IN THE CASE OF:	

		BOARD DATE:	  11 March 2010

		DOCKET NUMBER:  AR20090009764 


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 the Federal recognition date and effective date/date of rank (DOR) of his promotion to colonel (COL) be changed to 31 March 2004.

2.  The applicant states, in effect, that the effective date of his promotion to COL and his COL DOR should be changed to 31 March 2004, the date of Senate confirmation because he assigned to a valid COL position on that date.

3.  The applicant provides, in support of his application, a copy of SD Form 37 (Office of the Secretary of Defense (OSD) Request for Nomination and Position Description of Military Personnel), dated 27 April 2004; OSD Military Staffing Plan, dated 6 July 2005; Senate Nomination List (PN1166-108), dated
21 November 2003; U.S. Army Human Resources Command (USAHRC), St. Louis, MO, memorandum, subject:  Eligibility for Promotion [to COL] as a Reserve Commissioned Officer not on Active Duty, dated 4 December 2003; USAHRC, St. Louis, Orders B-09-506233, dated 26 September 2006; and DA Form 67-9 (Officer Evaluation Report).

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that after having had prior enlisted service in the United States Army Reserve (USAR), he was initially commissioned a Reserve second lieutenant and entered the Army National Guard (ARNG) on 2 June 1986.

2.  The applicant's record shows he was promoted to first lieutenant on 11 May 1987.

3.  On 30 August 1989, the applicant was promoted to captain and entered active duty in the Active Guard Reserve (AGR) program.

4.  On 22 March 1994, the applicant was promoted to major and on 2 August 1999, he was promoted to lieutenant colonel (LTC).

5.  On December 2003, USAHRC, St. Louis, published a memorandum, Subject: Eligibility for Promotion as a Reserve Commissioned Officer not on Active Duty, notifying the ARNG that the applicant had been selected for promotion by a Reserve Component Selection Board (RCSB) that adjourned on 1 August 2003.  It further indicated that the effective date of the applicant's promotion would be either of the following dates:  the date listed after A on the memorandum, which was 1 August 2004; the date Federal recognition is extended in the higher grade; or the date following the date Federal recognition is terminated in current Reserve grade.  It further indicated that if the officer accepted promotion and Federal recognition was not extended in the next higher grade, the officer would be transferred in their current grade to the USAR on the day following the date of termination of Federal recognition.

6.  On 14 May 2004, the applicant completed a memorandum requesting a voluntary delay of his promotion to COL because he was on active duty in the AGR program.  He indicated that he understood if he was released or removed from AGR status and had not been previously promoted, he had to be promoted in a position vacancy, or transferred to the USAR to accept promotion, or decline promotion at which time he would be considered either a non-selection for promotion or failure of selection.  He further acknowledged that one of these options had to be taken before the convening date of the next Department of the Army (DA) mandatory board. 

7.  On 16 September 2005, the applicant was honorably discharged from the ARNG, in the rank of LTC, and transferred to the USAR Control Group (Reinforcement), and on 17 September 2005, he was promoted to COL.

8.  In connection with the processing of this case, on 10 November 2009, an advisory opinion was obtained from the Chief, Personnel Division, National Guard Bureau (NGB).  The advisory official recommended disapproval of the applicant's request for a change to the effective date of his promotion to and DOR for COL.  The official states that this recommendation is further based on information contained in an electronic mail (e-mail) message from the Nebraska 
ARNG (NEARNG), dated 27 October 2009, which indicates the applicant was assigned to a temporary duty assigned position in the State Area Command (STARC) Joint Forces Headquarters (JFHQ) and that the NEARNG cannot promote officers against temporary authorizations as they are not Federally recognized positions and are not authorized.  It further confirms the applicant was never assigned to an authorized COL position in the NEARNG.

