BOARD DATE:	  2 February 2010

		DOCKET NUMBER:  AR20090005791 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, adjustment of the applicant's promotion effective date of rank for captain (CPT) and lieutenant colonel (LTC).  He also requests associated back pay and allowances.

2.  Counsel states, in effect, the applicant was promoted from first lieutenant (1LT) to CPT while assigned to the Florida Army National Guard (FLARNG).  The applicant was selected for promotion to CPT in March 1996.  At the time, the applicant was told that there were no CPT billets/positions available for him in the FLARNG and he would have to either decline the promotion to CPT or accept the promotion and be transferred to the U.S. Army Reserve (USAR).

3.  Counsel states that the applicant elected to decline the promotion to CPT in spite of the fact that he was serving as the acting detachment commander, a CPT position, while slotted in an assistant detachment commander position.

4.  Counsel states that on September 1996, the applicant was slotted against a CPT position by paragraph and line number and he was never told this.  "In fact, he only learned of the existence of the attached orders prior to his recent deployment to Iraq.  Had he known of the existence of these documents at the time, the applicant would have revoked his declination letter."

5.  Counsel states by slotting the applicant in a CPT position, his commander proved that there was no valid reason he could not have been placed in a CPT slot prior to September 1996 and no reason why the applicant should have waited for an entire year.  The applicant later found out there were several officers in CPT slots who were not drilling and could have been released.  The applicant's command could easily have placed the applicant in a CPT slot in April 1996.

6.  Counsel continues that the applicant's declination of promotion was based solely on erroneous information from his chain of command.  He was not told that he could have been placed in a CPT slot in April 1996 and was never told that he was placed in a CPT in September 1996.  Had the applicant known of the former he would never have declined his promotion to CPT.

7.  Counsel provides:

	a.  a memorandum from the U.S. Total Army Personnel Command, St. Louis, MO (USTAPC-STL), subject:  Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty, dated 1 March 1996, to the rank of CPT;

	b.  a memorandum from the FLARNG, subject:  Promotion as a Reserve Officer of the Army (under 10 USC [Title 10, U.S. Code] and AR [Army Regulation 135-155), dated 2 April 1996, declining his promotion to 
CPT for one year until 22 May 1997;

	c.  FLARNG, Office of The Adjutant General, St. Augustine, FL, Orders
P100-002, dated 10 April 1997, promoting the applicant to CPT, effective 9 April 1997;

	d.  NGB Special Orders Number 197 AR, dated 25 October 1999, announcing change of Federal recognition status of the applicant based on his transfer to the USAR, effective 20 August 1999;

   e.  a memorandum from USTAPC-STL, subject:  Promotion as a Reserve Commissioned Officer of the Army in Active Guard Reserve [AGR] Status under the Provisions of Title 10, USC, Chapter 1405, dated 7 August 2003, to the rank of major (MAJ); and 
   
   f.  U.S. Army Human Resources Command (USAHRC), Ft. Louis, Orders
B-01-900473, dated 21 January 2009, promoting the applicant to LTC, effective 16 December 2008.


CONSIDERATION OF EVIDENCE:

1.  The applicant had prior enlisted service.  On 12 September 1989, he was appointed as a Reserve Commissioned Officer of the Army at the rank of second lieutenant (2LT).  He was promoted to the rank of 1LT on 23 May 1992.

2.  On 21 September 1993, the applicant was appointed in the FLARNG.

3.  FLARNG, Orders 201-008, dated 14 October 1993, shows the applicant was assigned to Headquarters and Headquarters Detachment, 3rd Special Forces (SF) Battalion, 20th SF, in the position of detachment operations officer, while attached to A Company, 3rd SF Battalion, 20th SF, effective 22 September 1993.

4.  FLARNG, Orders 052-012, dated 21 February 1995, shows the applicant was relieved from attachment to A Company, 3rd SF Battalion, 20th SF, effective
28 February 1995.  He was then transferred from Headquarters and Headquarters Detachment, 3rd SF Battalion, 20th SF and assigned to A Company, 3rd SF Battalion, 20th SF as the assistant detachment commander, effective 1 March 1995.

