BOARD DATE:	  March 9, 2010

		DOCKET NUMBER:  AR20090013763 


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 to adjust his date of rank for captain (CPT) from 12 June 2009 to 5 March 2009 or at a minimum, 29 May 2009.

2.  The applicant states, in effect, that his promotion to CPT was not processed in a timely manner.  He states on 10 February 2009, the Virginia Army National Guard (VAARNG) approved his application for an Active Guard Reserve (AGR) Program assignment at the National Guard Bureau (NGB).  On 5 March 2009, he was selected for promotion to the rank of CPT by the November 2008 Captain Reserve Components Selection Board (RCSB).

3.  The applicant states on 9 April 2009, the NGB notified the VAARNG that he would be slotted in a CPT position.  On 19 May 2009, the NGB published AGR orders assigning him to the NGB in a CPT position.  The applicant continues that on 29 May 2009, he was recommended for promotion in a CPT position by the NGB.  He was not promoted to CPT until 12 June 2009.  The applicant states that the VAARNG had more than enough time to prepare documents for his promotion to CPT and that he should have been promoted to CPT at a minimum on 29 May 2009, if not 5 March 2009. 

4.  The applicant provides:

	a.  DA Board Results  - 2009 (APL) Captain Board for 14 November 2008;


	b.  NGB Orders 139-4, Arlington, VA, dated 19 May 2009;

	c.  NGB memorandum, subject:  Recommendation for Promotion of [applicant's name), dated 20 May 2009; and

   d.  NGB memorandum, subject:  Recommendation for Promotion of Officer, dated 29 May 2009.

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior enlisted service in the VAARNG.  On 15 May 2002, he 
was appointed as a second lieutenant (2LT)/O-1 in the ARNG.  On 15 May 2004, he was promoted to the rank and pay grade of first lieutenant (1LT)/O-2.

2.  The applicant was selected for promotion by the November 2008 Captain RCSB.

3.  By memorandum, subject "Delay of Promotion as a Reserve Officer of the Army and Army National Guard Officer," dated 8 April 2009, the applicant elected to delay his promotion to CPT until 23 February 2012.

4.  NGB Orders 139-4, dated 19 May 2009, show that the applicant was ordered to active duty in an AGR status.  He was assigned to the NGB, Incentive Oversight Branch, with a reporting date of 1 June 2009.

5.  By memorandum from the Chief, Education, Incentive and Employment Division, NGB to the VAARNG, Officer Personnel Branch, dated 20 May 2009, the applicant was recommended for promotion to CPT.  He was assigned a paragraph and line number in a CPT position.

6.  VAARNG Orders 162-085, dated 11 June 2009, show that the applicant was promoted to the rank/grade of CPT/O-3 with an effective date of 11 June 2009.

7.  NGB Special Orders Number 146 AR, dated 12 June 2009, show that the applicant was extended Federal recognition for the purpose of promotion to CPT in the VAARNG, effective 12 June 2009.

8.  During the processing of this case, on 7 August 2009, an advisory opinion was obtained from the Chief of the Personnel Division, NGB.  The advisory official recommended disapproval of the applicant's request based on an email, dated 1 August 2009, from the VAARNG, Deputy G-1 on the timeline of events that transpired from 29 May 2009 through 12 June 2009, concerning the applicant's promotion.  The processing time reflects the applicant's promotion packet was expedited in order to promote him on time.

9.  The G-1 stated, in effect, regardless of the fact that the applicant submitted his promotion packet prior to being placed in a higher graded position he was not eligible for promotion until 1 June 2009.  Once moved into the position and all required documents were added to the packet, it was routed and approved through the Joint Forces Headquarters (JFHQ), and the completed promotion packet was submitted to NGB.  The timeline reflects:

	a.  29 May 2009 - NGB approved the applicant to go into a higher-graded position effective 1 June 2009.

	b.  1 June 2009 - the applicant was moved into the higher graded position.

	c.  2 June 2009 - Completed promotion packet routed and through JFHQ for approval.

	d.  11 June 2009 - promotion packet approved and routed to NGB for processing.

	e.  12 June 2009 - NGB extended Federal recognition to the rank of CPT for the applicant.

10.  The G-1 further stated that being DA-selected does not automatically mean an officer will be promoted to the next higher grade even if they are eligible for promotion.  The officer still has to be recommended for promotion by his chain of command and all documents in the promotion packet must be current prior to submission to NGB.  "To his credit, CPT L-- did take the initiative to ensure his promotion packet was submitted to JFHQ in time for his transfer in Jun 09 (although it was piece-mealed [sic] to us which is not the norm - we typically require a complete packet prior to our review but under the circumstances the individuals in officer actions worked with him and the unit(s))." 

11.  The applicant was furnished a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  On 14 August 2009, he responded by email.  He did not concur and submitted a rebuttal statement.  In his statement, the applicant stated, in effect, that as of 15 May 2009 the VAARNG was verbally notified of his approved AGR selection to a promotable position.  On the same day he sent an email notification.  The applicant states that on 19 May 2009 he was issued AGR orders with an effective date of 1 June 2009.  He emailed his AGR orders to State Headquarters on 20 May 2009.  On 28 May 2009, the applicant emailed his promotion packet along with his recommendation for promotion.  After several emails and phone calls, he received his promotion orders to CPT on 12 June 2009.  The applicant concludes that his State knew of his AGR tour since 19 May 2009 and promotable position on 1 June 2009.  His State could have begun the process of issuing his promotion orders on 19 May 2009, with a future effective date of 
29 May 2009 or 1 June 2009 at the latest.

12.  National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions) prescribes policies and procedures governing, in part, the appointment, Federal recognition, and separation of commissioned officers of the ARNG.  Chapter 8 states the promotion of officers in the ARNG is a function of the State.  A commissioned officer promoted by State authorities has a State status in the higher grade under which to function.  However, to be extended Federal recognition in the higher grade, the officer must have satisfied the requirements prescribed in this chapter.

13.  National Guard Regulation 600-100, paragraph 8-6, states wearing of insignia of the higher grade is not authorized until Federal recognition has been extended by the Chief, NGB.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to adjustment to his date of rank for CPT.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The advisory opinion correctly points out that the applicant's promotion packet was expeditiously processed.  The applicant submitted his promotion packet prior to being placed in a higher-graded position and he was not eligible for promotion until 1 June 2009.  On 2 June 2009, the completed promotion packet was routed through and approved at the JFHQ.  On 11 June 2009, the promotion packet was submitted to NGB.  On 12 June 2009, NGB promoted the applicant to CPT.  Therefore, in accordance with regulatory guidance, 12 June 2009 was the earliest date he could have been promoted to CPT.

3.  In view of the foregoing, there is no basis for granting the applicant's request.


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)                                         AR20090013763



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ABCMR Record of Proceedings (cont)                                         AR20090013763



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