IN THE CASE OF:	  

		BOARD DATE:	    18 May 2010

		DOCKET NUMBER:  AR20090012083 


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 correction of his effective date and date of rank to major (MAJ) to reflect 7 June 2006.

2.  The applicant states that he was not selected for promotion to MAJ because his record was still flagged as though he was not educationally qualified.  Although he was selected for promotion by a special selection board (SSB) he did not receive the same effective date and date of rank as if he had been selected by the Department of the Army (DA) Reserve Components Selection Board (RCSB).

3.  The applicant provides copies of the following documents:

* Two U.S. Army Aviation Center, Fort Rucker, AL course completion certificates dated in October/December 2005
* a U.S. Army Human Resources Command, St. Louis, MO (USAHRC-STL) memorandum, subject: Notification of Promotion Status, dated 30 June 2006, notifying him of his non-selection for promotion to MAJ
* his memorandum request for an SSB, dated 15 August 2006
* Headquarters Military Department, State of Washington, Camp Murray, Tacoma, WA, Orders 264-053, dated 21 September 2006
* Same headquarters, Orders 298-019, dated 25 October 2006, revoking Orders 264-053
* Table of Organization and Equipment (TO&E) for Headquarters and Headquarters Company (HHC), 66th Aviation Brigade, dated
20 November 2006
* USAHRC-STL promotion board computer records showing his completed courses and indicating he was non-educationally qualified for promotion, dated 20 November 2006
* USAHRC-STL Academic Evaluation Reports (AER) computer listing, dated 20 November 2006, with accompanying DA Forms 1059 (Service School AER)
* USAHRC-STL memorandum, subject:  Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty, dated 3 July 2007, notifying him of his selection for promotion to MAJ
* National Guard Bureau (NGB) Special Orders Number 299 AR, dated
30 November 2007, extending him Federal recognition for the purpose of promotion to MAJ, effective 30 November 2007

CONSIDERATION OF EVIDENCE:

1.  The applicant, an Army National Guard officer, was not selected for promotion to MAJ by the 2006 RCSB because his records did not indicate he had completed the required civilian and/or military education by the convening date of the board.

2.  An SSB that adjourned on 28 March 2007 subsequently selected him for promotion to MAJ.

3.  Orders 264-053, dated 31 September 2006, transferred him to a MAJ's position, effective 19 September 2006.

4.  Orders 298-019, dated 25 October 2006, revoked Orders 264-053.

5.  On 23 November 2007, the applicant was assigned to a MAJ's position and promoted with that effective date and date of rank.

6.  NGB Special Orders 199, dated 30 November 2007, extended Federal recognition to the applicant, effective 30 November 2007.

7.  The documents submitted by the applicant show:

* Orders 264-053, dated 21 September 2006, transferred the applicant for assignment to HHC, 66th Combat Aviation (Corps), Camp Murray, Tacoma for assignment as Assistant S3/SIMS Officer, effective
19 September 2006;

* TO&E for HHC, 66th Aviation Brigade indicates that the Assistant S3/SIMS Officer's position is a pay grade O-4 billet;
* Orders 298-019, dated 25 October 2006, revoked Orders 264-053.

8.  In the processing of this case, on 25 March 2010, an advisory opinion was obtained from the Chief, Personnel Division, NGB.  The advisory official essentially notes that the applicant could not be promoted to MAJ until he was assigned to a MAJ's position, which did not occur until 23 November 2007.

9.  The advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He responded on
2 April 2010.  In his rebuttal, he maintained that his 9 September 2006 assignment to a MAJ's position was revoked due to the State's receipt of the non-selection notice.

10.  Army Regulation 135-155 (Army National Guard and U.S. Army Reserve, 
Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) paragraph 4-15 states, "…the effective date of promotion for commissioned officers (except commissioned warrant officers) may not precede the date on which the promotion memorandum is issued.  Do not issue the promotion memorandum before the date the promotion board results are approved and confirmed by the Senate (if required).  In addition, the officer must already be assigned/attached to a position in the higher grade [emphasis added] or, if an IRR/IMA.…"

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that he was not selected for promotion to MAJ because his record showed he was not educationally qualified.  Although he was selected for promotion by an SSB, he did not receive the same effective date and date of rank as if he had been selected by the proper RCSB.

2.  There is no substantiating evidence to corroborate the applicant's contention that there is a connection between the error in the applicant's record and the revocation of the 21 September 2006 transfer orders.

3.  The applicant was appropriately promoted to MAJ when he was assigned to a valid MAJ's position and extended Federal recognition for the purpose of promotion, which did not occur until 23 November 2007.

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.

5.  Based on the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090012083



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ABCMR Record of Proceedings (cont)                                         AR20090012083



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