IN THE CASE OF:	  

		BOARD DATE:	  14 October 2009

		DOCKET NUMBER:  AR20090006794 


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 from 12 December 2006 to 12 July 2006, and that he be provided all back pay and allowances due as a result.   

2.  The applicant states, in effect, that unknown administrative delays by the National Guard Bureau (NGB), G-1, delayed his promotion to CPT.  He indicates his unit completed and submitted his vacancy packet to the Texas Army National Guard (TXARNG) in April 2006; a Federal Recognition Examining Board (FREB) convened on 28 April 2006 and recommended his promotion to CPT; he was transferred to assume a position as Commander, C Battery, 3rd Battalion, 133rd Field Artillery (FA) Regiment effective 1 May 2006; and he signed his Assumption of Command Memorandum on 11 May 2006.  The applicant also states that his branch was mistakenly recorded as Air Defense (AD); however, it was corrected and a second FREB convened on 6 July 2006, which recommended he be promoted to CPT on 12 July 2006.  He further states that he did not receive Federal recognition for CPT until 21 December 2006.  He indicates that as a first lieutenant (1LT) or CPT, he served on active duty from 12 July 2006 to 13 August 2008 in battalion staff level positions normally assigned to officers in the rank of major (MAJ) as both an Executive Officer and Operations Officer.

3.  The applicant provides Official Military Personnel File (OMPF) document extracts in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he was initially appointed a second lieutenant (2LT) and he was granted Federal recognition in the New Mexico Army National Guard (NMARNG) on 18 August 2001.

2.  On 4 February 2002, NGB Special Orders Number 32 AR again extended Federal recognition to the applicant in the rank of 2LT based on his change of state from the NMARNG to the TXARNG, effective 8 November 2001.

3.  The applicant was promoted to the rank of first lieutenant (1LT) and he was extended Federal recognition on 18 August 2003.

4.  On 19 April 2006, the TXARNG published Orders Number 109-1027, which show the applicant was released from a Fire Support Officer position and transferred him to a Command position effective 1 May 2006.  The TXARNG published Orders Number 123-1063 on 3 May 2006, directing the applicant's branch transfer from Air Defense Artillery (ADA) to FA.

5.  Based upon his branch transfer, the applicant was extended Federal Recognition in the rank of 1LT on 3 May 2006 and he assumed command on 11 May 2006.

6.  On 12 July 2006, TXARNG published Orders 193-1098, which promoted the applicant to captain, effective 12 July 2006.

7.  On 29 December 2006, NGB Special Orders Number 328 AR, extended Federal recognition to the applicant for the purpose of promotion to the rank of CPT, effective 21 December 2006.

8.  In connection with the processing of this case, on 19 June 2009, an advisory opinion was obtained from the NGB Chief, Personnel Division.  The advisory official indicated the NGB recommended disapproval of the applicant's request to have his CPT DOR changed from 21 December 2006 to 12 July 2006 because his promotion was based on a position vacancy.  This recommendation was based on the promotion regulatory guidance contained in the Reserve Officer Personnel Management Act (ROPMA) for position vacancy promotions which provides that the effective date of an 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.  

9.  The advisory official further stated that the promotion regulatory guidance states that the promotion effective date is not the date of appointment to the position or the date of the State FREB.  Scroll lists take approximately 90 to 120 days to be approved by the Secretary of Defense due to processing and staffing requirements.

10.  The advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 21 July 2009, the applicant submitted a letter responding to the NGB advisory opinion.  In it, he stated that the date between his effective date of promotion to CPT of 13 July 2006 to his CPT DOR of 21 December 2006 is 165 days which exceeds the average 90-120 days by 45 days.  He further requests consideration be given the final disposition of his case based on this oversight.

11.  National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions) 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 should be changed to 12 July 2006 and that 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.  By law and regulation, the effective date of vacancy promotions in the ARNG is the date Federal recognition is granted by the Chief, NGB.  Further, scroll lists take approximately 90 to 120 days to be approved by the Secretary of Defense due to processing and staffing requirements.

3.  The evidence of record confirms that although the applicant was assigned to a position authorized the higher grade and the FREB was completed on 12 July 2006, processing was not completed and the Chief, NGB did not extend Federal recognition to the applicant in the grade of CPT until 21 December 2006.  

4.  Although the time between the FREB was completed and the date Federal recognition was granted by the Chief, NGB exceeded the 120 days it normally takes for scroll lists to be approved, the delay was not extraordinary and did not excessively exceed normal processing times.  Therefore, 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, who is granted the vacancy promotion authority by law and regulation.

5.  Absent the concurrence of the Chief, NGB or of 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.

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)                                         AR20090006794



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ABCMR Record of Proceedings (cont)                                         AR20090006794



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