IN THE CASE OF:	

		BOARD DATE:	  4 March 2010

		DOCKET NUMBER:  AR20090017738 


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, in effect, a branch transfer to the Air Defense (AD) Artillery effective June 2008 and that he be submitted to a unit vacancy promotion to captain. 

2.  The applicant states, in effect, that in June 2008 he completed the Reserve Component (RC) AD Artillery Transition Course and in March 2009 the Alaska Army National Guard (AKARNG) submitted paperwork for his transition to the AD Artillery Branch and a unit vacancy promotion to captain.  Those requests were denied and returned.  In 2009, the requests were again submitted and denied.  A branch transfer was not recognized until after he was locked into the DA mandatory board for promotion.  He also states that had his promotion packet been submitted on time (June 2008) and the State of Alaska not fought over whether or not the RC AD Artillery Transition Course was legitimate, the unit vacancy would have gone forward.

3.  In support of his application, the applicant provides copies of a DA Form 1059 (Service School Academic Evaluation Report) and his officer evaluation reports for the periods ending 31 December 2008 and 31 July 2009.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show he was appointed in the Idaho ARNG (IDARNG), as a second lieutenant, Field Artillery (FA) Branch, effective 
7 September 2003.  He completed the FA Officer Basic Course effective 14 July 2004 and was promoted to first lieutenant effective 7 September 2005.  He was appointed in the AKARNG, FA Branch, effective 21 March 2007.

2.  A DA Form 1059, dated 13 June 2008, shows the applicant completed the AD Artillery RC Transition Course effective 13 June 2008.

3.  On 2 July 2009, the AKARNG awarded the applicant the primary area of concentration (AOC) 14A (AD Artillery) with an effective date of 13 June 2009.  On 2 October 2009, the National Guard Bureau (NGB), Personnel Policy and Readiness Division (NGB-ARH), approved the applicant’s request for AOC 14A.  

4.  On 19 November 2009, the NGB published orders changing the applicant’s branch from FA to AD, with an effective date of 13 June 2009.  

5.  In an advisory opinion, dated 7 December 2009, the Chief, Personnel Division, Departments of the Army and the Air Force, NGB, reiterated the applicant's requests and statements.  The NGB official recommended disapproval of the applicant’s requests to be branch transferred to the AD Artillery AOC effective June 2008 and a unit vacancy promotion.  The NGB official stated that the applicant’s request for a branch transfer was approved by the NGB, NGB-ARH, on 2 October 2009.  Federal Recognition special order number 280 AR reflects branch transfer from FA to AD Artillery (14A) was effective 13 June 2009.  

6.  The NGB official also stated, in effect, the applicant was extended Federal Recognition and initially appointed in the IDARNG, completed the officer basic course in 2004, and promoted to first lieutenant on 7 September 2005.  He was transferred to the AKARNG and on 23 March 2007 he was placed in the Active Guard Reserve program in duty AOC 14.  He completed the AD Artillery RC Transition Course on 13 June 2008.

7.  The NGB official also stated that in accordance with National Guard Regulation 600-100 (Commissioned Officers Federal Recognition and Related Personnel Actions), chapter 6, a branch transfer will be accomplished with the authority of the Adjutant General, based on the recommendation of the State Officer Personnel Manager.  Branch transfer will be necessary and should be accomplished only when it is required to comply with assignment criteria and career progression.  Chapter 8 states that the promotion authority of officers in the ARNG is a function of the State Adjutant General as in original appointment.  However, to be extended Federal Recognition in the higher grade, the officer must have satisfied all requirements for promotion.  Promotions will be 
accomplished only when the officer is assigned to an appropriate MTOE (Modified Table or Organization & Equipment) or TDA (Table of Distribution and Allowances) vacancy in the higher grade in the unit.  According to the NGB, DA Boards section, the applicant’s record was forwarded to the fiscal year 2010 DA mandatory selection board, which adjourned on 13 November 2009.  The list is pending approval and a release date.   

8.  The advisory opinion was forwarded to the applicant for acknowledgement and/or rebuttal on 14 December 2009.  He did not respond.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an adjustment to his branch transfer date to June 2008 and a unit vacancy promotion to captain.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The evidence shows the applicant, as an AKARNG officer, was approved for a branch transfer by the NGB on 2 October 2009.  Federal recognition orders were published reflecting his branch transfer from FA to AD with an effective date of 13 June 2009.  While he completed the AD Artillery RC Transition Course in June 2008, he was not awarded the primary AOC 14A (AD Artillery) until 13 June 2009.  In accordance with pertinent regulations, a branch transfer should be accomplished only when it is required to comply with assignment criteria and career progression.  In this case, that date was 13 June 2009 and the applicant has not shown otherwise.  

3.  The applicant contends that the AKARNG did not process a 2009 packet promotion for captain by a unit vacancy promotion.  However, there is no evidence of record and the applicant has provided none to show he submitted a packet for a possible unit vacancy promotion and that a vacancy existed in 2009. He could not be considered or even promoted without the benefit of an authorized position vacancy for him to fill.  It is concluded that the applicant has not sufficiently shown that in 2009 he was prevented from equitable promotion consideration by a unit vacancy promotion.

4.  The applicant was considered for promotion to captain by the 2010 mandatory selection board that recessed on 13 November 2009.  The promotion results are pending approval and release.  The appropriate authority will notify him of the results of that board.

5.  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)                                         AR20090017738





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ABCMR Record of Proceedings (cont)                                         AR20090017738



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