IN THE CASE OF:	

		BOARD DATE:	  27 April 2010

		DOCKET NUMBER:  AR20090013721 


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 records as follows:

	a.  Adjustment of his date of rank (DOR) to major (MAJ) from 16 April 1997 to a date not later than 31 March 1997.

	b.  Adjustment of his DOR to lieutenant colonel (LTC) from 15 April 2004 to a date not later than 31 March 2004.

	c.  Consideration by a Special Selection Board (SSB) for promotion to colonel (COL)/O-6 to justify his reinstatement to serve until 30 years of commissioned service.

	d.  Personal appearance hearing.

2.  The applicant also requests reconsideration of his earlier request to change his Mandatory Retirement Date (MRD) from 31 May 2009 to a date not earlier than 12 June 2009 or a date that falls outside the 90-day window between his MRD and the Department of the Army (DA) O-6 Selection Board that convened on 11 March 2009.

3.  The applicant states he wishes to continue to serve his country honorably as he has for the past 28 years beyond his current MRD of 31 May 2009 and he desires to be considered for promotion to COL.  He believes he is in the top five percent of Reserve Component (RC) LTCs who were recently considered for 

promotion to COL during the DA O-6 Selection Board that convened on 11 March 2009.  He is a graduate of the Command and General Staff College (CGSC) and he holds a Master's Degree in Management.  He was selected for Senior Service College (Army War College non-resident).  Unfortunately, he had to decline this opportunity in the best interest of the Soldiers he served while deployed to Kosovo as a tactical commander for a battalion-size task force.  He elaborates as follows:

	a.  Previous human error and unnecessary delays in processing his promotion from captain (CPT) to MAJ in a timely manner has had a cumulative and detrimental effect upon his Army career, particularly when the policy changed in the timing of the promotion boards from convening every 12 months to 18 months, commencing Fiscal Year (FY) 2008.  A DOR adjustment to MAJ and LTC is necessary due to human error and needless delays to promptly process his Federal Recognition Promotion Packet until after an official transfer order was completed on 14 February 1997, two and a half months after he was assigned to the unit on 1 December 1996.  This delay to process his promotion packet in a timely manner from the Massachusetts Army National Guard (MAARNG) to the National Guard Bureau (NGB) for Federal recognition in effect caused him to lose a year of promotional eligibility which cumulatively cost him the opportunity to go before the DA O-6 Selection Board.

	b.  Due to the policy change in timing of the promotion boards from convening every 12 months to 18 months, commencing in FY08, the DA O-6 Selection Promotion Board he would have been considered for sat on 11 March 2009 instead of what had been the policy of annual boards which would have been held in October 2008.  By perhaps as little as eleven days, he fell inside the
90-day window of ineligibility from the time the O-6 Board convened in March 2009 to his MRD, per paragraph 2-5h of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers).  Assuming he had been selected for COL/O-6 based on outstanding performance, [two LTC/O-5 commands (1st Civil Support Team - Weapons of Mass Destruction (CST - WMD) and Squadron Commander), Officer Evaluation Reviews, two combat zone mobilizations and deployments (Kosovo and Afghanistan), a Bronze Star Medal and three Meritorious Service Medals], he would be able to continue to serve honorably for at least 30 years instead of
28 years.  He does not believe it was the intent of this new promotion board policy to create the type of situation to which he currently finds himself; nevertheless, it has had a catastrophic effect upon his career.

	c.  In January 2009 LTC E------, NGB, G1 Office, on behalf of the Texas Army National Guard (TXARNG), recalculated his MRD to 19 June 2009 and he was 

instructed to prepare for the upcoming DA O-6 Selection Board.  In late February 
2009, LTC E------ notified him again that his recalculated MRD was made in error, and that his former MRD would stand as 31 May 2009.  Subsequently, his name was removed from the promotion board eligibility list.

	d.  He graduated from Norwich University [VT] and he was commissioned as a second lieutenant (2LT) in the U.S. Air Force (USAF) on 23 May 1981.  He served until an issue with one of his knees precluded his future flying career.  On 6 June 1984, he received a direct commission in the U.S. Army Reserve (USAR). Following his graduation from Infantry Officer Basic Course (IOBC), he was promoted to first lieutenant (1LT).  He was promoted to CPT in January 1989.  He proudly served in a USAR Troop Program Unit (TPU) - Special Forces Company until it was deactivated and reactivated on the same day in August 1994, as a new formation within the MAARNG.  He continued to serve as a traditional M-Day Soldier within the MAARNG until August 1999, when he was recalled to active duty to serve a 3-year tour as a Reserve Officers' Training Corps (ROTC) Assistant Professor of Military Science at Northeastern University [MA].  After the tragic events of 11 September 2001, he was asked to remain on active duty, where he continued to serve as an Active Guard Reserve (AGR) officer in command assignments for the next 6 and 1/2 years, first as the Deputy Commander, then Commander of the 1st CST-WMD, culminating with command of a Cavalry Squadron that mobilized and deployed as Task Force Patriot to Kosovo for 15 months.  Although he was asked to remain on AGR status, he understood he could not retire with 20 good active duty years.  He knew this prior to being recalled to active duty as an AGR officer in 1999.  On 14 March 2008, he resigned from the MAARNG as an AGR officer, effective 1 July 2008, in order to deploy to Afghanistan before reaching his MRD.  On 26 June 08, he became part of the TXARNG Red Team Program, and on 1 July 2008, he mobilized and deployed as a Red Team Leader to serve as part of the first Red Team to deploy with Special Operations Forces.  He was attached to the 7th Special Forces Group and he served as Special Staff to the Commander of the Combined Joint Special Operations Task Force-Afghanistan from 20 July 2008 to 20 January 2009.

