IN THE CASE OF:	  

		BOARD DATE:	  18 February 2010

		DOCKET NUMBER:  AR20090011735 


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 (DOR) for colonel be adjusted to 4 August 2006 or 1 September 2007.

2.  The applicant states that he was an Active Guard Reserve (AGR) officer when he was Department of the Army (DA) selected and assigned to an O-6 billet.  However, since he was about to mobilize, the State of Texas decided to give the O-6 resource to another officer.  In order to get promoted prior to the mobilization he was asked to resign his AGR position and he was placed on ADOS [active duty operational support] orders.  He was told that his DOR would be back dated to his DA selection date.  He was promoted to colonel on 30 April 2008 and mobilized to Iraq on 28 August 2008.  He is not asking for back pay.

3.  The applicant provides AGR orders; a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 March 2008; a DA selection memorandum; promotion orders; and active duty orders in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant entered active duty from the Army National Guard in an AGR status, Title 32, U.S. Code, on 1 March 2006 in the rank of lieutenant colonel. 

2.  A promotion board that adjourned on 4 August 2006 selected the applicant for promotion to colonel.  The U.S. Army Human Resources Command – St. Louis promotion memorandum noted his effective date of promotion would be either   23 July 2007, the date Federal recognition was extended n the higher grade, or the date following the date Federal recognition was terminated in his current Reserve grade.

3.  On 1 September 2007, the applicant was assigned to Headquarters and Headquarters Company, 56th Infantry Brigade Combat Team to serve as the Brigade Officer in Charge for the period 1 September 2007 to 28 February 2009. 

4.  On 31 March 2008, the applicant was released from active duty and ordered to active duty under Title 10, U.S. Code.

5.  Texas Army National Guard Orders, dated 10 April 2008, show the applicant was promoted to colonel with an effective date of 10 April 2008 and DOR of 
“24 July 2002.”

6.  Departments of the Army and the Air Force, National Guard Bureau (NGB), Special Orders Number 109 AR, dated 30 April 2008, show the applicant was granted Federal recognition for promotion to colonel effective 30 April 2008.   

7.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Personnel Policy and Readiness Division, NGB.  That office recommends that the applicant’s request to adjust his DOR be approved to reflect a DOR and position on the Reserve Active Status List (RASL) of 1 September 2007.  The advisory opinion points out that the applicant was selected by the DA Colonel Army Promotion List board on 4 August 2006 and that he was not promoted to the rank of colonel until 30 April 2008.  At the time of his selection for promotion, the applicant was serving in an AGR status.  Title 10 U.S. Code , section 14311 states that officers who are serving on full-time National Guard duty orders (including AGR) shall be delayed if necessary to ensure compliance with strength limits.  The applicant was required to sign a delay of promotion for this reason.

8.  The advisory opinion also points out that Title 10 U.S. Code, section 14311 further provides that in the event an officer's promotion is delayed, the DOR and position on the RASL shall be the date the officer would have been promoted to or recognized in the higher grade had the limitations imposed under regulations prescribed by the Secretary of Defense not existed.  To be fully qualified for promotion, an officer must meet all education requirements and be slotted in a valid position of the higher grade to be held.  The applicant was transferred into a valid O-6 position on 1 September 2007; therefore, his effective DOR should be adjusted to reflect that date.  This DOR does not entitle the applicant to retroactive pay.  

9.  A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  The applicant did not respond within the given timeframe.

10.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) states 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his DOR be adjusted to 4 August 2006 or 
1 September 2007.  

2.  The evidence of record shows the applicant was selected for promotion to colonel on 4 August 2006 but not in an O-6 position, and at the time of his selection he was serving in an AGR status.  The advisory opinion from the Chief, Personnel Policy and Readiness Division, NGB points out that the applicant was required to sign a delay of promotion for compliance with strength limits.  The applicant was not promoted to colonel until 28 April 2008.

3.  The governing regulation states that in the event an officer's promotion is delayed, the DOR and position on the RASL shall be the date the officer would have been promoted to or recognized in the higher grade had the limitations imposed under regulations prescribed by the Secretary of Defense not existed.  The applicant was transferred into a valid O-6 position on 1 September 2007.  There is no evidence to show he was eligible for promotion on 4 August 2006; however, it would be equitable to correct his military records to show his date of rank to colonel is 1 September 2007 with a position on the RASL of 1 September 2007.  It would be equitable to show he was granted Federal Recognition for promotion to colonel effective 1 September 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 Departments of the Army and the Air Force, National Guard Bureau, Special Orders Number 109 AR, dated 
30 April 2008, to show he was granted Federal Recognition with a colonel date of rank of 1 September 2007.

2.  That he be placed on the RASL with an effective date of 1 September 2007.




      _______ _  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)                                         AR20090011735





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ABCMR Record of Proceedings (cont)                                         AR20090011735



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