IN THE CASE OF:	  

		BOARD DATE:	        28 July 2009 

		DOCKET NUMBER:  AR20090004103 


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 his records be corrected to show his date of rank to captain as 2 March 2004 instead of 9 September 2004 or, in the alternative, 5 May 2004.

2.  The applicant states his date of rank to first lieutenant was 2 March 2002 and he was assigned to a captain position on 2 March 2004.  He further states that he had completed all military and civilian required education requirements.  He states that he was originally given a date of rank to captain of 22 July 2004 but it was changed to 9 September 2004. 

3.  The applicant provides orders promoting him to first lieutenant and captain; three DA Forms 67-9 (Officer Evaluation Report) covering the period 30 June 2001 through 2 May 2004; DA Forms 1059 (Service School Academic Evaluation Report) for the Signal Officer Advanced Course and for the Signal Officer Basic Course; and civilian college transcripts.

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.  The applicant's military records show he enlisted in the Army National Guard (ARNG) on 6 February 1990.  He was awarded the military occupational specialty of unit level communications maintainer, and was promoted to pay grade E-6.  He was appointed as a second lieutenant on 3 March 2000 and promoted to first lieutenant on 2 March 2002.

3.  Records show that while serving in an ARNG unit, examination of the applicant's records was completed by an ARNG Federal Recognition Examining Board on 22 July 2004 and it recommended he be granted Federal Recognition in the rank of captain.

4.  The ARNG granted the applicant Federal recognition and promoted him to captain effective 9 September 2004.

5.  In the processing of this case, an advisory opinion was obtained from the National Guard Bureau (NGB).  The NGB recommends disapproval of the applicant's request for adjustment of his date of rank to 2 March 2004.  The NGB states that his promotion was processed in a timely fashion and there were no documents provided to show he was assigned to a captain position on the date requested.  The NGB further states that state order 210-016, dated 28 July 2004, lists his promotion effective date as 22 July 2004 and the entry was lined out and reentered as 9 September 2004, which is the correct effective date as stated in Federal Recognition Order Number 221 AR, dated 9 September 2004.
  
6.  The advisory opinion indicates the applicant met time in grade, military education, and civilian education requirements for promotion to captain on 2 March 2004.  The NGB states there were no orders presented in the applicant's application or found in his Official Military Personnel File to verify when he was assigned to a captain position as required by National Guard Regulation 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions), chapter 8.

7.  The advisory opinion further states under the provisions of the Reserve Officer Personnel Management Act (ROPMA), the effective date of promotion and date of rank for an officer who is promoted under the position vacancy promotion system will be the date the Chief, NGB extends Federal Recognition.

8.  The applicant was provided a copy of the advisory opinion and submitted a rebuttal.  In that rebuttal the applicant refutes the NGB official's statement that there was no evidence the applicant was assigned to a captain position on 2 March 2004 by stating he was in the same captain position from the date of his initial appointment as a second lieutenant in March 2000 until February 2006.  He provides copies of his promotion orders to first lieutenant and captain showing his duty assignment to the same paragraph and line number (indicating duty position).  He also asserts that while he should have a promotion effective date and date of rank of 2 March 2004, in the alternative a Federal Recognition Board should have been conducted on 2 March 2004 instead of 22 July 2004 giving him a date of rank of 5 May 2004.

9.  National Guard Regulation 600-100, paragraph 8-15, requires an officer selected for promotion to be Federally recognized prior to being promoted in the ARNG.  This regulation also states that the promotion of officers in the ARNG is a function of the State.

10.  Table 2-1 of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) shows the minimum years in the lower grade for promotion to captain is 2 and the maximum years in the lower grade is 5 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant asserts in his rebuttal to the NGB advisory opinion that he should have a promotion effective date and date of rank of 2 March 2004 or in the alternative a Federal Recognition Board should have been conducted on 2 March 2004 instead of 22 July 2004 affording him a date of rank of 5 May 2004.

2.  While the applicant provided orders showing his duty assignment at the time of his previous promotions, this alone is insufficient evidence to verify he was assigned to a captain position on 2 March 2004.  However, even if sufficient evidence was available it would not constitute an error or injustice, since the promotion of officers in the ARNG is a function of the State.

3.  While the applicant believes that the promotion process should have started immediately upon him reaching the minimum time in grade for promotion to captain, the ARNG is not bound to any timetable for unit vacancy promotions.

4.  After the applicant was recommended for promotion, he had to be granted Federal Recognition before he could be promoted.  The applicant’s effective date of promotion is the date he was afforded Federal Recognition. 
5.  There is no evidence there was any delay in the processing of the applicant's promotion to captain or the process for extending Federal Recognition.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

7.  As such, the applicant was properly considered and selected for promotion to captain.  Therefore, there is an insufficient basis to grant the applicant’s request for adjustment of his date of rank to captain in the Louisiana ARNG.

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)                                         AR20090004103



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090004103



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1