	e.  In August 1994, Company A, 1st Battalion, 11th Special Forces Group (SFG), Fort Devens, MA, deactivated from the USAR and immediately reactivated as D Company, 1st Battalion, 20th SFG, Westover Air Force Base, MA, as part of the MAARNG.  He served as a Special Forces Company Executive Officer until he was chosen to serve as an Infantry Battalion Operations Officer - S3 on1 December 1997, which was a MAJ/O-4 billet.  He became eligible for promotion to MAJ by a promotion board that adjourned on     5 April 1996.

	f.  A preliminary Federal recognition promotion packet was completed on 19 November 1996.  Unfortunately a formal packet was not sent forward to NGB for another 3 and 1/2 months through no fault of his own due to unnecessary delays between the 1st Battalion, 181st Infantry and the MAARNG. He was eligible for promotion to MAJ as of 30 January 1997 [Promotion Eligibility Date (PED)] and he was serving in a MAJ/O-4 billet as of 1 December 1997.  However, it was not until 30 March 1997 that Headquarters (HQ) MAARNG promoted him to MAJ, pending Federal recognition which was not until 16 April 1997 or 16 days beyond 31 March 1997, the critical annual promotion board eligibility cutoff date that separates one year group from another.  At the time he was a relatively new officer with the MAARNG and he was not familiar with the NGB Federal recognition process versus the USAR promotion process.  In addition, he was not aware his MRD changed from 22 June 2009 to 31 May 2009.  It is his assumption that his Federal recognition promotion packet was not completed and forwarded to NGB until sometime in March 1997, after an official transfer order was published on 14 February 1997.  From the time it took to process his preliminary promotion packet on 19 November 1996 to finally receiving his Federal recognition date of 16 April 1997 seems excessive; at best irresponsible and at worst negligent.

	g.  It was essential that if he wanted to remain competitive for future promotion consideration to LTC and then to COL before reaching his MRD, he needed to be promoted upon his first opportunity of promotion eligibility.  Previously, he had lost 2 crucial years of commissionable service transferring his commission from the U.S. Air Force Reserve (USAFR) to the USAR from June 1982 to June 1984.  If his DOR for MAJ had occurred on or before 31 March 1997, he would have been eligible for the October 2007 O-6 board.  Since his DOR became 16 April 1997, he would not become eligible for promotion to COL until the planned October 2008 O-6 board.  If the board had in fact been held in October 2008, assuming he was selected for COL, he would have had 7 months before reaching his MRD in which to be assigned to an O-6 position and Federally recognized.

	h.  In August 2007, during his 15-month mobilization and deployment to Kosovo as a tactical commander of a battalion-size task force, he learned of a new policy regarding promotion boards that would become effective beginning FY08.  Under this new policy promotion boards would be held every 18 months rather than every 12 months.  As a result, the October 2008 COL/O-6 board was rescheduled for March 2009 and it was held on 11 March 2009 or within the
90-day ineligibility window from his MRD, effectively ending any further chance of promotion consideration to COL.  Had he not been new to the TXARNG or deployed for 6 months with the Combined Joint Special Operations Task Force - 

Afghanistan, he may have been able to find a COL/O-6 position as a traditional 
M-day Soldier within the TXARNG in which he might have received a “vacancy promotion” authorization from NGB prior to the 8 December 2008 cutoff.   Instead he chose to deploy to a war zone and put himself in harm’s way.

	i.  In his 25-year USAR and ARNG career, he has had the privilege to serve in command for over 15 years within Special Forces, the Infantry, and the Cavalry, as well as on the front lines of Homeland Security with the 1st CST/
WMD.  He is 51 years old and he is in great physical condition and excellent health to continue to serve the U.S. Army and his country honorably.  He is 6 feet tall and he weighs 195 pounds.  Today, he remains as steadfast in his love of country after serving in the military for the past 28 years.  He will always stand for the principles and virtues in which this country was founded.  His family has served this country dating back to the colonial period in 1636 when Roger Conant, his direct ancestor, stood at the First Muster in Salem, MA.  He believes his situation warrants special consideration by the Board to adjust his DOR for MAJ and subsequently adjust his DOR for LTC and extend his MRD accordingly.

4.  The applicant provides a binder with a Table of Contents with various attachments in support of his request.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR), regarding adjustment of his MRD, in Docket Number AR20070008516, on 7 February 2008.

