IN THE CASE OF:	  

		BOARD DATE:	        21 APRIL 2009

		DOCKET NUMBER:  AR20080017298 


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 promotion and Federal Recognition effective date for captain be corrected to reflect December 2007 vice 21 March 2008.

2.  The applicant states the Federal Recognition Board (FRB) normally takes 90 days to complete.  However, due to an administrative error and a lack of communication between the National Guard Bureau and the State of Michigan, the applicant states that his promotion packet was rejected and not resubmitted until December.  He states during his deployment to Iraq he completed all the necessary requirements for promotion and his packet was submitted and approved by the state on 1 October 2007.  He states the error caused an additional delay to the Federal Recognition process.

3.  The applicant provides a copy of his October 2007 state promotion order and a copy of his March 2008 Federal Recognition order.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate the applicant was appointed as a second lieutenant with the Michigan Army National Guard on 13 September 2003.  He was promoted to the rank of first lieutenant effective 13 September 2005 with Federal Recognition extended that same date.

2.  On 25 July 2006 the applicant was ordered to active duty with his Army National Guard Unit in support of Operation Iraqi Freedom.  The applicant was serving in Iraq on 1 October 2007 when the State of Michigan issued Orders 
274-021 promoting him to the rank of captain effective 18 September 2007.  The orders which announced his promotion to captain noted that the applicant would “not wear new rank until Federal Recognition is confirmed” and that the “effective date/DOR [date of rank] will be the date permanent Federal Recognition is extended.”

3.  The applicant was released from active duty on 19 November 2007 and returned to Michigan with his Army National Guard Unit.

4.  On 31 March 2008 the Army National Guard Bureau published special orders number 83 AR extending Federal Recognition to the applicant and several other officers, effective 21 March 2008 as a result of their various promotions.  In addition to the applicant, six other officers were extended Federal Recognition in the rank of captain on this same order.

5.  In the processing of this application an advisory opinion was provided by the Acting Chief of the NGB Personnel Division.  The opinion recommended the applicant’s request be denied.  The opinion noted the applicant was promoted based on the position vacancy promotion system under the provisions of National Guard Regulation (NGR) 600-100 and the Reserve Officer Personnel Management Act (ROPMA).  The opinion stated that the effective date of promotion for an Army National Guard commissioned officer who is promoted in the State is the date the Chief, National Guard Bureau extends Federal Recognition.  The opinion indicated that processing time for Federal Recognition takes approximately 90 to 120 days because of the number of officials involved in the processing.

6.  Attached to the advisory opinion was an e-mail from a Michigan Army National Guard Command Chief Warrant Officer which noted that during the period in question a new process had been implemented to electronically upload Federal Recognition packets.  It noted that at the end of October 2007 it was found that the applicant’s packet had been deleted from the system and that over the next two months while the majority of packets had been fixed problems continued to occur with the uploading of the applicant’s packet.  She noted the applicant’s packet was finally placed on the roll in December 2007.  She concluded that the applicant’s “case got caught up in a system change that kept his promotion from being processed in a timely manner.”

7.  In response to the advisory opinion, the applicant noted the basis for his request was that he met all of the promotion criteria to be promoted under the National Guard Regulation and under ROPMA and submitted the promotion packet in September 2007.  He notes that when he began checking on the status of the packet he was told to “quit bothering people and let the system work” and to “be patient.”  He states when he made another inquiry in December 2007 he discovered the packet had been rejected due to an administrative oversight.  Citing the opinion’s statement that even if Federal Recognition took between 90 and 120 days the “promotion should have been approved in January 2008.”  He maintains there was clearly an oversight by the State of Michigan and the National Guard Bureau.

8.  In the processing of this case the analyst reviewed five of the other six available promotion orders pertaining to officers who were extended Federal Recognition in the rank of captain on the same Federal Recognition order as the applicant.  That review revealed an average of 83 days between the date the officer was originally selected for promotion and the date Federal Recognition was extended.  There was a period of 186 days that elapsed between the date the applicant was originally selected for promotion (18 September 2007) and the date he was extended Federal Recognition (21 March 2008).