9.  The NGB advisory opinion further indicates that State officials indicated that had the ARNG wanted to promote the applicant and had they provided an authorization with an AGR control grade at the time of his assignment while in an AGR status, the NEARNG could have submitted him for promotion effective anytime after 1 August 2003 based upon unit vacancy promotion (position authorized by NGB) and being a DA RCSB selectee.  The NGB official states he does not believe one of these positions was available, hence the release from the AGR program, separation from the ARNG, and assignment to the Individual Ready Reserve (IRR) for promotion.  This official further states that the authorization document provided by the applicant shows he was assigned to a COL position with the Office of Secretary of Defense as an AGR and all AGR officer positions are control grade promotions.  The NGB conducts career field review (CFR) boards every year to determine the best qualified officers for the next higher grade and according to the Fiscal Year 2005 CFR board, the applicant was number 73 of 250 officers reviewed by the board.

10.  The NGB advisory opinion confirms that in accordance with the applicable regulation, the effective date of promotion for an ARNG officer who is promoted in the State is the date NGB extends Federal recognition unless otherwise provided by law,  The governing regulation further states promotion will be accomplished only when the officer is assigned to an appropriate MTOE or TDA vacancy and that an AGR controlled grade authorization must be available prior to promotion of an AGR officer to any grade above captain.

11.  A copy of the NGB advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 14 December 2009, the applicant responded and stated that he non-concurred with the NGB's recommendation to disapprove his request to adjust his Federal recognition and the effective date and DOR of his promotion to COL. He stated that it is unfair and unjust that there are so many inconsistencies in applying the procedures, laws, and regulations within NGB.  He further cites two previous ABCMR decisions that granted relief to officers in the exact same situation as his and the only difference is that his situation occurred a year earlier.

12.  National Guard Regulation 600-100 (Commissioned Officers-Federal Recognition and Related Personnel Actions) provides procedures for processing applications for Federal recognition.  Chapter 8 provides guidance on promotion for other than general officers and states, in pertinent part, that the promotion of officers in the ARNG is a function of the State.  It further states 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.

13.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the ARNG and of commissioned and warrant officers (WO) of the USAR.  

14.  Chapter 4 of the same regulation contains guidance on processing selection board recommendations and Section III provides guidance on dates of promotion.  It states, in pertinent part, that commissioned officers serving on active duty in an AGR status may be promoted to or extended Federal recognition in a higher grade provided the duty assignment/attachment of the officer requires a higher grade than that currently held by the officer.

15.  The same regulation stipulates that AGR officers who have been selected for promotion and are not assigned/attached to a position calling for a higher grade will receive a delay of promotion without requesting such action.  AGR officers will remain on the promotion list and serve on active duty in the AGR program until they are (1) Removed from the promotion list; (2) Promoted to the higher grade following assignment/attachment to an AGR position calling for the higher grade; or (3) Promoted to the higher grade, if eligible, following release from active duty.

16.  Paragraph 4-21 of the same regulation provides guidance on effective dates of promotion and states, in pertinent part, that AGR officers selected by a mandatory board will be promoted provided they are assigned/attached to a position in the higher grade.  An AGR officer who is selected for promotion by a mandatory promotion board, but who is not assigned/attached to a position in the higher grade will be promoted on the date of assignment/attachment to a higher graded position or the day after release from AGR status. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his promotion and Federal recognition as a COL should be adjusted to 31 March 2004 due to inconsistencies in the application of policies, laws, and regulations by the NGB was carefully considered.  However, there is insufficient evidence to support this claim.

2.  By law and regulation, promotion of ARNG officers is a function of the State and the effective date of those officers promoted in the State will be the date the Chief, NGB extends Federal recognition.  ARNG officers selected for promotion by a DA board can only be promoted if they are assigned to a permanent position in the higher grade, or if they elect to transfer to the IRR to accept the promotion.

3.  Notwithstanding the previous ABCMR decisions cited by the applicant, the promotion of ARNG officers is the function of the State and the effective date of the promotion is the date the Chief, NGB extends Federal recognition in the higher grade.  In this case, the NGB advisory opinion verifies that NGB and State officials confirm a permanent COL position was not available to the applicant when he was selected for promotion.  The evidence of record shows the applicant was placed under a voluntary delay of promotion while he remained on active duty in the AGR program and that he was immediately promoted once he was released from the AGR and ARNG and transferred to the USAR in accordance with the applicable regulation.  As a result, there is an insufficient evidentiary basis to support granting the requested relief.  

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 this 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)                                         AR20090009764



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ABCMR Record of Proceedings (cont)                                         AR20090009764



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