2.  The applicant submitted a binder with a Table of Contents with various attachments, some of which were previously submitted, and a new argument which was not previously considered; therefore, they are considered new evidence and as such, warrant consideration by the Board.

3.  The applicant's service records show he was born on 7 July 1958 and he was appointed as a Reserve commissioned officer in the USAFR in the rank of 2LT on 23 May 1981.  He served on active duty as a commissioned officer of the USAFR from 4 October 1981 through 13 June 1982. 

4.  He was honorably released from active duty in the rank of 2LT on 13 June 1982 by reason of involuntary release - failure to complete flying or technical training.  He was transferred to the USAFR Obligated Reserve Section (OSR) Individual Ready Reserve (IRR) on 23 September 1982.  He was subsequently honorably discharged from the USAFR on 5 June 1984.
5.  His records show he was appointed as a 2LT in the USAR and executed an oath of office at the age of 25 years and 11 months on 6 June 1984.  He served on active duty from 22 September 1984 through 9 August 1985 during which he completed IOBC and was promoted to 1LT on 31 January 1985.

6.  On 23 May 1985, he voluntarily transferred from the USAR to the MAARNG and was assigned to the 1st Battalion, 11th SGF, Fort Devens.  He subsequently completed the Special Operations Detachment Officers Course.

7.  On 14 December 1988, by letter, Headquarters, First U.S. Army, Fort Meade, MD, notified him that he was promoted as a Reserve of the Army to CPT effective 31 January 1989.

8.  On 7 August 1994, he submitted an application for appointment as an ARNG officer.  He executed an NGB Form 337 (Oaths of Office) and he was granted temporary Federal Recognition as a CPT in the MAARNG.

9.  On 15 September 1994, the NGB published Special Orders Number 76 AR extending him permanent Federal recognition for appointment as a CPT in the MAARNG, effective 7 August 1994.  He was appointed as the Executive Officer (XO) of Detachment 1, 1st Battalion, 20th SFG, Chicopee, MA.

10.  On 2 June 1995, by letter, the U.S. Total Army Personnel Command (now known as the U.S. Army Human Resources Command or HRC), St. Louis, MO, notified him that his records were considered by the 14 March 1995 Reserve Components Selection Board (RCSB) for promotion to MAJ, but he was not selected.

11.  On 10 June 1996, by memorandum, HRC-St. Louis notified him that he had been selected for promotion to MAJ by the 5 April 1996 RCSB and that his PED and grade would be used to compute his time in grade (TIG) for promotion to the next higher grade.  The effective date of promotion would be the later of the following:

	a.  30 January 1997,

	b.  Date Federal recognition is extended in the higher grade, or

	c.  Date following date Federal recognition is terminated in current Reserve grade.

12.  On 7 August 1996, he was branch-transferred from the infantry (IN) branch to the special forces (SF) branch and on 1 December 1996, he was transferred to Headquarters and Headquarters Company, 1st Battalion, 181st Infantry, Worcester, MA.

13.  Subsequent to the applicant's selection for promotion, by endorsement, dated 23 September 1996, the Chief, Military Personnel Plans and Actions Branch, MAARNG, congratulated him on his selection and requested he indicate, by 31 October 1996, his desire to:

	a.  Accept this promotion and continue to serve in the MAARNG,

	b.  Accept this promotion and transfer to the USAR, or

	c.  Decline this promotion for up to 3 years from the date of selection (5 April 1996), subject to approval by The Adjutant General (TAG).

14.  On 1 October 1996, by endorsement, his battalion adjutant notified him that he must comply with the requirements of the promotion memorandum as well as the endorsement regarding his decision.

15.  There is no indication that the applicant responded to this endorsement or made a selection.

16.  On 12 November 1996, the applicant submitted a DA Form 4187 wherein he requested to be relieved from assignment as the XO, C Company, 1st Battalion, 20th SFG, and he requested transfer to the Battalion S3 position, 1st Battalion, 181st Infantry, Worcester.

17.  On 14 February 1997, the Adjutant General's Division, MAARNG, published Orders 45-18 transferring him to the 1st Battalion, 181st Infantry, effective 1 December 1996.

18.  On 26 February 1997, by memorandum to the 26th Infantry Brigade, the Commander, 1st Battalion, 181st Infantry, recommended the applicant for promotion to MAJ, and on 2 March 1997, the Commander, 2d Infantry Brigade, recommended approval.

19.  On 30 March 1997, the Adjutant General's Office, MAARNG, published Orders 89-3 promoting him to MAJ, effective 30 March 1997.  The orders stated 
that he would not be paid in the higher grade until Federal recognition was 
confirmed and that the effective date of promotion and DOR would be the date the Chief, NGB, extended Federal recognition.

20.  On 16 April 1997, the NGB published Special Orders Number 74 AR extending him Federal recognition for promotion to MAJ with an effective date of 16 April 1997.

21.  On 14 September 1997, he was transferred from the 1st Battalion, 181st Infantry to Company C, 1st Battalion, 20th SFG, Springfield, MA, and he was assigned as a company commander.