5.  By memorandum, dated 1 March 1996, the applicant was notified by USTAPC-STL that he was considered and selected for promotion to CPT with the effective date of 22 May 1996 or the date of Federal Recognition in the higher grade.

6.  By memorandum, subject "Promotion as a Reserve Officer of the Army," dated 2 April 1996, the applicant elected to delay his promotion to the grade of CPT until 22 May 1997.  In this memorandum he acknowledged that he understood that by declining the promotion his name will be retained on the promotion list for the maximum period authorized, unless promoted to the grade for which selected, or his name was removed from the list for some other reason. If he declined promotion to the grade of CPT, he understood that his name would be removed from the list.  He further, understood that his declination would not prevent him from being considered for promotion to the grade of CPT by a subsequent promotion board, and if he failed to decline the promotion, he would be transferred to the USAR where he would be promoted or discharged.

7.  FLARNG Orders P241-020, dated 28 August 1996, shows the applicant was relieved from A Company, 3rd SF Battalion, 20th SF as the assistant detachment commander and assigned as the detachment commander, effective 2 September 1996.

8.  FLARNG, Orders 100-002, dated 10 April 1997, shows the applicant was promoted to CPT, effective 9 April 1997, while in the detachment commander position.

9.  NGB Special Orders Number 781 AR, dated 22 April 1997, extended permanent Federal recognition for the purpose of promotion to the rank of CPT in the FLARNG, effective 22 April 1997.

10.  FLARNG, Orders P232-00, dated 20 August 1999, shows the applicant was honorably discharged from the FLARNG and transferred to the USAR.

11.  USTAPC-STL memorandum, dated 7 August 2003, shows the applicant was promoted to the rank of MAJ, effective 17 July 2003.

12.  USHRC-STL, Orders B-01-900476, dated 21 January 2009, show the applicant was promoted to the rank of LTC, effective 16 December 2008.

13.  During the processing of this case, an advisory opinion was obtained from the Chief, Personnel Division, NGB.  The advisory official recommended disapproval of the applicant's request to adjust his promotion effective dates of rank for CPT and LTC based on the fact that the applicant voluntarily elected to decline his promotion to CPT for one year until 22 May 1997.  A copy of the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

14.  National Guard Regulation 600-100 (Commissioned Officer-Federal Recognition and Related Personnel Actions), chapter 8, states declination of a mandatory promotion will be accomplished in accordance with Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers).  The governor or his designated representative, in any increment up to a maximum of three years, may grant the declination period from the date the promotion board adjourned.  Officers must transfer to the USAR Control Group and accept promotion to the next higher grade effective the last day of the declination.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, through counsel, contends that his promotion to the ranks of CPT and LTC should be adjusted with the associated back pay and allowances.

2.  The applicant, through counsel, contends that in April 1996 he was slotted against a CPT's paragraph and line number position and that had he known there were orders placing him in a CPT position, he would not have agreed to his declination for promotion to CPT.

3.  Evidence of record shows at the time the applicant was selected for promotion to CPT in March 1996, he was serving as the assistant detachment commander of A Company, 3rd SF Battalion, 20th SF.  On 2 April 1996, the applicant declined his promotion to CPT for a period of one year.  On 2 September 1996, the applicant was assigned to the detachment commander [CPT] position.  
On 22 April 1997, the applicant was promoted to the grade of CPT.  There is no evidence in the available records that show he was in a CPT's position prior to his declination for promotion to CPT nor is there any evidence that his chain of command mislead him in his promotion to CPT.

4.  Additionally, the applicant's records clearly show that he voluntarily requested delay in accepting promotion to the rank of CPT.  As a result of his voluntary delay in promotion, his records are correct as currently constituted.

5.  Based on the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090005791



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ABCMR Record of Proceedings (cont)                                         AR20090005791


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