BOARD DATE:	  February 23, 2010

		DOCKET NUMBER:  AR20090010259 


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 a special selection board (SSB) consider him for promotion to the rank of captain under the 2009 promotion selection board criteria.  If selected he requests a date of rank of 24 February 2009 and if appropriate that the Pennsylvania Army National Guard (PAARNG) be directed to change his separation (transfer) date to a date prior to 4 November 2008.

2.  The applicant states the PAARNG did not transfer him to the U.S. Army Reserve in a timely manner and therefore he could not be considered for promotion by the captain promotion board conducted from 4-14 November 2008.  He states the delay in his transfer resulted due to a lengthy Inspector General investigation. 

3.  The applicant provides a letter from Department of the Army (DA) Promotions; his letter to the U. S. Army Human Resources Command – St. Louis (HRC-STL) requesting an SSB; a copy of his packet to HRC-STL requesting relief containing numerous documents listed under Tab A (Request for separation, initial separation order); Tab B (Request for amended order due to error by the PAARNG; amended separation order); and Tab C (E-mail and formal Inspector General investigation).  The applicant provided PAARNG Orders 352-1001, dated 18 December 2009, amending his transfer date to the U.S. Army Reserve (USAR) along with his response to the advisory opinion that he submitted to this Board. 


CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the PAARNG on 22 January 2001.  He was appointed as a second lieutenant in the Chemical Corps (CM) on 3 April 2004.

2.  National Guard Bureau (NGB) Special Orders Number 88 AR, dated 4 April 2006, show the applicant was promoted to first lieutenant with an effective date of 3 April 2006.

3.  Evidence indicates that on 28 August 2008 the applicant requested a conditional release from the PAARNG to facilitate acceptance of a captain position with the USAR.

4.  In the processing of this case, on 19 November 2009, an advisory opinion was obtained from the HRC-STL), Chief, Special Actions Branch, DA Promotions.  The Chief, Promotions stated that the applicant was promoted to first lieutenant as a National Guard officer on 3 April 2006.  At that time, the time in grade to captain was 5 years, making the applicant's promotion eligibility date 2 April 2011.  He indicated the Fiscal Year (FY) 2009 Captain Army Promotion List Department of the Army Reserve Component Selection Board convened on 4 November 2008.  He states that the zone of consideration was for first lieutenants with a date of rank of 1 September 2005 through 31 August 2006.   He states that the zone of consideration for Army National Guard officers was    31 August 2004 and earlier.  The Chief, Promotions also states that since the applicant's date of rank as a National Guard officer was 3 April 2006, he was not in the zone of consideration.  He continues by stating that if the National Guard had transferred the applicant to a Reserve status prior to the convening date, instead of 25 November 2008, he could have been eligible for the Army Reserve board.

5.  The HRC-STL advisory official states that on 21 May 2009 his office denied the applicant's request for an SSB.  Further coordination with the National Guard needs to be addressed to determine the delay and reason the applicant's transfer was not completed prior to the convening date of the selection board.

6.  The advisory opinion was forwarded to the applicant on 30 November 2009 for information and to allow him the opportunity to submit comments or a rebuttal.  The applicant concurred with the advisory opinion.  He indicates he took the advisory opinion to the PAARNG and therefore, he provided Orders 352-1001 placing him in the USAR effective 12 October 2008, which is before the convening date of the November 2008 board.
7.  The applicant indicates that since he complied with the requested course of action per the advisory opinion, he is requesting only that the Board direct the HRCSTL to conduct an SSB using the 4-14 November 2008 criteria.

8.  Since the applicant has already been granted relief for the portion of his request regarding the PAARNG amending his orders transferring him to the USAR, the amending of the orders will not be further discussed in this Record of Proceedings.    

9.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 3-19d(2), states that SSBs, convened under the Reserve Officer Personnel Management Act (ROPMA) will reconsider commissioned officers who were erroneously not considered on or after 1 October 1996 when referral is requested by the ABCMR.

10.  Army Regulation 135-155, paragraph 4-21, states that unit officers selected by a mandatory board will have a promotion date and effective date no earlier than the date the board is approved or the date of Senate confirmation (if required), provided they are assigned to a position in the higher grade.  When the board approval or, if required, Senate confirmation is before assignment to the position in the higher grade, the effective date and the date of promotion will be the date of assignment to the higher graded position.

11.  Army Regulation 135-155, Table 2-1, shows that for promotion to captain, the minimum time in lower grade is 2 years and the maximum time is 5 years.

DISCUSSION AND CONCLUSIONS:

1.   Based on the HRC-STL advisory opinion, as an Army National Guard officer the applicant was not in the zone for consideration for promotion to captain by the FY 2009 board and the applicant's request to HRC-STL for an SSB was denied.

2.  However, in coordination with the PAARNG the applicant was subsequently able to acquire Orders 352-1001 changing the effective date of his transfer from the PAARNG to the U.S. Army Reserve from 25 November 2008 to 12 October 2008.  Therefore, it would be appropriate, if the applicant was at the time of the Captain FY 2009 Promotion Board otherwise eligible for promotion consideration, to send his records to an SSB for promotion consideration to captain under the FY 2009 criteria.

3.  The applicant would be entitled to any difference in pay that would result if he is selected for promotion by the FY 2009 Board.
4.  In view of the foregoing, it would be appropriate to correct the applicant's records corrected as shown below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x____  ___x_____  ___x__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by placing his record before a duly constituted SSB for promotion consideration to captain under the criteria followed by the FY 2009 criteria for the Captain Promotion Selection Board.

2.  If he is selected for promotion by the SSB and if otherwise eligible, his record should be corrected by establishing his captain promotion effective date and date of rank as if he had been originally selected under the earlier criteria identified by the SSB and by providing him all back pay and allowances due as a result.  If he is not selected for promotion by the SSB, he should be so notified by the appropriate HRC-STL promotion officials.

3.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to a promotion effective date and a date of rank to captain of 24 February 2009.




      _______ _   _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)                                         AR20090010259



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ABCMR Record of Proceedings (cont)                                         AR20090010259



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