BOARD DATE:	  4 August 2009

		DOCKET NUMBER:  AR20090007686 


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 date of rank (DOR) as captain (CPT) from 11 June 2006 to 14 February 2005.

2.  The applicant states that he was selected by a Department of the Army (DA) Standby Advisory Board (SSB) under the 2004 criteria and was selected for promotion to CPT.  The DOR for this promotion should have been 14 February 2005; however, he was told that since he was a member of the Army National Guard (ARNG) at the time of the promotion, only this Board can change his DOR.

3.  The applicant provides a copy of his promotion memorandum, issued by the U.S. Army Human Resources Command (HRC), St. Louis, MO, on 23 March 2007; a copy of Orders B-04-802151, issued by HRC-St. Louis, MO, on 2 April 2008; and an email exchange, dated 4 May 2009, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service in the Regular Army and the ARNG, the applicant's records show he was appointed as a second lieutenant in the Tennessee Army National Guard (TNARNG) and executed an oath of office on 6 August 1995.  He completed the Transportation Corps Officer Basic Course on 21 October 1996 and was subsequently promoted to first lieutenant (1LT) on 26 August 1997.  


2.  On 26 March 2002, by memorandum, the U.S. Total Army Personnel Command (now known as HRC), St. Louis, MO, notified the applicant that his records were considered by the 2001 Reserve Components Selection Board (RCSB) for promotion to CPT but he was not selected.

3.  On 17 April 2003, by memorandum, HRC-St. Louis, MO, notified the applicant that the 2002 RCSB examined the performance portion of his official military personnel file but he had not been selected for promotion to CPT and that as a result of this second non-selection, his removal date was established as not later than 1 October 2003.  His records show that separation orders were issued but were later revoked.  

4.  The applicant was considered for promotion to captain two additional times but he was notified, by memorandums, dated 8 April 2004 and 1 March 2005, that the promotion selection boards examined the performance portion of his official military personnel file but he had not been selected for promotion to CPT.

5.  On 10 June 2006, the applicant was discharged from the ARNG in the rank of 1LT as a result of the two time pass over and transferred to the Retired Reserve.

5.  On 23 March 2007, by memorandum, HRC-St. Louis, MO, notified the applicant that his records were considered by a DA SSB that convened on 25 September 2005 and considered him under the 2004 criteria and that he was recommended for promotion to CPT.  The memorandum further informed him that upon final processing, a promotion order would be forwarded to him with a DOR as 14 February 2005.

6.  On 2 April 2008, HRC-St. Louis, MO, published Orders B-04-802151, announcing the applicant's promotion to CPT with 11 June 2006 as his effective date of promotion and DOR.

7.  An advisory opinion was obtained on 5 June 2009 in the processing of this case.  The Chief, Personnel Division, National Guard Bureau recommended disapproval of the applicant's request for correction of his DOR.  After providing a historical background of the applicant's military service and his recent application to the Army Board for Correction of Military Records, the Chief, Personnel Division, stated that the applicant was separated from the ARNG and transferred to the USAR effective 10 June 2006.  The HRC-St. Louis memorandum, dated 23 March 2007, stated that the applicant was considered by a DA SSB and was selected for promotion to CPT with a DOR of 14 February 2005.  However, the applicant was transferred to the USAR on 10 June 2006 which indicates that the ARNG was his promotion authority until 10 June 2006.  The applicable National Guard Regulation (NGR) states that a promotion will be accomplished only when the officer is assigned to an appropriate MTOE/TDA (Modified Table of Organization and Equipment/Table of Distribution and Allowances) vacancy in the higher grade in the unit and that the officer must remain in the same vacancy in which he or she has been recommended for promotion until Federal Recognition "will nullify the promotion."  The applicant was not in a CPT slot at any time during 2005.  Since he was transferred to the USAR on 10 June 2006, the earliest date he could get promoted to CPT is 11 June 2006.

8.  On 23 July 2009, the applicant submitted a rebuttal to the advisory opinion in which he stated that he was assigned to a CPT position in 2006.  He also attached a copy of his Officer Record Brief.

9.  NGR 600-100 (Commissioned Officers –Federal Recognition and Related Personnel Actions) prescribes policies and procedures governing the appointment, assignment, temporary Federal Recognition, Federal Recognition, reassignment, transfer between States, branch transfers, utilization, attachments, and separation of commissioned officers of the ARNG.  It states, in pertinent part, that commissioned officers of the ARNG are appointed by the several States.  These appointments may be federally recognized by the Chief, National Guard Bureau, under such regulations as the Secretary of the Army may prescribe and under the provisions of this regulation.  Officers who are federally recognized in a particular grade and branch shall be tendered an appointment in the same grade as Reserve commissioned officers of the Army with assignment to the ARNG, as provided by law.   

10.  Chapter 8 of NGR 600-100 provides for promotion of officers.  It states, in pertinent part, that the promotion of officers in the ARNG is a function of the State, and as in original appointments, a commissioned officer promoted by State authorities has a State status in the higher grade under which to function.  However, to be extended Federal Recognition in the higher grade, the officer must have satisfied the promotion requirements.   Paragraph 8-6 of this regulation states that except as provided in this chapter, promotion will be accomplished only when the officer is assigned to an appropriate MTOE or TDA vacancy in the higher grade.  The officer must remain in the same vacancy in which he/she had been recommended for promotion until Federal Recognition orders are published.  Reassignment to any other vacancy prior to extension of Federal Recognition would nullify the promotion.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DOR should be changed from 11 June 2006 to 14 February 2005.

2.  The evidence of record shows that the applicant was considered by a DA SSB that selected him for promotion to CPT with a DOR as 14 February 2005 and was so accordingly notified on 23 March 2007.  However, it appears that in 2005 and part of 2006, while still a member of the TNARNG, he was not assigned to an appropriate MTOE or TDA vacancy in the higher grade.  He provided his Officer Record Brief; however, that document does not indicate the grade of the position he was assigned to.  Accordingly, he was not extended Federal recognition.  Since he was transferred from the ARNG to the USAR on 10 June 2006, the earliest date the USAR could promote him to CPT is 11 June 2006, which is correctly shown on his record.

3.  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 evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant him 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)                                         AR20090007686



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ABCMR Record of Proceedings (cont)                                         AR20090007686



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