IN THE CASE OF:	  

		BOARD DATE:	    10 June 2010

		DOCKET NUMBER:  AR20090017888 


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 show the effective date and date of rank (DOR) for his promotion to captain (CPT)/pay grade O-3 was
12 September 2008 and payment of all pay and allowances due as a result of this correction.  If this request is not approved, then he requests his DOR be back-dated to the date he assumed command (i.e., 23 February 2009).

2.  The applicant states the Board back-dated his first lieutenant (1LT) DOR to
12 September 2006 making him eligible for CPT on 12 September 2008.  

   a.  He states that prior to being promoted or assuming command, he held a battalion-level O-3 position on "active orders."  He adds that his transfer to the company commander position took two months, which resulted in the delay of his promotion packet because of the requirement for a paragraph and line number.
   
   b.  He states he assumed command of Company D, 3rd Battalion, 
144th Infantry, on 23 February 2009; however, he was not promoted until
16 September 2009.

   c.  He states it is unjust that he assumed the responsibility of a company commander without being promoted to CPT.  He also states it is unjust that the National Guard Bureau (NGB) requires the officer to first hold the position of O-3 before being promoted, despite being eligible for promotion.

3.  The applicant provides copies of his Federal promotion orders, assumption of command letter, and an email message.
CONSIDERATION OF EVIDENCE:

1.  The applicant had prior honorable service as a second lieutenant (O-1) in the U.S. Marine Corps from 20 December 2003 to 11 September 2006.

2.  NGB, Washington, DC, Special Orders Number 3 AR, dated 5 January 2007, as amended by NGB, Special Orders Number 67 AR, dated 8 April 2010, announced the extension of Federal recognition of the applicant's appointment in the Army National Guard (ARNG) as a 1LT (O-2) effective 12 September 2006.

3.  ARNG, Adjutant General's Department, Austin, TX, Orders 128-1016, dated
8 May 2009, reassigned the applicant to the duty position of Commander, Company D (paragraph/line number 301-01), 3rd Battalion (Mechanized),
144th Infantry, Palestine, TX, effective 1 April 2009.

4.  NGB, Washington, DC, Special Orders Number 233 AR, dated 21 September 2009, announced the extension of Federal recognition of the applicant's promotion in the ARNG as a CPT (O-3) effective 16 September 2009.

5.  In support of his application, the applicant provides the following documents:

	a.  Headquarters, 3rd Battalion, 144th Infantry Regiment, Fort Worth, TX, Memorandum For Record, dated 10 February 2009, that shows the applicant assumed authority as Commander, Company D, 3rd Battalion, 144th Infantry Regiment, Palestine, TX, effective 23 February 2009.

   b.  An email message, dated 18 February 2009, that shows the Senior Human Resource Noncommissioned Officer, 3rd Battalion, 144th Infantry, forwarded a request for transfer pertaining to the applicant.  A handwritten notation on the document shows "Actual transfer - 04022009 [i.e., 2 April 2009]."

6.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Division, NGB, Arlington, VA.  The advisory opinion recommends disapproval of the applicant's request for adjustment of his DOR for CPT to 12 September 2008.

	a.  The advisory official notes that the applicant was promoted to CPT below the zone of consideration and ahead of his peers.

   b.  The advisory official cites National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions), paragraph 8-2, 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.  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.

	c.  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 into 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.

7.  On 28 April 2010, the applicant was provided a copy of the advisory opinion in order to have the opportunity to respond to its contents.  On 11 May 2010, the applicant responded via email stating "I do not wish to submit a rebuttal as I accept the board's decision in this matter."

8.  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 his promotion to CPT (O-3) should be corrected to 12 September 2008 or 23 February 2009.  He adds he should receive back pay for all pay and allowances due as a result of the correction because he was eligible for promotion on 12 September 2008 and assigned to serve in a command position on 23 February 2009, but not promoted until 16 September 2009.

2.  A memorandum for record shows the applicant assumed authority as Commander, Company D, 3rd Battalion, 144th Infantry Regiment, Palestine, TX, effective 23 February 2009.  However, Texas ARNG orders show the applicant assumed command effective 1 April 2009.

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
16 September 2009.  Therefore, in view of all of the foregoing, the applicant is not entitled to correction of his records to show he was promoted to CPT with an effective date and DOR prior to 16 September 2009.

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)                                         AR20090017888



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ABCMR Record of Proceedings (cont)                                         AR20090017888



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