IN THE CASE OF:	  

		BOARD DATE:	  20 October 2009

		DOCKET NUMBER:  AR20090010981 


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 promotion effective date to major be changed from 27 May 2008 to 2 October 2007 and that he receive all back pay and allowances.

2.  The applicant states, in effect, that he was Department of the Army (DA)-selected for major published on 3 July 2007, that he reached his 7-year maximum for time in grade for captain on 2 October 2007, and that he was on Title 10 orders from 21 June 2007 to 22 July 2008.  He indicates that he is eligible for promotion at the 7-year mark, that his date of rank is 2 October 2007, and that due to being DA-selected while serving in a Title 10 status, his effective date for pay should be 2 October 2007.  However, his pay was effective 27 May 2008.

3.  The applicant provides a memorandum, dated 3 July 2007; promotion orders; a memorandum, dated 27 May 2008; a DD Form 214 (Certificate of Release or Discharge from Active Duty); memoranda, dated 1 September 2004 and 30 January 2004; and an excerpt from Army Regulation 135-155 in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the Army National Guard, the applicant was appointed as a second lieutenant in the Army National Guard on 28 April 1994.  He was promoted to first lieutenant on 4 December 1996 and promoted to captain on 3 October 2000.  He was ordered to active duty in an Active Guard Reserve status on 21 June 2007 in support of Operation Enduring Freedom and Operation Iraqi Freedom.

2.  Departments of the Army and the Air Force, National Guard Bureau, Special Orders Number 133 AR, dated 27 May 2008, show the applicant was granted Federal recognition for promotion to major effective 27 May 2008.  His promotion eligibility date (PED) is 2 October 2007.

3.  On 21 July 2008, the applicant was released from active duty.

4.  In the processing of this case, a staff advisory opinion was obtained from the Personnel Division, National Guard Bureau.  That office recommends approval of the applicant’s request to change his promotion effective date from 27 May 2008 to 2 October 2007 and that he receive all back pay and allowances.  The recommendation is based on the Personnel Policy Guidance (PPG), chapter 13, and the National Guard Bureau memorandum dated 30 January 2004.  The opinion points out that the applicant was promoted to captain on 3 October 2000, that on 3 July 2007 he was selected for promotion to major at the maximum time in grade, and that he was activated in support of Operation Enduring Freedom on 21 June 2007 and released on 21 July 2008.  National Guard Bureau memorandum, dated 1 September 2004, states that Army National Guard officers recommended for promotion to the grades of captain through lieutenant colonel mobilized under the provisions of Title 10, U.S. Code, sections 12301(a), 12302, and 12304, and who are on the approved mandatory selection board list who reach their maximum time in grade (major = 7 years) will be promoted without regard to a position vacancy unless that officer has voluntarily delayed or declined promotion.  The applicant reached his maximum time in grade effective 3 October 2007.  

5.  The advisory opinion points out that in accordance with PPG, chapter 13, section 13-10(2)(b), Mobilized Officers and Officers on [Active Duty for Operational Support]:  "[in accordance with] Title 10, U.S. Code, sections 14304(b) and 14316(b) and 14316(d), all [Reserve Component] officers who have been recommended for promotion to the grades of captain through lieutenant colonel by a mandatory promotion board and who are on an approved promotion list (excluding [position vacancy board]) shall be promoted without regard to the existence of a vacancy or placement against a position of a higher grade on the date on which the officer completes the maximum years of service as specified in Title 10, U.S. Code, section 14304(a), unless the officer has voluntarily delayed or declined promotion [in accordance with] U.S. Code, section 14312(c)."

6.  A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  On 21 August 2009, he concurred with the opinion.

7.  Table 2-1 of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) states that the minimum time in grade as a captain for promotion to major is 4 years and the maximum time in grade is 7 years.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was promoted to captain on 3 October 2000 and on 3 July 2007 he was selected for promotion to major at the maximum time in grade.  He reached his maximum time in grade on 2 October 2007.  However, orders show he was promoted to major effective 27 May 2008 with a PED of 2 October 2007.  

2.  In accordance with the regulatory guidance and governing regulation, it would be equitable to correct the applicant’s military records to show his effective date of promotion to major is 2 October 2007 with a PED of 2 October 2007.  It would also be equitable to show he was granted Federal recognition for promotion to major effective 2 October 2007. 

BOARD VOTE:

____x____  ___x_____  ___x_____  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that the State Army National Guard records and the Department of the Army records of the individual concerned be corrected by amending National Guard Bureau Special Orders Number 133 AR, dated 27 May 2008, to show that he was promoted to major with a PED and effective date of 2 October 2007 and granted Federal Recognition effective 2 October 2007 in the grade of major.

2.  The Board also recommends that the applicant be paid all back pay and allowances due as a result of these corrections.



      ____________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)                                         AR20090010981





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ABCMR Record of Proceedings (cont)                                         AR20090010981



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