IN THE CASE OF:	  

		BOARD DATE:	  23 April 2009

		DOCKET NUMBER:  AR20090000712 


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, an adjustment of his date of rank (DOR) for captain (CPT) from 16 December 2008 to 21 May 2007. 

2.  The applicant states, in effect, that his DOR to CPT should be adjusted to 
21 May 2007.  He was erroneously commissioned a second lieutenant (2LT) instead of a first lieutenant (1LT) after graduating from the Interservice Physician Assistant (IPA) course and earning his Physician Assistant Masters Degree.  In 2007, this Board adjusted his DOR for 2LT and in 2008, this Board reconsidered his case and adjusted his DOR for 1LT to 21 May 2005.  He further states that based on his DOR to 1LT he met the minimum 2 year time in grade (TIG) requirement for promotion to CPT, on 21 May 2007, and he is now requesting that his CPT DOR be adjusted accordingly. 

3.  The applicant provides the following documents in support of his application:  National Guard Bureau (NGB) Special Orders Number 330 AR, dated 18 December 2008; Joint Forces Headquarters (JFH), Louisiana (LA), Office of The Adjutant General (OTAG) Orders Number 139-015, dated 19 May 2005;
JFC LA OTAG Orders Number 139-016, dated 19 May 2005; Oath of Office, dated 21 May 2005; JFC LA OAG Orders Number 089-1158, dated 30 March 2006; Oath of Office, dated 14 March 2006; National Guard Bureau (NGB) Special Orders Number 178 AR, dated 17 July 2006; Service School Academic Evaluation Reports (DA Form 1059); Record of Award of Entry Grade Credit
(DA Form 5074-1-R; JFC LA OTAG Orders Number 206-1117, dated 24 July 2008; Proceedings of a Federal Recognition Examining Board (NGB 89), dated 
2 September 2008; NGB Promotion Memorandum, dated 18 December 2008; JFC LA OTAG Orders Number 246-1102, dated 2 September 2008; Applications for Correction of Military Record (DD Forms 149); JFH LA OTAG Memorandum, dated 13 September 2007; Army Review Board Agency Letter, dated 
6 September 2007; Self Authored Statement, dated 10 February 2008; NGB Memoranda, dated 30 March 2007 and 7 February 2008; ABCMR Record of Proceedings, dated 17 January 2008; NGB Advisory Opinion Memorandum, dated 4 September 2007; ABCMR Record of Proceedings, dated 3 June 2008; NGB Forms 89; Application for Federal Recognition as an Army National Guard Officer (NGB Form 62-E); University of Nebraska Diploma; Nebraska Medical Center Academic Transcript; and NGB an Interservice Physician Assistant Program Training Board Selection, dated 2 October 2002.  

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he served in the Louisiana Army National Guard (LAARNG), in an enlisted status from 8 March 1994 until 20 May 2005 when he was honorably separated to accept a commission.  

2.  JFH LA OTAG Orders Number 139-015, dated 19 May 2005, discharged the applicant from his enlisted status in the LAARNG, and JFH LA OTAG Orders Number 139-016, dated 19 May 2005, appointed him a 2LT in the LAARNG with an effective DOR of 21 May 2005.  On 21 May 2005, the applicant executed an Oath of Office accepting appointment as a 2LT in the LAARNG and he was granted temporary Federal Recognition.

3.  There is no evidence that the applicant received permanent Federal Recognition as a 2LT from the NGB within the 6 month period required by National Guard/Army regulations.  As a result, his temporary Federal Recognition expired.

4.  On 13 March 2006, a second Federal Recognition Board was held by the LAARNG and JFH LA OTAG Orders Number 089-1158, dated 30 March 2006, appointed the applicant a 2LT in the LAARNG, effective 14 March 2006, and on that same date, the applicant executed a second Oath of Office as a 2LT in the  LAARNG.  

5.  NGB Federal Recognition Orders Number 178 AR, dated 17 July 2006, awarded the applicant permanent Federal Recognition for an initial appointment in the grade of 2LT, effective 14 March 2006.