22.  On 11 May 1998, by letter, HRC-St. Louis notified him that he was promoted as a Reserve commissioned officer of the Army to MAJ with an effective date of 16 April 1997 and a DOR of 30 January 1997.

23.  On 9 August 1999, he was ordered to Full-Time National Guard Duty (FTNGD) in an AGR status and he was assigned to Northeastern University as a professor of military science.  On 20 June 2002, he completed CGSC.

24.  On 1 July 2003, Office of the Adjutant General, MAARNG, issued him a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified him that he had completed the required years of service for non-regular retirement and upon application, he would be eligible for retired pay at age 60.

25.  On 19 February 2004, by memorandum, HRC-St. Louis notified him that he had been selected for promotion to LTC by the 19 September 2003 RCSB and that his PED and grade would be used to compute his TIG for promotion to the next higher grade.  The effective date of promotion would be the later of the following:

	a.  15 April 2004,

	b.  Date Federal recognition is extended in the higher grade, or 

	c.  Date following date Federal recognition is terminated in current Reserve grade.

26.  On 2 March 2004, he was again ordered to FTNGD in an AGR status and he was assigned as commander of 1st CST-WMD, Natick, MA.

27.  On 29 December 2004, Joint Force Headquarters, MAARNG, published Orders 364-4 promoting him to LTC, effective 29 December 2004.  The orders
stated he would not be paid in the higher grade until Federal recognition was confirmed and that the effective date of promotion and DOR would be the date the Chief, NGB, extended Federal recognition.

28.  On 11 January 2005, the NGB published Special Orders Number 12 AR extending him Federal recognition for promotion to LTC with an effective date of 11 January 2005 and a PED or DOR as 15 April 2004.  Also on the same date, by letter, HRC-St. Louis notified him that he was promoted as a Reserve commissioned officer of the Army to LTC with an effective date of 11 January 2005 and a DOR of 15 April 2004.

29.  On 1 November 2005, he was reassigned to the 1st Battalion, 182nd Infantry, Dorchester, MA, as a battalion commander; however, his orders were revoked, and on 15 December 2005, he was reassigned to the 1st Squadron, 182nd Cavalry, Melrose, MA.

30.  On 5 April 2006, he was extended Federal recognition for a branch transfer from SF to IN.

31.  On 7 August 2006, he was honorably released from active duty to the control of his ARNG unit, the 1st Battalion, 182nd Infantry.

32.  On 8 August 2006, he again entered active duty and subsequently served in Kosovo from 16 October 2006 to 1 November 2007.  He was honorably released from active duty on 8 November 2007 to the control of his ARNG unit, the 1st Squadron, 182nd Cavalry.

33.  On 9 November 2007, he was again ordered to FTNGD in an AGR status.  He was honorably released from active duty on 24 June 2008 to the control of his ARNG unit, the 1st Squadron, 182nd Cavalry.

34.  On 8 February 2008, the ABCMR denied his March 2007 request for correction of his MRD.

35.  On 14 March 2008, by memorandum to TAG, he resigned his AGR Title 32 LTC position with the MAARNG, effective 1 July 2008.

36.  On 17 April 2008, he was extended Federal recognition for a branch transfer from IN to SF.

37.  On 3 July 2008, he transferred to the TXARNG and he was assigned to the Joint Forces Headquarters, TXARNG, Austin, TX.

38.  On 1 July 2008, he was ordered to active duty in support of Operation Enduring Freedom (OEF) and subsequently served in Afghanistan from 20 July 2008 to 20 January 2009.  He was honorably released from active duty on
22 March 2009 to the control of his ARNG unit.
39.  On 31 May 2009, having reached his MRD, Federal recognition was withdrawn for transfer to the USAR.

40.  He submitted the following documents:

	a.  A letter, dated 23 June 2009, from Major General (MG) B------, the Deputy Commander, Mobilization and Reserve Affairs, Alabama ARNG (ALARNG), wherein the MG strongly recommends the applicant's reconsideration for promotion to COL.  He chronicles his background and experience with the applicant and concludes that the issue for his records is one of timing.  The timing of his transition from the USAF to the USAR/ARNG hampered his board consideration.

	b.  A letter, dated 8 July 2009, from Brigadier General (BG) W--------, the Commanding General, 42nd Infantry Division, New York ARNG (NYARNG), wherein he recommends adjustment of the applicant's MRD because his career was adversely affected by his transition from the USAF to the USAR and because he is more than capable of serving in uniform for years to come.

	c.  A letter, dated 2 March 2010, from MG (Retired) V-----, the former TAG of the MAARNG, wherein he states that he personally observed personnel actions which placed some of the officers in jeopardy regarding delays in their promotion. These activities occurred prior to his assignment in 1993 and some cases were corrected; however, the applicant's case continued despite a closer look at all promotions, mandatory retirement dates, etc.  He adds that he fully understands and agrees that the applicant's DOR needs to be adjusted as requested and the resulting action of this Board should bring remedial action in rewarding the applicant's outstanding performance of duty.  He opines that the applicant should be provided an opportunity to have his records go before an SSB and he should be promoted to COL.

