IN THE CASE OF:	  

		BOARD DATE:	    20 January 2010

		DOCKET NUMBER:  AR20090006185 


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 her date of rank (DOR) for promotion to colonel be changed from 1 September 2008 to 7 September 2006.

2.  The applicant states, in effect, that she was selected for promotion to colonel by the Department of the Army Reserve Components Colonel Selection Board dated 7 September 2006.  She states she was told she could not be promoted due to the unavailability of a colonel vacancy.  However, slots were available under the provisions of Personnel Policy Guidance for Contingency Operations in Support of the Global War on Terrorism.

3.  The applicant provides no additional evidence in support of her application.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned a first lieutenant in the Army Nurse Corps in the Michigan Army National Guard (MIARNG) on 3 December 1981 and has served continuously since that time.  She is currently assigned to the U.S. Army Reserve (USAR) Control Group (Reinforcement) in the rank of colonel.

2.  On 22 November 2005, the applicant was assigned as the Executive Officer to Michigan Detachment 24, Medical Detachment Forward 338.  The unit was ordered to active duty in support of Operation Enduring Freedom (OEF) effective 28 November 2005.

3.  On 8 December 2005, the applicant was assigned to Tripler Army Medical Center, Honolulu, HI.  The period of mobilization was 28 November
2005 - 27 November 2006.

4.  U.S. Army Human Resources Command, St. Louis, MO (HRC-STL) Memorandum, dated 7 September 2006, indicates the applicant was selected for promotion to colonel.  According to the memorandum the effective date of promotion would be one of the following dates:

	a.  16 April 2005;

	b.  the date Federal Recognition is extended in the grade of colonel; or

	c.  the date following the date Federal Recognition is terminated in her current USAR grade.

5.  The memorandum contains a handwritten note that Senate confirmation was received on 29 September 2006.

6.  HRC, Alexandria, VA (HRC-ALEX) Orders A-11-629001, dated 21 November 2006, as modified, extended the applicant on active duty until 19 May 2007 for completion of medical care and treatment.  

7.  HRC-ALEX Orders A-05-71180, dated 11 May 2007, as modified, further extended the applicant on active duty until 11 May 2008 for completion of medical care and treatment.

8.  Department of Military and Veterans Affairs, Lansing, MI Orders 052-071, dated 21 February 2008, promoted the applicant to the rank of colonel effective 21 February 2008.  Additional instructions in these orders state the applicant will not wear the new rank or be paid in the new rank until Federal Recognition is confirmed.  These instructions also state the applicant's effective date/DOR will be the date permanent Federal Recognition is extended.

9.  There is no record of the applicant being extended Federal Recognition in the rank of colonel.

10.  On 19 May 2008, the applicant was released from active duty and returned to her MIARNG unit in the rank of lieutenant colonel.  She had completed 
2 years, 5 months, and 22 days of active service that was characterized as honorable.

11.  On 1 June 2008, the applicant was transferred to Chief, Case Management MIARNG Medical Command.  There is no evidence that this was a colonel vacancy.

12.  On 31 August 2008, the applicant was transferred to the USAR Control Group (Reinforcement).  Federal Recognition in the grade of lieutenant colonel was withdrawn effective 31 August 2008.

13.  HRC-STL Orders B-03-901580, dated 10 March 2009, promoted the applicant to the rank of colonel with an effective date and DOR of 1 September 2008.

14.  In the processing of this case an advisory opinion was received from 
HRC-STL, dated 22 April 2009.  HRC-STL states the applicant was promoted to the rank of colonel on 1 September 2008, one day after the withdrawal of her Federal Recognition in the rank of lieutenant colonel on 31 August 2008.  
HRC-STL stated earlier promotion would have to be coordinated by the National Guard Bureau (NGB) for justification as to why the applicant was not promoted earlier.

15.  In the processing of this case an advisory opinion was received from the NGB.  The NGB recommended partial approval of the applicant's request by changing her DOR to 29 September 2006 and that she receive all back pay and allowances.  The NGB states that the applicant should have been promoted to the grade of colonel upon receipt of Senate confirmation based on personnel policy guidance provided by the Department of the Army, Deputy Chief of Staff G-1 concerning mobilized Reserve Component officers (including Army National Guard).  The NGB states that according to this policy a mobilized officer who is selected for promotion by a Department of the Army Mandatory Promotion Board and is on an approved promotion list shall be promoted without regard to the existence of a vacancy.  On 2 December 2009, the applicant concurred with the advisory opinions.

