IN THE CASE OF:	  

		BOARD DATE:	       11 AUGUST 2009

		DOCKET NUMBER:  AR20090005740 


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 correction of his retirement orders (National Guard Bureau, Arlington, Virginia, Orders 79-12, dated 20 March 2009) and his State issued promotion orders (Departments of the Army and the Air Force, Joint Force Headquarters - Minnesota, Office of the Adjutant General, Saint Paul, Minnesota, Orders 004-999, dated 4 January 2007) to reflect his date or rank (DOR) as 31 August 2004.

2.  The applicant states, in effect, that he was selected for promotion to the rank of colonel by a Department of the Army Centralized board in March 2004 and his promotion eligibility date (PED) was determined to be 31 August 2004.  The applicant states he was required to sign an involuntary delay of promotion due to the lack of controlled grades and positions within the Army National Guard Active Guard Reserve Title 10 United States Code (USC) Program in July 2004.  He continues that he received Federal Recognition on 12 January 2007, whereupon his DOR should have reverted to his PED of 31 August 2004 under the provisions of Section 14311 of Title 10 USC due to the involuntary delay of promotion.  The applicant concludes that his DOR is incorrect on both his retirement orders and his promotion orders.

3.  The applicant provides copies of his retirement orders, three electronic mail messages, three memoranda, an extract from Title 10 USC, his Federal Recognition orders, and his promotion orders. 


CONSIDERATION OF EVIDENCE:

1.  The applicant is a member of the Minnesota Army National Guard currently serving on active duty in the Active Guard Reserve Program.  His career branch is Field Artillery and he holds the rank of colonel (COL)/pay grade O-6.  The applicant has an approved retirement with an effective date of 31 January 2010.

2.  The applicant provides United States Army Human Resources Command (USAHRC), St. Louis, Missouri, Memorandum, dated 2 March 2004, Subject:  Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty, which shows the applicant was selected for promotion to the rank of COL by a board which adjourned on 31 March 2004.  This memorandum further shows the applicant's PED was established as 31 August 2004.

3.  The applicant provides Army National Guard Readiness Center, Arlington, Virginia, Memorandum, dated 8 July 2004, Subject:  Notification of Involuntary Delay, which shows the applicant acknowledged the fact that he was among the AGR officer population that was under automatic delay of promotion at the time.

4.  Departments of the Army and the Air Force, Joint Force Headquarters - Minnesota, Office of the Adjutant General, Saint Paul, Minnesota, Orders 004-999, dated 4 January 2007, show the applicant was promoted to the rank of COL with an effective date and DOR of 4 January 2007.  The additional instructions portion of the orders provided that the "Effective date of the promotion will be the date the permanent Federal Recognition Order is published."

5.  Departments of the Army and the Air Force, National Guard Bureau, Washington, D.C., Special Orders Number 8 AR, dated 12 January 2007, shows the applicant received Federal Recognition for promotion to the rank of COL with an effective date of 12 January 2007 and a PED of 31 August 2004.  This order also provided that time in grade for promotion to the next higher grade is computed from the PED which is the officer's date of rank.

6.  Departments of the Army and the Air Force, National Guard Bureau, Arlington, Virginia, Memorandum, dated 12 January 2007, Subject:  Promotion as a Reserve Commissioned Officer of the Army, shows the applicant was promoted to COL with an effective date of 12 January 2007.  This memorandum also shows the applicant's PED and DOR as 31 August 2004.

7.  National Guard Bureau, Arlington, Virginia, Orders 79-12, dated 20 March 2009, show the applicant was approved to be retired from active duty and released from assignment and duty effective 31 January 2010.  These orders 
contain an entry which reads "Retirement grade/Date of rank:  O6/COL/12 January 2007."  The orders also contain an entry indicating they were prepared in accordance with Format 682 of Army Regulation 600-8-105 (Military Orders).

8.  The applicant provides three electronic mail messages, dated 3 April 2009, which essentially show that upon receipt of his retirement orders, he noticed they erroneously reflected his DOR as 12 January 2007 instead of 31 August 2004 and brought the error to the attention of authorities at the National Guard Bureau, Arlington, Virginia.  The authorities at the National Guard Bureau assumed the applicant was requesting to change his date of rank on all Army records and referred him to the Army Board for Correction of Military Records (ABCMR) in order to seek relief.

9.  During the processing of this case, an advisory opinion was obtained from the Chief of the Personnel Division of the National Guard Bureau, Arlington, Virginia, dated 9 June 2009.  The Chief, Personnel Division carefully considered the applicant's request and took corrective action.  The Personnel Division contacted the Minnesota Army National Guard who, in turn, amended the applicant's State promotion orders to show his effective date of promotion as 12 January 2007 and his DOR as 31 August 2004.