	d.  A letter, dated 14 April 2010, from COL (Retired) J--, the former Chief of Staff (CofS) to TAG, MAARNG, wherein he states that several problems surfaced at the time regarding promotions and MRDs of some officers.  Although TAG and 
his staff effectively resolved many of these problems, some problems regarding promotions and MRDs still existed in 1996 and 1997 and the applicant is one of them.  He distinctly remembers the applicant's promotion packet was delayed in 
transmittal resulting in a DOR to MAJ of April 1997 rather than February 1997 as would have been the customary timeline given the date of his preliminary promotion packet of November 1997.  These delays were through no fault of the applicant but due to the inaction of parties involved with the submission of his promotion packet.  He should not be penalized for this action.

41.  In the processing of this case, on 16 March 2010, an advisory opinion was obtained from the NGB, Chief, Personnel Division.  The advisory official states: 

	a.  With respect to adjustment of the applicant's MAJ DOR, the NGB recommended adjustment of his MAJ DOR to 30 March 1997.  The State promotion order, MAARNG Order Number 89-3, dated 30 March 1997, establishes this as the date on which he was appointed as a MAJ in the MAARNG.  Title 32, U.S. Code, section 310(b) states, in pertinent part, that “extension of Federal recognition of a National Guard officer is effective as of the date when the officer is appointed in the National Guard.”  This statute implements Article I, Section 8 of the U.S. Constitution, which reserves to the States the right to appoint officers in the militia.  At the time of his selection and appointment to MAJ, the applicant was not serving in an active status as an AGR or mobilized officer.  Therefore, he was not subject to the AGR “controlled grade” limitations of Title 10, U.S. Code, section 12304, nor was he serving in an involuntary period of active duty which would have prevented him from accepting immediate promotion as a Reserve of the Army upon publication of the FY97 MAJ Army Promotion List (APL) Promotion Board results.  The fact that he did not accept his promotion in this manner, with the requisite transfer to the Individual Ready Reserve (IRR), is an indication that he chose to voluntarily delay his promotion until such time as he was appointed in that higher grade in the MAARNG.

	b.  With respect to adjustment of his LTC DOR, the NGB recommended adjustment of the applicant's DOR to 29 March 2004.  At the time of this selection, he was serving in an AGR status.  Therefore, under the provisions of Army Regulation 135-155, section 4-21d, upon promotion the officer’s DOR would be established on the date the officer achieved the maximum time in grade in accordance with Table 2-1 of that regulation and Title 10, U.S. Code, section 12304.  This adjustment is necessary only if the Board accepts the recommended adjustment to his MAJ DOR as discussed above.

	c.  With respect to his MRD, the NGB recommended disapproval.  There is no regulatory or statutory basis for such an adjustment.  He was commissioned on 23 May 1981.  Under the provisions of Title 10, U.S. Code, section 14507(a) and National Guard Regulation 635-100 (Termination of Appointment and Withdrawal
of Federal Recognition) the maximum length of commissioned service for an LTC is 28 years.

	d.  With respect to his request for his record to be forwarded to an SSB, the NGB recommended disapproval.  The DA COL APL Mandatory Promotion Board for FY09 convened on 11 March 2009.  Section 2-5h of Army Regulation 135-155 states, "An officer who has an established date for removal from the Reserve Active Status List or RASL…with an established date for removal from active status, that is 90 days or less from the convening date of the selection board for which the officer would otherwise be eligible, is not eligible for consideration (Title 10, U.S. Code, section 14301(f) and 12242)."  The statutory language is even more clear:  Title 10, U.S. Code, section 14507(f) states, “The Secretary of the military department concerned may, by regulation, provide for the exclusion from consideration for promotion by a promotion board of any officer otherwise eligible to be considered by the board who has an established date for removal from the reserve active-status list that is not more than 90 days after the date on which the selection board for which the officer would otherwise be eligible is to be convened.”  He reached his MRD on 31 May 2009; thus, under the provisions of Title 10, U.S. Code, section 14507(f), he was ineligible for consideration by the FY09 promotion board.  Even with the adjusted promotion dates recommended above, he would not have been eligible for consideration by the FY09 COL board.  Therefore, while his DORs to MAJ and LTC should be adjusted, this adjustment does not constitute an error in the officer’s promotion record that would justify consideration by an SSB.

   e.  In the applicant's application, he submitted a letter from MG (Retired)
V-----, who served as TAG of the State of Massachusetts at the time the applicant was appointed to MAJ in the MAARNG, dated 1 March 2010.  While this letter indicates support of the applicant’s request, it does not provide an explanation of the delay of his promotion to MAJ.  There is no information in this letter that would help to establish the date on which TAG had intended to appoint the officer to the higher grade.  Barring specific information in kind, there is no source other than the State promotion order by which to determine the date on which the officer was to have been promoted in the MAARNG.