16.  A memorandum, dated 1 September 2004, from the Chief of Personnel Policy and Readiness Division, NGB, Subject: Clarification of Policy to Promote DA Select Mobilized Officers at Maximum Time in Grade (NGB-ARH memo 
#4-0025), states that ARNG (Army National Guard) officers recommended for promotion to the grades of captain through lieutenant colonel mobilized under the provisions of Title 10, United States Code (USC), Sections 12301(a), 12302, and 12304 and who are on an approved mandatory selection board promotion list who reach their maximum time in grade will be promoted without regard to the existence of a vacancy unless that officer has voluntarily delayed or declined promotion.
17.  Office of the Assistant Secretary, Manpower and Reserve Affairs Memorandum, dated 14 January 2005, Subject: Promotion of Volunteers on Active Duty under the Provisions of Title 10, USC, Section 12301(d), established policy for promotion of certain Reserve Component (RC) officers to the grades of captain through colonel.  In accordance with this memorandum an Army National Guard of the United States (ARNGUS) officer covered by this policy memorandum, recommended for promotion to the next higher grade by a mandatory promotion board, and on an approved promotion list, may be promoted immediately when appointed in the state against a vacant position of the higher grade in a federally recognized unit in the National Guard.  An officer promoted under this policy memorandum should be assigned to that position against which they were matched or appointed within 180 days after completing his or her current tour of active duty, i.e. the tour of duty on which the officer is servicing at the time of promotion under this policy.  If an officer, upon completing his or her current tour of active duty declines or is unwilling or unable to occupy the position against which the officer was matched or appointed, the officer, whether a member of the USAR or ARNGUS, shall be transferred immediately to the Individual Ready Reserve unless the officer is assigned to some higher grade RC position within 180 days after completing his or her current tour of active duty.

18.  This memorandum further points out that, in accordance with Title 10, USC Sections 14304(b) and 14316(d), a mobilized RC officer who has been recommended for promotion to the grades of captain through lieutenant colonel by a mandatory promotion  board, and who are on an approved promotion list, shall be promoted without regard to the existence of a vacancy or placement against a position of a higher grade under this policy memorandum on the date on which the officer completes the maximum years of service as specified in Title USC, Section 14304(a).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her DOR to the grade of colonel should be adjusted 
to 7 September 2006.   

2.  The NGB memorandum, dated 1 September 2004, concerning the promotion of mobilized ARNG officers applies only to those officers recommended for promotion to the grades of captain through lieutenant colonel.  Therefore, this provision does not apply to the applicant's promotion to colonel.


3.  Office of the Assistant Secretary, Manpower and Reserve Affairs Memorandum, dated 14 January 2005, is the latest guidance concerning the promotion of USAR and ARNG officers who are mobilized.  This memorandum was in effect at the time of the applicant's selection for promotion to colonel and this policy is still in effect today.

4.  According to this memorandum, the provisions for promoting mobilized ARNG officers without regard to the existence of a vacancy or placement against a position of the higher grade only applies to those officers recommended for promotion to captain through lieutenant colonel.  Therefore, this provision does not apply to the applicant's promotion to colonel.

5.  The applicant's promotion was to colonel; therefore, she could only be promoted when appointed in the state against a vacant position of the higher grade in a federally recognized unit.  There is no evidence that she was appointed in the MIARNG against a vacant position of the higher grade of colonel.

6.  The applicant was promoted to colonel on 1 September 2008, the day following her transfer to the USAR and the withdrawal of Federal Recognition as a lieutenant colonel.

7.  Notwithstanding the opinion provided by the NGB, there are no provisions to change the applicant's DOR for promotion to colonel to an earlier date because she was not appointed in the state against a vacant position of the higher 
grade in a federally recognized unit in the MIARNG.  Therefore, her DOR of 
1 September 2008 is correct.

8.  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.

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)                                         AR20090006185



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ABCMR Record of Proceedings (cont)                                         AR20090006185



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