IN THE CASE OF:	

		BOARD DATE:	17 September 2009    

		DOCKET NUMBER:  AR20090003692 


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, that his captain (CPT) date of rank (DOR) and Federal Recognition date be changed to 6 March 2007; and that he be provided all back pay and allowances due as a result.   

2.  The applicant states, in effect, that his request should be approved for the following reasons:  due to the loss of his packet or the failure of his packet being submitted to the mandatory board in November 2006; the failure to properly submit him for Federal Recognition and promotion to the rank of first lieutenant (1LT) in March 2005; the inconsistently applied regulations which were used to deny him the opportunity to go before a promotion board in July 2007; the failure to put him before a board in August 2007; and errors or technical issues which delayed Federal Recognition and promotion to CPT for an additional 1 1/2 months in late 2007.   

3.  The applicant provides no additional documentary evidence in support of his application; however, he refers to discharge and re-commissioning documents correcting errors in his Federal Recognition that are available through the Michigan Army National Guard (MIARNG) as documents supporting his application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he was initially appointed a first lieutenant and granted Federal Recognition in the Michigan Army National Guard (MIARNG) on 23 March 2005.  

2.  On 1 October 2007, State of Michigan, Department of Military and Veterans Affairs, Orders 274-038, promoted the applicant to captain, effective 
18 September 2007.  

3.  On 6 March 2008, the applicant was granted Federal Recognition, in the rank of captain, in National Guard Bureau (NGB) Special Orders Number 66 AR, dated 10 March 2008.  

4.  In connection with the processing of this case, an advisory opinion was obtained from the NGB Chief, Personnel Division.  Included with this advisory opinion was an electronic mail (e-mail) message from a MIARNG Officer Branch Manager, in which it was indicated that a review of the applicant's situation revealed that the applicant was appointed in the MIARNG, on 23 March 2005, and he was moved into a captain position non-qualified, on 1 March 2006.  The applicant completed the necessary training to qualify for the position, on 3 August 2007, was fully qualified and recommended for a vacancy promotion, and he was put before the 18 September 2007 Federal Recognition board.  

5.  The MIARNG Officer Branch Manager further stated that there were several issues with the system used by the NGB to upload the applicant's packet and a simple misspelling of "Squadron" delayed the NGB from processing the promotion packet.  This State official further stated that on average it takes
4 months from the date of the State promotion board for Federal Recognition to be granted by the NGB.  Based on this normal processing timeline, this official concluded the applicant's promotion to CPT was delayed approximately 
2 months.  

6.  The NGB Chief, Personnel Division, after reviewing this input from the State, indicated the NGB recommended disapproval of the applicant's request to have his CPT Federal Recognition date, promotion effective date and date of rank changed to 6 March 2007.  This recommendation was based on the promotion regulatory guidance contained in National Guard Regulation (NGR) 600-100 and the Reserve Officer Personnel Management Act (ROPMA) for position vacancy promotions.  He further states that under the governing regulatory guidance and statutory guidance contained in the ROPMA, the effective date of an Army National Guard (ARNG) commissioned officer who is promoted in the State under the position vacancy system is the date the Chief, NGB extends Federal Recognition based on the approved scroll list from the Secretary of Defense.  The promotion effective date is not the date of appointment to the position or the date of the State Federal Recognition board.  Scroll lists take approximately 90 to 120 days to be approved by the Secretary of Defense due to processing and staffing requirements.  


7.  On 3 June 2009, the applicant submitted an e-mail message responding to the NGB advisory opinion.  In it, he stated that he was providing a document he submitted to his chain of command in late 2007 for consideration.  He indicated that he was told many things and given several excuses for why things were not happening so he frankly does not know what the truth is.  He indicated that he felt members of the ARNG just came up with reasons not to promote him until they finally found one that stuck for a while.  He outlined other difficulties he had experienced and stated that while his chain of command tried to track the matters, from a Soldier’s point of view, they seemed to go into a black hole.  

8.  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, time in grade, 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 8-2 stipulates that the effective date of promotion for an ARNG officer who is promoted in the State is the date the Chief, NGB extends Federal Recognition. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his CPT DOR and Federal Recognition should be changed to 6 March 2007, and he should be provided all back pay and allowances due as a result was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms the applicant was identified and promoted by the State under the unit vacancy promotion system.  By regulation, the effective date of this promotion is the date the Chief, NGB extends Federal Recognition, which in this case was 10 March 2008.  

3.  The MIARNG Officer Branch Manager indicates there were errors in uploading the applicant's promotion packet on the NGB system and that these minor errors appear to have resulted in a possible delay in the applicant's promotion effective date to CPT approximately 2 months.  Given the MIARNG Officer Branch Chief confirms errors were made in processing the applicant's promotion at the State level, and that these errors caused no more than a
2 month delay in the applicant's promotion date, there does not appear to be a compelling basis to support changing the applicant’s promotion date by 1 year as he has requested.  
4.  Although it appears there may have been processing errors that could have delayed the applicant's promotion slightly, as evidenced by the e-mail message provided by the MIARNG Officer Branch Manager, the NGB Chief, Personnel Division, explains the processing delays were caused by errors at the State level that occurred during the processing of the applicant’s promotion packet.  Given this delay was not extraordinary and did not excessively exceed normal processing times, there appears to be no significant error or injustice related to the delay in the applicant being extended Federal Recognition, in the rank of CPT, by the Chief, NGB that would cause this Board to substitute its judgment for that of the Chief, NGB.  As a result, absent any compelling evidence of error in the NGB processing of Federal Recognition in the applicant's case, there is an insufficient evidentiary basis to support granting the requested relief in this case. 

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)                                         AR20090003692



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ABCMR Record of Proceedings (cont)                                         AR20090003692


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