	f.  He also provided memoranda of support from the current TAG of Massachusetts, the MAARNG Military Personnel Officer (MILPO), and the Assistant TAG of the TXARNG.  The opinions of these officers are recognized and valued; however, none of these letters provide any facts that would merit reconsideration of the applicant's dates of rank or his MRD.

	g.  According to the HRC-STL memorandum, dated 2 June 1995, he was not selected for promotion to MAJ.  He was selected for promotion to MAJ by the 1996 selection board, with an effective dated of 30 January 1997.  On
23 September 1996, the State MILPO sent an endorsement to a memorandum to the officer for acceptance of promotion in the State upon commander’s recommendations and qualification, delay, decline, or accept the promotion with transfer to the USAR (no record was found that the officer responded to the MILPO).

	h.  State Order Number 45-18, dated 14 February 1997, was published transferring him from the SFG, XO position to an Infantry Battalion S3 Operation (MAJ position) to be effective 1 December 1996.  State Order Number 89-3, dated 30 March 1997, was published for promotion to MAJ effective the same date the order was published.  NGB Special Order number 74 AR extending Federal recognition was published with a promotion effective date of 16 April 1997.

	i.  On 19 February 2004, HRC-STL published a memorandum for selection of promotion to LTC to be effective 15 April 2004.  State Order Number 364-4, dated 29 December 2004, was published for promotion to LTC effective the same date.  NGB Special Order Number 12 AR extending Federal recognition was published with a promotion effective date of 11 January 2005 with a PED of 15 April 2004, due to officer being in the AGR program at the time.  He was transferred from the MAARNG to TXARNG on 26 June 2008, per NGB Special Order Number 228 AR.

42.  On 19 March 2010, a copy of the advisory opinion was furnished to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 15 April 2010, the applicant submitted a rebuttal wherein he stated:

	a.  In partially recommending approval, it is presumed that the NGB agrees that there was a gross lack of diligence in processing his Federal recognition promotion packet in a reasonable manner.  It took 148 days to process his packet (9 November 1996 until 16 April 1997).  The letters submitted by the former TAG of the MAARNG and that of the former CofS confirm such delay.

	b.  His DOR should in fact be adjusted to 14 February 1997 rather than 30 March 1997 as recommended by the NGB.  This is the date an order was issued to assign him as the Battalion S3, 1st Battalion, 181st Infantry, effective 
1 December 1996.  The delay (76 days) from the date of assignment to the date the orders were published may have contributed to the delay in processing his Federal recognition packet.

	c.  Upon adjustment of his DOR to MAJ to 14 February 1997, his DOR to LTC would also need to be adjusted based on the LTC APL Board eligibility.  The Board should recognize that there was an error in that he should have been considered by the 2002 LTC DA Selection Board and to COL by the DA Selection Board that convened in October 2007.

	d.  Although the NGB opinion states that he was not selected for promotion to MAJ in 1995, the NGB did not acknowledge the reason for his non-selection at first look.  In August 1994, his unit was deactivated from the USAR and reactivated in the ARNG.  This was part of a Department of Defense (DOD) policy to merge all combat arms into the ARNG.  Consequently, in 1994, there was no funding to send officers to professional military schools.  As a result, he could not attend the resident Infantry Officer Advanced Course and he ended up attending the RC resident phase in September 1994.  He also completed the Combined Arms and Services Staff School (CAS3); but, the promotion board that did not select him convened in April 1995, one month prior to his completion of CAS3.

43.  Title 32, U.S. Code, section 310(b) states if an officer of the USAR or the USAFR in a Reserve grade above second lieutenant is appointed in the next higher grade in the National Guard to fill a vacancy in a Federally recognized unit in the National Guard, Federal recognition is automatically extended to that officer in the grade in which the officer is so appointed in the National Guard if the officer has been recommended for promotion under Title 10, U.S. Code, section1405 and has remained in an active status since the officer was so recommended.  The extension of Federal recognition under this subsection is effective as of the date when the officer is appointed in the National Guard.

44.  Army Regulation 135-155 provides policy for the selection and promotion of commissioned officers of the ARNG and USAR.

	a.  Paragraph 2-5(a) states that to be eligible for consideration for promotion to the next higher grade, an ARNG or USAR officer must have continuously performed service on either the RASL or the ADL (or a combination of both lists) during the 1- year period ending on the convening date of the promotion board, and must meet the TIG requirements in Table 2-1 or Table 2-3, as appropriate.

	b.  Paragraph 4-19 states that the promotion of an officer selected after having been failed of selection on a first mandatory consideration cannot be earlier than the approval date of the second mandatory board by which the officer is considered.

	c.  Paragraph 4-21(a) states that the effective date of promotion may not precede the date of the promotion memorandum.

	d.  Paragraph 4-21(d) states that AGR officers selected by a mandatory board will be promoted provided they are assigned/attached to a position in the higher grade.  An AGR officer who is selected for promotion by a mandatory promotion board, but who is not assigned/attached to a position in the higher grade will be promoted on the date of assignment/attachment to a higher graded position or the day after release from AGR status.  The DOR will be the date the officer attained maximum TIG or the date on which assigned/attached to a position in the higher grade, whichever is earlier.

	e.  Table 2-1 states that for promotion from CPT to MAJ and from MAJ to LTC, the minimum years in the lower grade is 4 years and the maximum years in the lower grade is 7 years.

