IN THE CASE OF:	  

		BOARD DATE:	      30 JUNE 2009

		DOCKET NUMBER:  AR20090008207 


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, adjustment of the date of rank (DOR) and effective date of his promotion to lieutenant colonel (LTC)/pay grade O-5 from
23 March 2009 to 15 January 2009.

2.  The applicant states, in effect, he has been on orders under Title 10, U.S. Code, on Contingency Operation for Active Duty Operational Support
(CO-ADOS) since 9 July 2008.  He also states he is assigned to Headquarters, Department of the Army (HQDA), Office of the Deputy Chief of Staff (DCS)
G-3/5/7 (DAMO-ODO), The Pentagon, Washington, DC, in a LTC position (paragraph/line 011H/005).  He further states he was in this position when the HQDA Reserve Components (RC)/Army Promotion List (APL), Fiscal Year 2008 (FY08), LTC, RC/APL Selection Board Results were released on
15 January 2009.  He adds, after viewing the HQDA RC/APL FY08 LTC RC/APL Selection Board Results, his Army National Guard (ARNG) unit processed his internal move on the Unit Manning Report (UMR) to a LTC position (paragraph/line 002/02).  The applicant concludes that, despite these facts, Headquarters (HQ), National Guard Bureau (NGB), did not grant Federal recognition of his promotion until 23 March 2009.

3.  The applicant provides, in support of his application, copies of HQ, U.S. Total Army Personnel Command, Alexandria, VA, Order Number 072-022, dated
13 March 2001; DD Form 214 (Certificate of Release or Discharge from Active Duty) with an effective date of 28 February 2005; Joint Force HQ, District of 
Columbia Army National Guard (DCARNG), Washington, DC, Orders 208-032, 
dated 27 July 2005; HQ, NGB, Washington, DC, Special Orders Number 223 AR, dated 2 August 2005; Joint Force HQ, DCARNG, Washington, DC, memorandum, dated 1 July 2008, subject:  TAG [The Adjutant General] Release for MAJ (Major) [Applicant’s Name]; HQ, U.S. Army Human Resources Command (USAHRC), St. Louis, MO, Orders A-07-812564, dated 3 July 2008; Headquarters and Headquarters Detachment (HHD), DCARNG Area Mobilization Command, UMR, dated 30 December 2008; HQ, USAHRC, St. Louis, MO, Orders A-12-826987, dated 31 December 2008; two Mobilization Augmentation Command (MAC) - S1, UMR, dated 16 January and 23 January 2009; RC/APL FY08 LTC, RC/APL, Selection Board Results, undated (pages 1 and 11); HQ, Office of the DCS G-3/5/7, Washington, DC, memorandum, dated 6 February 2009, subject:  Request for 126-day CO-ADOS in Support of OEF [Operation Enduring Freedom] on MAJ [Applicant’s Name and Social Security Number] ARNG; Joint Force HQ, DCARNG, Washington, DC, Orders 055-141, dated
24 February 2009; HQ, USA HRC, St. Louis, MO, Orders A-02-906148, dated
25 February 2009; Joint Force HQ, DCARNG, Washington, DC, Orders 065-077, dated 26 February 2009; HQ, NGB, Arlington, VA, memorandum, dated
23 March 2009, subject:  Promotion as a Reserve Commissioned Officer of the Army; and HQ, NGB, Washington, DC, Special Orders Number 65 AR, dated
23 March 2009. 

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed a Reserve commissioned officer in the rank/grade of second lieutenant/O-1 and entered active duty on 31 May 1990.

2.  In support of his application, the applicant provides the following documents.

   a.  HQ, U.S. Total Army Personnel Command, Alexandria, VA, Order Number 072-022, dated 13 March 2001, that shows, in pertinent part, the applicant was promoted to the rank of MAJ, effective and with a DOR of 1 April 2001.
   
   b.  DD Form 214 that shows the applicant entered active duty this period on 31 May 1990; was honorably discharged on 28 February 2005, under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 3-5, based on miscellaneous/general reasons; and transferred to HHD DCARNG Mobilization Command.  At the time he had completed 14 years and
9 months of net active service.

   c.  Joint Force HQ, DCARNG, Washington, DC, Orders 208-032, dated
27 July 2005, that show the applicant was assigned in the grade of MAJ to the MAC, Joint Force HQ, Washington, DC, with duty at the NGB as a Crisis Action Team (CAT) Operations Officer in Area of Concentration (AOC) 01A00, paragraph/line 002/03, effective 1 March 2005.
   
   d.  HQ, NGB, Washington, DC, Special Orders Number 223 AR, dated
2 August 2005, that show, in pertinent part, the NGB extended Federal recognition in the ARNG of the applicant’s appointment, effective 1 March 2005. 

   e.  Joint Force HQ, DCARNG, Washington, DC, memorandum, dated 1 July 2008, subject:  TAG Release for MAJ [Applicant’s Name], that shows the Vice Chief of Staff, DCARNG, recommended the applicant serve a 365-day CO-ADOS tour to support the Director of Operations, Readiness, and Mobilization as a Staff Officer beginning on or about 1 July 2008.
   
