IN THE CASE OF:	

		BOARD DATE:	  16 March 2010

		DOCKET NUMBER:  AR20090008824 


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 that his date of rank be corrected to reflect that he was promoted to the rank of major (MAJ) on 16 November 2006 instead 16 January 2008.

2.  The applicant states that he was selected by the Officer Centralized Personnel Management System (OCPMS) board for promotion to the rank of MAJ in November 2006 while deployed to Iraq.  He goes on to state that during the deployment he replaced two MAJ's and he was advised that he could not be moved into the position and promoted until he was released from active duty (REFRAD) plus 90 days.  He continues by stating that he returned from Iraq and was told by the Federal Recognition Board (FRB) that he had to re-tape for body fat standards.  This occurred several times over several months and all tapings showed that he was within standards.  He further states that the FRB then told him he would have to branch-transfer due to his physical profile which would prevent him from being promoted as an infantry officer.  Inasmuch as he was branch qualified as a military police (MP) officer, he branch-transferred to MP branch and his promotion finally came through in January 2008.  He also states that he believes an injustice took place in his promotion because all of the officers who did not deploy and were selected on the same list were promoted within a few months of selection and he was penalized for being deployed.  Accordingly, he deserves to be promoted at the same time as the others who were selected by the same board and did not deploy.

3.  The applicant provides a copy of a National Guard Bureau (NGB) memorandum, dated 2 February 2009, regarding unit vacancy promotions of mobilized Army National Guard (ARNG) officers; a copy of a recommendation for promotion; dated 30 May 2007; a copy of his promotion orders to the rank of MAJ; a copy of his Federal recognition orders; a copy of his promotion memorandum; a copy of Federal recognition orders related to revocation of Federal recognition to the rank of first lieutenant (1LT); an amendment of mobilization orders; copies of electronic mail messages pertaining to his promotion; a copy of a transfer for mobilization memorandum from the Illinois ARNG and orders for mobilization; copies of his promotion orders to 1LT and captain (CPT); two DA Forms 1059 (Service School Academic Evaluation Report); a copy of his oaths of office as a second lieutenant (2LT); and a copy of his Honorable Discharge Certificate from the ARNG as a staff sergeant on 21 August 1992.

CONSIDERATION OF EVIDENCE:

1.  The applicant was honorably discharged in the pay grade of E-6 from the Illinois Army National Guard (ILARNG) on 21 August 1992 to accept a commission as an officer.

2.  On 22 August 1992, he was granted temporary Federal recognition as an infantry 2LT in the ILARNG.  He continued to serve in the ILARNG and was promoted to the rank of CPT on 4 October 2002.

3.  He was ordered to active duty on 7 May 2006 and deployed to Kuwait/Iraq from 14 May 2006 to 6 May 2007.  On 1 June 2007, he was honorably REFRAD due to completion of required service and was returned to his ILARNG unit.

4.  On 16 January 2008, he was granted Federal recognition to the rank of MAJ.

5.  On 2 March 2010, the applicant was issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

6.  In the processing of this case a staff advisory opinion was obtained from the NGB which received input from the ILARNG that indicates that the applicant was selected by the OCPMS, which is the State board that identifies Soldiers for promotion based on current and projected vacancies.  The recommendation from the Soldier’s command was received on 30 May 2007 and the applicant was REFRAD on 1 June 2007.  However, inconsistencies with his Army Physical Fitness Test, height, weight, and the Soldier’s physical profile prolonged staffing the promotion request, which resulted in the Soldier not being considered until September 2007.  If the inconsistencies had not been a factor, the earliest he could have been considered by a board was 13 June 2007.  The FRB found him 
physically fit on 13 September 2007 and he was promoted effective 16 January 2008.  Officials at the NGB recommend disapproval of the applicant’s request.  The advisory opinion was forwarded to the applicant for comment and to date no response has been received by the staff of the Board.

7.  National Guard Regulation 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions) provides, in pertinent part, that a mobilized officer recommended for a unit vacancy promotion will be processed in accordance with the current FRB procedures outlined in paragraph 8-11.  The packet must include a memorandum endorsed by The Adjutant General (TAG) formatted in the same manner as TAG memorandum submitted for selected officers of a Department of the Army Mandatory Selection Board.  Promotion will become effective the date Federal recognition is granted.  Promotion to the rank of MAJ by a mandatory selection board will occur when an officer reaches 7 years of time in grade.

DISCUSSION AND CONCLUSIONS:

1.  While it is unfortunate that there were inconsistencies in the applicant’s records when his recommendation was received by the FRB which delayed the processing of his promotion recommendation, such administrative errors do not necessarily constitute an error or injustice on the part of the Department.

2.  The applicant also has a responsibility to ensure that his records are accurate and up to date for review by selection boards, and the evidence submitted by the applicant and the evidence of record do not provide specific explanations as to who or what was the cause of the inconsistencies noted by the FRB at the time.  Additionally, it was the responsibility of the FRB to ensure that any inconsistencies were resolved before processing his recommendation.  It appears the FRB acted responsibly in his case.

3.  Therefore, in the absence of evidence to show that his command and/or the NGB did not exercise due diligence in the processing of his recommendation for promotion, there appears to be no basis to grant his request.

4.  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 the requirement.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_____X___  ____X___  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.



      ____________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)                                         AR20090008824



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ABCMR Record of Proceedings (cont)                                         AR20090008824



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