45.  Title 10, U.S. Code, section 14507 (Removal from the Reserve active-status list for years of service:  Reserve LTCs and COLs of the Army, Air Force, and Marine Corps and Reserve commanders and Captains of the Navy) provides, in pertinent part, that a commissioned officer who holds the rank of LTC and who is not on a list of officers recommended for promotion to the next higher grade shall (if not earlier removed from the Reserve active-status list) be removed from that list under section 14514 of this title on the first day of the month after the month in which the officer completes 28 years of commissioned service.

46.  DOD Financial Management Regulation (FMR), Volume 7A (Military Pay Policy and Procedures - Active Duty and Reserve Pay), Chapter 1 (Basic Pay), paragraph 0101 (Creditable Service), provides that creditable service periods include active or inactive service in any  of the following components without restriction:  Regular service in the Army, Air Force, Navy, Coast Guard, and Marine Corps; Army, Naval, Marine Corps, Air Force, and Coast Guard Reserve; Army of the United States (service without specification of component); Army National Guard; Army National Guard of the United States; National Guard; National Guard of the United States; Air Force of the United States (service without specification of component); Air National Guard; Air National Guard of the United States; Nurse Corps and Nurse Corps Reserve of the Public Health Service; and Public Health Service and Reserve Corps of the Public Health 
Service.  This document also provides, in pertinent part, that other creditable service includes periods of service as a member of the Army, Navy, or Air Force ROTC, provided the member has concurrent Selected Reserve (drilling status) for duty performed on or after 1 August 1979.

47.  Army Regulation 140-10 (Army Reserve - Assignments, Attachments, Details, and Transfers) prescribes policy and procedures for assigning, attaching, removing, and transferring USAR Soldiers.  It also defines Ready Reserve Control Groups and the Selected Reserve, provides detailed procedures for removing Soldiers from an active status, and gives procedures for inter-service transfer and selective retention of unit Soldiers.  Chapter 7 (Removal from Active Status) provides guidance, with some exceptions, for the removal of commissioned officers for maximum age and/or length of service.  Paragraph 7-2 (Length of service) of this regulation provides, in pertinent part, that 1LTs, CPTs, MAJs, and LTCs will be removed upon completion of 28 years of commissioned service, if under age 25 at initial appointment.  The actual removal date will be within 30 days after the date of completion of the maximum years of service.

48.  Title 10, U.S. Code, section 14502(b) states that in the case of an officer who was eligible for promotion and was considered for selection for promotion from in or above the promotion zone by a selection board but was not selected, the Secretary of the military department concerned may, under regulations prescribed by the Secretary of Defense, convene an SSB to determine whether the officer should be recommended for promotion, if the Secretary determines that:

	a.  the action of the selection board that considered the officer was contrary to law or involved material error of fact or material administrative error or

	b.  the selection board did not have before it for its consideration material information.

49.  Army Regulation 135-155 prescribes the policies and procedures for the promotion of USAR and ARNG officers.  This regulation specifies that promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error, which existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual’s non-selection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required civilian and/or military schooling.

50.  National Guard Regulation 635-100 prescribes policies, criteria, and procedures governing the separation of commissioned officers of the ARNG.  It 
states that the years of service of Reserve commissioned officers of the Army are the greater of the sum of the officer's years of service as a commissioned officer of any component of the armed forces of the Army or of the Army without specification of component and the years of constructive service accredited to the officer; or the number of years by which the officer's age exceeds 25 years. Unless contrary to State law and regulations, the appointment of ARNG officers should be terminated for completion of maximum years of service.  Except as otherwise indicated, officers in various grades who are not earlier removed from an active status will be removed from an active status in the ARNG on the date that is 30 days after completion of the total years of service or on the anniversary whichever is later.  For LTC and below, all branches, the maximum years of service is 28 years.

51.  National Guard Regulation 600-100 (Federal Recognition and Related Personnel Actions) prescribes policies and procedures governing the appointment, assignment, temporary Federal Recognition, Federal Recognition, reassignments, transfers between States, branch details, utilization, attachments, and separation of commissioned officers of the ARNG.

	a.  Paragraph 4-3 (assignment policies) states the primary factor influencing an officer's assignment is the need of the ARNG.

	b.  Paragraph 4-3g (Grade) states that because the ARNG promotion system requires that all commissioned officers, unless specifically exempt, must be assigned to an authorized position, grade becomes a dominant factor in commissioned officer assignment.

	c.  Paragraph 4-3g(10) states there is no limit on assigning a commissioned officer to a position calling for a higher grade.  However, as a guideline, due to increased responsibility and authority, a commissioned officer should not be assigned to a position more than one grade higher than that of the officer, except in the most unusual circumstances.

52.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2–11 states that applicants do not have a right to a hearing 
before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DORs to MAJ and LTC should be adjusted; his MRD should be corrected; and his records should be considered by an SSB for promotion to COL.  He also requests a personal appearance hearing.

