BOARD DATE:	  3 November 2009

		DOCKET NUMBER:  AR20090013026 


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 her records to show the effective date and date of rank (DOR) for her promotion to captain (CPT)/pay grade O-3 was
23 July 2008, and payment of all pay and allowances due as a result of this correction.

2.  The applicant states she took command on 2 March 2008, but was not eligible for promotion until 23 July 2008.  She adds that she was mobilized on 16 August 2008 for a period of one year and has continued to serve in a command position since 2 March 2008.

3.  The applicant provides copies of her transfer orders, assumption of command letter, mobilization orders, and State and Federal promotion orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior honorable enlisted service in the Army National Guard (ARNG) from 22 October 1998 to 22 July 2004.  

2.  The applicant was appointed as a Reserve commissioned officer of the Army in the rank of second lieutenant (2LT) on 23 July 2004.  She was appointed in the ARNG in the rank of 2LT on 4 January 2005.  The applicant was promoted to the rank of first lieutenant (1LT) on 23 July 2006.

3.  In support of her application, the applicant provides the following documents:

	a.  Texas Military Forces, ARNG, Adjutant General's Department, Austin, TX, Orders 120-1849, dated 29 April 2008, show the applicant was transferred to the 712th Military Police (MP) Company, Baytown, TX, for duty as commander, effective 2 March 2008.  These orders also show the applicant's rank at the time was 1LT and that she was qualified for the duty position.

   b.  A Headquarters, 712th MP Company, Baytown, TX, memorandum, shows the applicant assumed command of the 712th MP Company, Baytown, TX, effective 2 March 2008.

   c.  Texas Military Forces, ARNG, Austin, TX, Orders 228-610, dated
15 August 2008, show the applicant was ordered to active duty as a member of her unit (i.e., Headquarters and Headquarters Company (HHC), 56th Brigade Special Troops Battalion (BSTB) in support of Operation Iraqi Freedom for a period of active duty not to exceed 400 days.

   d.  Headquarters, U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort McCoy, Fort McCoy, WI, Order 283-029, dated 9 October 2008, shows the applicant was (at that time) assigned to Headquarters and Headquarters Battery, 146th Field Artillery Battalion, deployed in support of Operation Iraqi Freedom, and assigned to the U.S. Army Central Command, Camp Doha, Kuwait, on 13 October 2008.

	e.  Texas Military Forces, ARNG, Adjutant General's Department, Austin, TX, Orders 023-1087, dated 23 January 2009, show the applicant was assigned to HHC, 56th BSTB, and promoted to CPT (O-3) with a DOR of 23 July 2006 [emphasis added], effective 23 January 2009.  The additional instructions of these orders, in pertinent part, show:  "Duty Position Title, Para/Line, AOC:  Commander, 301/01,01A00" and "Individual will not be paid for promoted rank until Federal Recognition confirmed."

   f.  National Guard Bureau (NGB), Washington, DC, Special Orders Number 107 AR, dated 30 April 2009, announced the extension of Federal Recognition of the applicant's promotion to CPT in the ARNG, effective 28 April 2009.

4.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Division, NGB, Arlington, VA.  The Personnel Division Chief recommends disapproval of the applicant's request for adjustment of her DOR for CPT to 23 July 2008.

   a.  The advisory cites National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions), which states that the effective date of promotion for an ARNG commissioned officer who is promoted in the State is the date the Chief, NGB, extends Federal Recognition, unless otherwise provided by law.

	b.  The advisory official states that in accordance with the Reserve Officer Personnel Management Act (ROPMA), the effective date of promotion and DOR for an officer who is 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.  He also states the promotion effective date is not the date of appointment in the position or the date of the State Federal Recognition board.  Scroll lists take approximately 90 to 120 days to be approved by the Secretary of Defense due to the requirement to process the list through several offices before it is approved by the Secretary of Defense.

5.  On 24 August 2009, the applicant was provided a copy of the advisory opinion in order to have the opportunity to respond to its contents; however, as of this writing the applicant has failed to provide any response.

6.  National Guard Regulation 600-100, chapter 8 (Promotion for Other Than General Officers) provides in:

   a.  paragraph 8-2 that the effective date of promotion for an ARNG commissioned officer who is promoted in the State is the date the Chief, NGB, extends Federal Recognition unless otherwise provided by law.  An officer's DOR as a reserve of the Army will be determined by his or her duty status, type of selection board which selected the officer, and delay status (if applicable), unless otherwise provided by law; and

	b. paragraph 8-6 provides that promotion will be accomplished only when the officer is assigned to an appropriate MTOE [Modified Table of Organization and Equipment] or TDA [Table of Distribution and Allowance] vacancy in which he or she has been recommended for promotion until Federal Recognition orders are published.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the effective date and DOR for her promotion to CPT (O-3) should be corrected to 23 July 2008 and she should receive back pay for all pay and allowances due as a result of this correction because she was assigned to serve in a command position on 2 March 2008 and was promoted on 23 July 2008.


2.  Records show that Texas ARNG orders promoted the applicant to CPT (O-3) with a DOR of 23 July 2006, effective 23 January 2009.  (It appears there is a typographical error in the DOR on the orders because the applicant's DOR is recorded elsewhere and throughout her records as 23 July 2008.  In addition, the applicant cites 23 July 2008 as her proper DOR.)  These orders also show that the applicant would not be paid for the promoted rank until Federal Recognition was confirmed.

3.  ROPMA provides that the effective date of promotion and DOR for an officer who is promoted under the position vacancy promotion system will be the date the Chief, NGB, extends Federal Recognition.

4.  Records show that NGB special orders announced the extension of Federal Recognition of the applicant's promotion to CPT in the ARNG effective 28 April 2009.  Therefore, in view of all of the foregoing, the applicant is not entitled to correction of her records to show she was promoted to CPT with an effective date and DOR of 23 July 2008.

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)                                         AR20090013026



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ABCMR Record of Proceedings (cont)                                         AR20090013026



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