9.  NGR 600-100 states that the promotion of officers in the Army National Guard is a function of the State and that the effective date of promotion for an Army National Guard officer who is promoted in the State is the date the Chief, National Guard Bureau extends Federal Recognition, unless otherwise provided by law.  To be considered for Federal Recognition and subsequent Reserve of the Army promotion following State promotion to fill a vacancy, an Army National Guard commissioned officer must:

	a.  be in and remain in an active status until Federal recognition in the higher grade is extended.
	b.  be medically fit and meet height and weight standards
	c.  complete the minimum years of time in grade (for promotion to captain the requirement is 2 years time in grade as a lieutenant)
	d.  complete the minimum military education requirements (for promotion to captain the requirement is any officer basic course or equivalent
	e.  complete the minimum civilian education requirement (for promotion to captain the requirement is a baccalaureate degree)
	f.  pass an Army Physical Fitness Test within the a prescribed timeframe.

10.  That same regulation states that a FRB will review the records of an eligible commissioned officer recommended for promotion.  The FRB will consider documentary evidence submitted by the officer’s commander together with appropriate official files, including medical records, officer evaluation reports, training certificates and academic reports, evidence of civilian education, and other pertinent documents that cite the officer’s manner of performance.  Such records will be made available by the State Adjutant General.  FRBs will review each recommendation under guidance provided by the Secretary of the Army regarding standards for promotion of Army National Guard commissioned officers as Reserve commissioned officer of the Army.  In the case of commissioned officers promoted to fill vacancies, the regulation specifies documents and records which must be forwarded to the Chief, National Guard Bureau.

DISCUSSION AND CONCLUSIONS:

1.  The applicant argues that his Federal Recognition in the rank of captain was delayed because of communication issues between the State of Michigan and the National Guard Bureau.  While the advisory opinion provided by the National Guard Bureau speaks to regulatory requirements for promotion effective dates, it did not speak to the applicant’s specific allegations, in spite of having had contact with the Michigan Army National Guard Command Chief Warrant Officer who basically confirmed the applicant’s allegations.

2.  The evidence of record confirms the applicant met promotion requirements when orders were issued by the State of Michigan on 1 October 2007 promoting him effective 18 September 2007.  The information contained in the e-mail from the Michigan Army National Guard Command Chief Warrant Officer confirms the applicant’s Federal Recognition was delayed because of newly-implemented procedures which needed to be worked through and were not the fault of the applicant.

3.  The March 2008 National Guard Bureau Federal Recognition order reflects six other officers who were granted Federal Recognition for captain on the same date as the applicant.  However, the average time between the original state promotion and Federal Recognition for five of those six other officers was only 83 days.  The applicant’s waited 186 days.  Clearly the applicant was disadvantaged by the delay in processing his Federal Recognition packet which will ultimately adversely affect the date he is considered for future promotions as well as the loss of pay and allowances.  The applicant should not be penalized by a promotion system for which he had no control over.  

4.  The advisory opinion from the National Guard Bureau stated that the average processing time for Federal Recognition was 90 to 120 days, although it is noted on this particular Federal Recognition Orders the average time between the state promotion and Federal Recognition for five of the seven captains on this order was only 83 days.  It would be reasonable to conclude that had the applicant’s Federal Recognition packet been processed appropriately without the extensive delay his Federal Recognition would likely have occurred within 90 to 120 days of his September 2007 state promotion.  As such, it would be appropriate and in the interest of justice to correct the applicant’s record to show he was promoted to and granted Federal Recognition as a captain effective 18 December 2007.  Although the 18 December 2007 date may have slightly exceeded the 83 day average for the other officers, based on the average processing time noted by the National Guard Bureau, utilizing the 90 days average is both fair and equitable in this case.

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 state Army National Guard records and Department of the Army records of the individual concerned be corrected, as appropriate, by:

	a.  amending National Guard Bureau Special Orders Number 83 AR, dated 31 March 2008, to show he was granted Federal Recognition to the rank of captain with an effective date of 18 December 2007; and

	b.  paying the applicant any adjustment of pay due as a result of these changes.



      _______ _   _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)                                         AR20080017298





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ABCMR Record of Proceedings (cont)                                         AR20080017298



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