2.  With respect to the personal appearance hearing, his request was carefully considered; however, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and the independent 

evidence provided by the applicant is sufficient to render a fair and equitable decision.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

3.  With respect to his DOR to MAJ:

	a.  HRC-St. Louis notified him on 10 June 1996 that he had been selected for promotion to MAJ and the effective date of promotion would be the later of 30 January 1997; the date Federal recognition is extended in the higher grade; or the date following date Federal recognition is terminated in his current Reserve grade.

	b.  Subsequent to his selection for promotion, he was notified by the MAARNG that he was required to respond by 31 October 1996 with a decision to accept this promotion and continue to serve in the MAARNG, or accept this promotion and transfer to the USAR, or decline (delay) promotion for up to 3 years from the date of selection (5 April 1996), subject to approval by TAG. There is no indication that he made any selection.

	c.  On 1 December 1996, he was granted a voluntary transfer to another position in another unit.  On 26 February 1997, his immediate commander subsequently recommended him for promotion to MAJ and on 2 March 1997, his senior commander concurred.  TAG published the promotion order on 30 March 1997 and the NGB extended him Federal recognition on 16 April 1997.

	d.  By regulation, there is no limit on assigning a commissioned officer to a position calling for a higher grade.  In other words, just because TAG assigns an officer to a position of a higher grade it cannot automatically be presumed that this is an expression of the intent of the TAG to promote that officer.  The 
expression of the intent to promote is the State promotion order and the effective date of extension of Federal recognition which should be the day after the State effective date.

	e.  He was recommended for promotion by his immediate and senior commanders on 26 February and 2 March 1997, respectively; his promotion order was published by TAG on 30 March 1997; and Federal recognition was granted on 16 April 1997.  Contrary to his argument, these timelines appear to be reasonable and there does not appear to be a delay.

	f.  Nevertheless, it would be equitable to make his Federal recognition one day after the effective date of the State order, i.e. 31 March 1997.  Therefore, he 

is entitled to correction of his effective date and DOR to MAJ from 16 April 1997 to 31 March 1997.

4.  With respect to his DOR to LTC, since his original effective date and DOR to MAJ was 16 April 1997 and since he achieved the maximum years of service in 
the lower grade (7 years) on 16 April 2004, he was accordingly promoted on that date.  However, with an adjusted DOR to MAJ of 31 March 1997 as indicated above, it would also be equitable to adjust his DOR to LTC to 30 March 2004.  Therefore, he is entitled to correction of his DOR to LTC from 16 April 2004 to 30 March 2004 (7 years from his adjusted DOR to MAJ).

5.  With respect to his MRD:

	a.  The evidence of records shows he initially entered military service at the age of 22 on 23 May 1981 when he was appointed as a Reserve commissioned officer in the USAFR.  He was transferred to the USAFR IRR on 23 September 1982, where he remained until he was appointed as an Army officer.  This service counts as service towards his MRD.

	b.  His service in the USAFR, USAFR (IRR), USAR, ARNG, and AD from 23 May 1981 through 31 May 2009 was continuous, uninterrupted, and qualifies as creditable service.

	c.  By regulation, LTCs will be removed upon completion of 28 years of commissioned service, if under age 25 at initial appointment, and the actual removal date will be within 30 days after the date of completion of the maximum years of service.

	d.  He completed 28 years of commissioned service on 22 May 2009; his actual mandatory removal date was 22 June 2009; and his MRD has been 
properly established in his record as 31 May 2009 (i.e., for retirement purposes). There is neither an error nor an injustice.  Therefore, he is not entitled to correction of his MRD.

6.  With respect to consideration of his records by an SSB, the FY09 COL promotion board convened on 11 March 2009.  However, since his MRD was on 31 May 2009, he was within 90 days of removal from an active status; therefore, he was ineligible for promotion consideration by that board.  Even with his adjusted DORs to MAJ and LTC, he was still ineligible for consideration.  Promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error, which existed in the record at the time of consideration, which is not applicable in the applicant's case.  Therefore, he does not qualify for reconsideration for promotion by an SSB.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X___  ____X___  ____X___  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 partial relief.  As a result, the Board recommends that all state Army National Guard records and the Department of the Army records of the individual concerned be corrected by:

	a.  amending NGB Special Orders Number 74 AR, dated 16 April 1997, to show he was extended Federal recognition for the purpose of promotion to MAJ, effective 31 March 1997 instead of 16 April 1997;

	b.  amending NGB Special Orders Number 12 AR, dated 11 January 2005, to show that he was extended Federal recognition for the purpose of promotion to LTC, effective 11 January 2005 with a PED of 30 March 2004 instead of 15 April 2004; and

	c.  paying him any back pay and allowances due as a result of these corrections.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to promotion consideration to COL by an SSB.

3.  In regard to his request for reconsideration of his earlier request to adjust his MRD, 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 concerning his MRD are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20070008516, on 7 February 2008.




      __________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.

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