   f.  HQ, USAHRC, St. Louis, MO, Orders A-07-812564, dated 3 July 2008, that show the applicant was ordered to active duty under the provisions of Title 10, U.S. Code, section 12301(D), in the rank of MAJ, for a 179-day CO-ADOS tour in support of OEF at the Office of the DCS, G-3/5/7, The Pentagon, Washington, DC, beginning 9 July 2008 and ending 3 January 2009.  The Additional Instructions section of these orders, in pertinent part, state "SM will be ordered to ADOS to perform Special Work in current Reserve grade."  The "For Army Use" section of these orders contain the entry "RES GR:  MAJ" (i.e., Reserve Grade:  Major).
   
   g.  HHD, DCARNG, Area Mobilization Command, UMR, dated 30 December 2008, in pertinent part, that shows, in pertinent part, the applicant was assigned to paragraph/line 002/03 (CAT Operations Officer), a MAJ position.
   
   h.  HQ, USAHRC, St. Louis, MO, Orders A-12-826987, dated 31 December 2008, that show the applicant was ordered to active duty under the provisions of Title 10, U.S. Code, section 12301(D), in the rank of MAJ, for a 60-day
CO-ADOS tour in support of OEF at the Office of the DCS, G-3/5/7, The Pentagon, Washington, DC, beginning 4 January 2009 and ending 4 March 2009.  The Additional Instructions section of these orders, in pertinent part, state "SM will be ordered to ADOS to perform Special Work in current Reserve grade."  The "For Army Use" section of these orders contain the entry "RES GR:  MAJ."
   
   i.  MAC - S1, UMR, dated 16 January 2009, that shows, in pertinent part, the applicant was assigned to paragraph/line 002/03 (CAT Operations Officer), a MAJ position, and also serving on CO-ADOS.

   j.  MAC - S1, UMR, dated 23 January 2009, that shows, in pertinent part, the applicant was assigned to paragraph/line 002/02 (CAT Operations Officer), an LTC position, and serving on CO-ADOS.
   k.  RC/APL FY08 LTC, RC/APL, Selection Board Results, undated (pages
1 and 11), that show, in pertinent part, the applicant’s name appears on page 11.
   
   l.  HQ, Office of the DCS G-3/5/7, Washington, DC, memorandum, dated
6 February 2009, subject:  Request for 126-day CO-ADOS in Support of OEF on MAJ [Applicant’s Name and Social Security Number], ARNG, that shows the Division Chief, Contingency Operations Division, Office of the DCS G-3/5/7, requested approval of a 126-day CO-ADOS tour on the applicant to support the Director of Operations, Readiness, and Mobilization as an Operations Action Officer against mobilization Table of Distribution and Allowances (TDA), paragraph 011H, line 005, with a start date of 5 March 2009.
   
   m.  Joint Force HQ, DCARNG, Washington, DC, Orders 055-141, dated
24 February 2009, that show the applicant was assigned to HHD, Area Mobilization Command, DCARNG, Washington, DC, as a CAT Operations Officer, AOC 01A00, paragraph/line 002/02, effective 14 January 2009.

   n.  HQ, USAHRC, St. Louis, MO, Orders A-02-906148, dated 25 February 2009, that show the applicant was ordered to active duty under the provisions of Title 10, U.S. Code, section 12301(D), in the rank of MAJ, for a 126-day
CO-ADOS tour in support of OEF at the Office of the DCS, G-3/5/7, The Pentagon, Washington, DC, beginning 5 March 2009 and ending 8 July 2009.  The Additional Instructions section of these orders, in pertinent part, state "SM will be ordered to ADOS to perform Special Work in current Reserve grade."  The "For Army Use" section of these orders contain the entry "RES GR:  MAJ".

   o.  Joint Force HQ, DCARNG, Washington, DC, Orders 065-077, dated
26 February 2009, that show the applicant was promoted to the grade of LTC,
effective and with a DOR of 6 March 2009.  These orders also show his duty assignment was as a CAT Operations Officer, AOC 01A00, paragraph/line 002/02.  The Additional Instructions of these orders, in pertinent part, state "Officer will not be paid or wear insignia of higher grade until Federal recognition is confirmed."
   
   p.  HQ, NGB, Arlington, VA, memorandum, dated 23 March 2009, subject:  Promotion as a Reserve Commissioned Officer of the Army, that shows, in pertinent part, the applicant was promoted to the rank of LTC, effective and with a DOR of 23 March 2009.
   
   q.  HQ, NGB, Washington, DC, Special Orders Number 65 AR, dated
23 March 2009, that show, in pertinent part, the NGB extended Federal recognition in the ARNG of the applicant’s promotion to LTC, effective 23 March 2009.
3.  In connection with the processing of this case, on 7 May 2009, an advisory opinion was obtained from the Chief, Personnel Division, NGB, Arlington, VA.  The advisory official recommends approval of the applicant’s request for adjustment of his DOR and promotion effective date to LTC from 23 March 2009 to 15 January 2009, with entitlement to all back pay and allowances as a result of the adjustment.  

