotion to major with a date of rank of 8 March 2005 and that as long as he was in a position and met qualifications he could receive an earlier date of rank but not earlier than the Presidential approval date of 24 March 2005.

6.  On 29 August 2007 the National Guard Bureau announced the applicant's promotion to major with an effective date of 28 August 2007 and noted that his time in grade for promotion to the next grade will be computed from his "promotion eligibility date" which was the same as his date of rank, 28 August 2007.  Federal recognition of the applicant's promotion to major in the Army National Guard was also effective on 28 August 2007.

7.  In support of his request, the Adjutant General from the State of Hawaii confirmed the applicant had been initially overlooked by a Department of the Army promotion board due to an analyst input error.  The Adjutant General noted the applicant was eligible for promotion to major as early as 8 March 2005, but the earliest he could be promoted was the Presidential approval date of 24 March 2005.  He stated the only process available to correct the applicant's effective date of promotion was via this Board.

8.  In the processing of this case an advisory opinion was obtained from the National Guard Bureau.  The opinion recommended the applicant's date of rank for major be adjusted from 28 August 2007 to 24 March 2005.  The opinion noted the applicant had applied for consideration for promotion by a special board, however prior to that board convening; he was promoted to major on 28 August 2007 under the position vacancy promotion system.  It indicated the applicant and his chain of command were concerned that if they were unsuccessful in obtaining consideration by the special board, the applicant would have lost a considerable amount of time in grade.  The opinion stated that the position vacancy promotion was not the correct approach; however, it noted that the applicant should not be penalized.  The opinion concluded that the applicant was granted consideration by a special board due to an incorrect data input of his date of rank for captain in his records and was subsequently granted promotion eligibility for major effective 24 March 2005 by the special selection board.  The applicant was provided a copy of the advisory opinion and concurred with the opinion rendered in his case.

DISCUSSION AND CONCLUSIONS:

1.  Evidence available to the Board confirms the applicant was eligible for consideration for promotion to major in 2005 based on his adjusted date of rank to captain resulting from constructive credit he received prior to being appointed as a National Guard officer in 2003.

2.  As a result of consideration by a special selection board in May 2007, the applicant was selected for promotion with an effective date of 24 March 2005, the date he would have been promoted had he been considered for promotion to major in due course.  The fact that he was promoted via the National Guard unit vacancy program should not impact his original promotion eligibility status.

3.  In view of the foregoing it would be appropriate and in the interest of justice and equity to correct the applicant's records to show that he was promoted to the rank of major effective and with a date of rank of 24 March 2005 with concurrent Federal recognition and entitlement to any appropriate back pay and allowances resulting from this correction.



BOARD VOTE:

___X_____  ____X____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that he was promoted to the rank of major effective and with a date of rank of 24 March 2005 with concurrent Federal recognition and entitlement to any appropriate back pay and allowances resulting from this correction.



      _____________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)                                         AR20080016401



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ABCMR Record of Proceedings (cont)                                         AR20080016401



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