IN THE CASE OF:
BOARD DATE: 22 April 2010
DOCKET NUMBER: AR20090011713
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 his date of rank to captain (O-3) be changed from 20 August 2008 to 9 January 2008 or 24 April 2008.
2. The applicant states:
* he became promotable to captain on 9 January 2008
* 9 January 2008 was the agreed upon effective date of rank before multiple delays
* the date of his State promotion and Federal recognition is 24 April 2008
* his promotion was delayed 225 days from the date he mobilized into a captain's position
* he served in a captain's position for 8 months without time in grade and pay being counted
3. The applicant provides:
* two Memoranda for Record dated 23 January 2009
* Assumption of Command Memorandum dated 9 January 2008
* Recommendation for Promotion Memorandum dated 20 March 2008
* Orders 158-804 dated 6 June 2008 promoting him to captain
* Promotion Notification dated 22 August 2008
* National Guard Bureau (NGB) Special Orders Number 218 AR dated 22 August 2008
* Orders 166-013 dated 15 June 2005 promoting him to first lieutenant
* Promotion Notification dated 30 June 2005
* NGB Special Orders Number 197 AR dated 30 June 2005
* two Officer Evaluation Reports
* Copies of assignment orders
* Request for 314 day tour for Contingency Operation for Active Duty Operational Support (CO-ADOS) dated 22 November 2008
* Memorandum for Record dated 27 December 2007
* Volunteer/Waiver Statement
* Recommendation for Promotion dated 20 March 2008
* Officer Promotion Checklist
* Numerous electronic mail between him Army officials.
CONSIDERATION OF EVIDENCE:
1. With prior enlisted Army National Guard (ARNG) service, the applicant accepted an appointment as a Reserve commissioned officer in the rank and pay grade of second lieutenant (O-1) on 28 June 2003.
2. On 1 July 2003, he was released from the U.S. Army Reserve (USAR) Control Group to accept an appointment in the Michigan Army National Guard (MIARNG) in the grade of O-1. He took his Oaths of Office in the MIARNG on 1 July 2003.
3. He was promoted to first lieutenant (O-2) effective 28 June 2005.
4. On 15 January 2007, the applicant was approved for an interstate transfer to the North Carolina Army National Guard (NCARNG). He took his Oaths of Office on 9 March 2007 and was assigned to Company B, 1st Battalion, 252nd Combined Arms Battalion, Smithfield, North Carolina, as the executive officer on 12 March 2007.
5. Orders 092-850 were published on 1 April 2008 transferring him to a position vacancy at Joint Forces Headquarters, Raleigh, North Carolina, effective 1 April 2008.
6. A Federal Recognition Examining Board convened on 24 April 2008 to determine the applicant's qualifications for Federal recognition. The board found him qualified and recommended that he be promoted the rank of captain (O-3).
7. On 6 June 2008, Orders 158-804 were published promoting him to grade O-3, effective 24 April 2008. However, these orders were amended to show his promotion was effective 20 August 2008.
8. On 22 August 2008, NGB Special Orders Number 218 AR were published awarding the applicant Federal Recognition, effective 20 August 2008, in grade O-3.
9. On 22 August 2008, the applicant was notified that he was promoted to grade O-3, effective 20 August 2008.
10. In an advisory opinion, dated 22 June 2009, the Chief, Personnel Division, NGB, recommended disapproval of the applicant's request for the following reasons:
* his promotion was based on a position vacancy
* promotion effective dates on all position vacancy promotions is the date the Secretary of Defense approved and signed the promotion scroll list
* promotion is not based on the date of State Federal Recognition Board
* promotion is not based on the date of the State promotion orders
* in accordance with the Reserve Officer Personnel Management Act, effective date of promotion and date of rank for officers promoted under the position vacancy promotion system will be the date the Chief, NGB extends Federal recognition, based on the approved scroll list from the Secretary of Defense
* scroll lists take approximately 90 to 120 days to be approved
* he was assigned to a captain position on 1 April 2008
* he was recommended for promotion by a State Federal Recognition Examination Board on 24 April 2008
* orders were published on 6 June 2008 promoting him to captain effective 24 April 2008
* his Federal recognition packet arrived at NGB-ARP on 6 June 2008
* his name was placed on the scroll and submitted to the Office of the Deputy Chief of Staff (ODSC), G-1 for review and routing on 11 June 2008
* the promotion process took 75 days from the time the promotion packet arrived at NGB-ARP
* the promotion process took 141 days from his assignment to the captain position
* the delay between 1 April 2008 and 6 June 2008 was not excessive
* the rest of the process occurred in a timely manner
11. The applicant submitted a rebuttal to the advisory opinion on 20 August 2009, in which he, in effect, reiterates his previous contentions regarding the length of time it took for his promotion packet to be processed. He further
contends that the advisory opinion failed to address his timeliness issues and it does not address the issue of the promise that was made to him and his chain of command regarding the effective date of his promotion to captain.
12. National Guard Regulation 600-100, chapter 8 establishes the policies and procedures for promotion of officers in the ARNG. Essentially, officers serving in a unit where a position vacancy exits may be promoted by the State to fill the position vacancy. However, until Federal Recognition in the new rank is extended by the NGB, the individual cannot be promoted and paid for the higher rank.
DISCUSSION AND CONCLUSIONS:
1. It is unfortunate that the processing of the promotion packet was administratively delayed due to what appears to have been through no fault of the applicant.
2. However, the promotion packet did not arrive at NGB-ARP until 6 June 2008 and on 11 June 2008 his name was placed on the scroll list for approval by the Secretary of Defense.
3. He was promoted to captain effective 20 August 2008. Based on the available information this is the earliest date he could have been promoted (the date he was granted Federal recognition).
4. The applicant's contentions regarding an agreed upon promotion date and the length of time it took to process his promotion packet has been considered. However, unless he can provide evidence to show that the Secretary of Defense approved the scroll list on which his name appeared earlier than 20 August 2008, no relief can be granted.
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) AR20090011713
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