	a.  The advisory official confirmed that the applicant was reassigned from CAT Operations Officer (01A00), paragraph/line 002/03 (a MAJ position) into CAT Operations Officer (01A00), paragraph 002/02 (an LTC position), effective
14 January 2009, which was prior to release of the RC/APL FY08 LTC, RC/APL Selection Board Results.

   b.  The advisory official also confirmed that the applicant’s promotion packet was at the State from 14 January 2009 until 18 March 2009, and accepted by the Federal Recognition Section, Personnel Division, NGB, on 20 March 2009.

	c.  The advisory official references National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions), chapter 8 (Promotion for Other Than General Officers), paragraph 8-1, which states, "[t]he promotion of officers in the ARNG is a function of the State.  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 requirements prescribed herein."  The advisory official also references paragraph 8-2a(2), which states, "[t]he date of rank as a reserve of the Army for an ARNG traditional (M-Day) commissioned officer, who is promoted as a result of selection by a mandatory selection board, is the date the Chief, NGB, extends Federal recognition."

4.  On 13 May 2009, the applicant was provided a copy of the advisory opinion for information in order to allow him the opportunity to submit comments of a rebuttal.  On 1 June 2009, the applicant replied by agreeing with the recommendation of the advisory opinion.

5.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy for selecting and promoting commissioned officers of both the Army National Guard of the United States (ARNGUS) and the U.S. Army Reserve (USAR), and warrant officers of the USAR.  It also covers promotion eligibility and qualification requirements, board schedules and procedures, and procedures on processing selection board recommendations.  The regulation, in pertinent part, provides that mandatory 
selection boards will be convened each year to consider USAR and ARNG officers in an active status for promotion to captain through colonel.  Paragraph 4-21 (Effective dates) states, in pertinent part, the effective date of promotion may not precede the date of the promotion memorandum.  An officer is promoted after selection if all qualifications for promotion are met.  In no case will the date of rank or effective date of promotion be earlier than the date the board is approved or, if required, the date of Senate confirmation. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his DOR and effective date for promotion to LTC should be corrected (i.e., from 23 March 2009 to 15 January 2009) because he was assigned to an LTC position on 14 January 2009; however, the NGB did not grant Federal recognition of his promotion until
23 March 2009.

2.  The evidence of record shows that the applicant was ordered to active duty on 9 July 2008 on CO-ADOS to perform Special Work in his Reserve rank of MAJ.  The evidence of record also shows that the applicant has remained on
CO-ADOS since then with a projected end date of 8 July 2009.

   a.  Records show the applicant’s DCARNG command verified that the applicant was assigned to a higher graded (i.e., LTC) authorized position effective 14 January 2009.  Records also show the applicant was considered and selected for promotion by the RC/APL FY08 LTC RC/APL that was released on 15 January 2009.

   b.  Records show the NGB announced the extension of Federal recognition of the applicant’s promotion to LTC in the ARNG, effective 23 March 2009.

	c.  In view of the foregoing, the Chief, Personnel Division, NGB, recommends approval of the applicant’s request for adjustment of his DOR and promotion effective date to LTC from 23 March 2009 to 15 January 2009.

3.  Based on the applicant’s assignment to an authorized LTC position on
14 January 2009, which was prior to release of the Selection Board Results on 15 January 2009, he was eligible for and qualified for promotion on the date the Selection Board Results were released.  The reason(s) for the delay in the applicant's promotion is/are not clear; however, there is no evidence the promotion was delayed due to the fault of the applicant.  Thus, it is concluded 
that the applicant’s promotion to LTC was improperly delayed, which, in turn, caused the effective date and DOR of his promotion to LTC to be delayed.  
Therefore, the applicant’s records should be corrected to show he was promoted to the rank/grade of LTC (O-5), effective and with a DOR of 15 January 2009, with entitlement to appropriate back pay and allowances.

4.  In view of the foregoing, the applicant’s State Army National Guard and Department of the Army records should be corrected as recommended below.

BOARD VOTE:

____X____  ___X____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all State Army National Guard and Department of the Army records of the individual concerned be corrected by: 

   a.  correcting the applicant's State ARNG orders by showing he was promoted to lieutenant colonel, effective 15 January 2009;

   b.  voiding the applicant's Federal Recognition and orders promoting him to lieutenant colonel, effective 23 March 2009, and declare them to be of no force or effect; and 
   
   c.  showing that the applicant was extended Federal Recognition in the ARNG and promoted to lieutenant colonel/pay grade O-5, with a promotion effective date and date of rank of 15 January 2009, with payment of all back pay and allowances due as a result of this adjustment.



      ________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)                                         AR20090008207



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ABCMR Record of Proceedings (cont)                                         AR20090008207



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