10.  The Chief, Personnel Division also had the applicant's retirement orders amended by replacing the statement "Retirement grade/Date of rank:  O6/COL/12 January 2007" with the amended statement "Retirement grade:  O6/COL."  He noted that the amended order contains the correct statement as shown in Army Regulation 600-8-105, figure 9-18, Format 682 which does not indicate that DOR should appear on the order.

11.  The Chief, Personnel Division concluded that the National Guard Bureau, Personnel Division considers this request to be satisfactorily resolved with the amendment of the applicant's State promotion orders and his retirement orders.

12.  Departments of the Army and the Air Force, Joint Force Headquarters - Minnesota, Office of the Adjutant General, Saint Paul, Minnesota, Orders 126-1033, dated 6 May 2009, amended Orders 004-999, dated 4 January 2007, from the same headquarters.  The portion of Orders 004-999 as reads "Effective date: 
4 January 2007 Date of Rank:  4 January 2007" was changed to read "Effective date:  12 January 2007 Date of Rank:  31 August 2004."

13.  National Guard Bureau, Arlington, Virginia, Orders 159-9, dated 8 June 2009, amended Orders 79-12, dated 20 March 2009, from the same headquarters.  The portion of Orders 79-12 as reads "Retirement grade/Date of rank:  O6/COL/12 January 2007" was changed to read "Retirement grade/Date of rank:  O6/COL."

14.  On 17 June 2009, the applicant, in effect, concurred with the comments rendered by the Chief, Personnel Division in his advisory opinion.  The applicant also acknowledged that his retirement orders had been properly amended.  However, the applicant contends that an amendment does not remove a perception on the original order that his DOR can be construed as 12 January 2007 and that burden is now placed upon him to adjudicate any possible disputes now or after retirement, that his DOR is actually 31 August 2004.  As a result, the applicant requests:  correction of all existing documents (to include his Officer Record Brief (ORB)) to reflect his DOR as 31 August 2004, that the National Guard Bureau rewrite his entire retirement order omitting any DOR reference, and the State of Minnesota provide him a copy of his amended promotion orders.

15.  Army Regulation 600-8-105 prescribes policies and mandated tasks governing military orders as a multifunctional program.  Orders are published to order individuals onto active duty or change the status of military personnel on active duty.  For example, orders appoint, assign, promote, demote, retire, separate, and authorize travel of family members.  This regulation describes formats for preparing most orders at all echelons of Active Army and Reserve Components organizations.  Figure 9-18 of this regulation prescribes the content of Orders Format 682 which is to be utilized for service retirement of commissioned or warrant officers serving on active duty.  In pertinent part it prescribes the following entry should appear on the orders "Retired grade of rank:  (Enter the retired grade of rank)."  Figure 9-18 does not show DOR anywhere amongst the prescribed entries for Orders Format 682.  This regulation also provides that an order may be corrected in the form of an amendment by the organization that published the original order to show the true state of affairs existing at the time the original order was published.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his retirement orders and his State issued promotion orders should be corrected to reflect his DOR as 31 August 2004 were carefully considered.

2.  Evidence shows the applicant's retirement orders and his State issued promotion orders were in error.  Evidence also shows that both orders have been amended by the organizations that published the original orders to show the true state of affairs existing at the time the original orders were published and in the formats prescribed by Army Regulation 600-8-105.
3.  Although the applicant concurred with the advisory opinion, he requested that:

	a.  his ORB be corrected to reflect his DOR as 31 August 2004;

	b.  that the National Guard Bureau rewrite his entire retirement order omitting any DOR reference; and

	c.  the State of Minnesota provide him a copy of his amended promotion orders.

4.  These additional requests were carefully considered:

	a.  correction of the applicant's ORB should be accomplished by his servicing Personnel Services Detachment;

	b.  Army Regulation 600-8-105 provides that an order may be corrected in the form of an amendment.  Therefore, the applicant's amended orders were properly constituted and require no further correction or revocation; and

	c.  a copy of the orders amending the applicant's State promotion orders will be included with these proceedings which will, in turn, be provided to the applicant.

5.  In view of the foregoing, the applicant's orders have been corrected in compliance with his initial requests.  Inasmuch as corrective action has already been taken, no effective relief can be granted by the ABCMR.

6.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement and there is no basis for granting his 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.



      _______ _   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)                                         AR20090005740





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090005740



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1