6.  The applicant's Official Military Personnel File (OMPF) contains Certificates of Training (DA Form 1059) which show he successfully completed Phase I of the Interservice Physician Assistant (IPA) Course, Class 02-03, on 23 April 2004; and Phase II on 20 May 2005.

7.  The applicant's OMPF contains a Record of Award of Entry Grade Credit (Health Services Officers), dated 25 April 2006, which shows he was granted 
1 year of constructive service credit for his PA studies during the period 2 May 2003 through 13 May 2005.  

8.  On 1 March 2007, the applicant submitted an application to the ABCMR requesting his 2LT DOR be adjusted to 21 May 2005 vice 14 March 2006 based on having completed the IPA course on 23 April 2004, prior to the Federal Recognition Board on 19 May 2005.  

9.  On 17 January 2008, this Board recommended the applicant's record be corrected by adjusting his initial appointment date to 21 May 2005 with a DOR to 2LT of 14 March 2005, and that he be promoted to 1LT, effective 14 March 2007, with entitlement to all back pay and allowances.

10.  On 10 February 2008, the applicant submitted an application to the ABCMR requesting reconsideration of the Board's previous decision and again requesting his 1LT DOR be established as 14 March 2005.  

11.  On 3 June 2008, after review of additional evidence and an NGB advisory opinion the Board found the applicant's record should have been corrected to show he was initially appointed in the LAARNG as a 1LT effective 21 May 2005, with the same DOR.  The applicant's record was corrected accordingly.

12.  On 24 July 2008, the LAARNG published Orders Number 206-1117, amending the applicant's DOR for 1LT to 21 May 2005.

13.  The applicant was extended Federal Recognition and promoted to CPT effective 16 December 2008, as a result of a position vacancy board (PVB) that was approved on 2 September 2008.  There is no evidence the applicant was considered and selected for promotion to CPT prior to the 2008 PVB.


14.  National Guard Regulation 600-100 prescribes policies and procedures for the personnel management of ARNG officers.  Chapter 8 contains the policies for promotion of ARNG officers other than General Officers and states, in pertinent part, that the promotion of ARNG officers is a function of the State and will be based on efficiency, TIG, time in commissioned service, demonstrated command and staff ability, military and civilian education, and potential for service in the next higher grade.  Except as otherwise provided, officers will be promoted only when an appropriate position vacancy exists in the unit.  Paragraph 8-8 outlines the minimum TIG required for promotion by grade and states, in pertinent part, that a 1LT must complete a minimum of 2 years of TIG to be considered for promotion and Federal recognition as a CPT.  Although consideration takes place when an officer meets the minimum TIG requirement, actual promotion is not mandatory based solely on attaining minimum TIG and the authority to promote based on unit vacancy rests with the State. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DOR to CPT should be adjusted to 21 May 2007 instead of 16 December 2008 was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record shows the applicant was selected for promotion to CPT by a PVB that was approved on 2 September 2008.  His promotion packet was forwarded to the NGB for extension of Federal Recognition.  He was granted Federal Recognition and promoted to CPT with an effective date of 16 December 2008.  

3.  The applicant was not entitled to promotion to CPT until he was extended Federal Recognition on an approved position vacancy promotion.  His name was placed on a promotion list and the list was not approved until 2 September 2008. There is no indication that his promotion effective date and DOR for CPT was administratively delayed, unjust, or inequitable.  

4.  The applicant could not have been promoted without the benefit of an authorized position vacancy in May 2007.  Since there is no authorization for promotion to the next higher grade based on filling a position vacancy, when none existed, the applicant is not entitled to an adjustment of his DOR for CPT, as if he was promoted by and earlier Federal Recognition Examining Board.  He was appropriately promoted to CPT based on a recommendation by the Federal Recognition Examining Board that convened on 2 September 2008.   


5.  In the processing of this case, it was noted that the applicant has been neither considered nor selected for an earlier promotion to CPT by a PVB in 2007.  Therefore, he is not entitled to promotion to CPT upon completion of the 2 year minimum time in grade.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090000712



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ABCMR Record of Proceedings (cont)                                         AR20090000712



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