IN THE CASE OF:	  

		BOARD DATE:	  8 July 2010

		DOCKET NUMBER:  AR20090017894 


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 through his congressional representative, in effect, reconsideration of the Board's denial of his request to adjust to his date of rank (DOR) to captain and then subsequently promote him to major in the Pennsylvania Army National Guard (PAARNG.) 

2.  The applicant states, in effect, that he is currently serving on active duty as a member of a troop program unit with the PAARNG as a physician assistant in direct support of combat operations in Iraq.  Due to numerous personnel administrative errors he was denied an early promotion to captain based on a State "slot vacancy" known as a unit vacancy promotion.  Based on the delayed promotion to captain he has not been considered for early promotion to major based on the State unit vacancy promotion criteria.  The applicant provides the following sequence of events:

	a.  the initial error was made on 30 October 2000 when he was appointed a second lieutenant in PAARNG and Federal Recognition not granted due to PAARNG administrative oversight;

	b.  the Army Board for Correction of Military Records (ABCMR) corrected his record to show 2 years of constructive service credit for his Masters of Physicians Assistant Degree;



	c.  The ABCMR corrected his record to show his initial appointment and Federal Recognition were to first lieutenant on 30 October 2002, then directed his promotion file go before a special selection board (SSB) for consideration to captain;

	d.  promoted to captain with a DOR of 29 October 2005 based on selection by an SSB;   

	e.  Physician Assistant positions on his two assigned unit manning reports are captain's billets;

	f.  ABCMR Document Number AR20080008840 denied the applicant's request to adjust his DOR to captain from 29 October 2005 to 30 October 2002.  This adjustment would have met the minimum time in grade criteria of 2 years as a first lieutenant; 

	g.  both the State of Pennsylvania Adjutant General and the National Guard Bureau (NGB) support his contention that his DOR to captain should be            30 October 2002.  The Adjutant General also recommends that his file go before an SSB and NGB recommends he be promoted to major based on the unit vacancy promotion criteria; 

	h.  as a physician assistant he has invested significant volunteer hours in the performance of his duties;

	i.  he has excellent officer evaluation reports, passed the Army Physical Fitness Test and weapons qualification standards, and he exceeds the standards for early promotion by the PAARNG; and

	j.  with frustration, he has watched his peers be promoted ahead of him and based on the inefficiencies of the personnel system, he is questioning his commitment to remain in the Ready Reserve for 20 years.

3.  The applicant provides through his Congressional Representative a copy of ABCMR Proceedings, Docket Number AR20080008840, dated 29 January 2009, and the supporting documents.

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 ABCMR in Docket Number AR20080008840 on 29 January 2009.

2.  Special Orders Number 110 AR issued by NGB on 7 May 2007 corrected the applicant's initial appointment, rank and DOR from second lieutenant to first lieutenant, effective 30 October 2000.  This correction was based on an ABCMR decision in Docket Number AR20070001773, dated 5 April 2007.

3.  Orders 303-1011 issued by the PAARNG on 30 October 2003 show the applicant was in the 728th Medical Support Battalion on the unit manning document, paragraph 607, line 02.  These orders transferred him to the position of physician assistant, paragraph 108, line 02, Headquarters and Headquarters Troop (HHT), 2nd Battalion, 104th Calvary, effective 15 October 2003.  

4.  Orders 154-1011 issued by the PAARNG, on 2 June 2004, show the applicant's duty assignment on the unit's Modified Table of Organization & Equipment (MTOE) is paragraph 108, line 2.

5.  By electronic message, dated 7 February 2007, a staff member of the ABCMR was provided information from the PAARNG showing the following MTOE positions:  

	a.  728th Medical Support Battalion, paragraph 607, line 02, authorized the grade and rank of captain O-3, specialty 65D (Physician Assistant); and 
 
	b.  HHT, 2nd Battalion, 104th Calvary shows the position in paragraph 108, line 2, is for a captain in the grade of O-3, specialty 65D.

6.  An SSB selected the applicant for promotion to captain under the provisions of Title 10, sesction 14502 on 26 March 2008.  The eligibility for promotion memorandum shows the applicant's effective date of promotion to captain as 29 October 2005.

7.  As evidence to support his application, the applicant provided a letter authenticated by The Adjutant General of the PAARNG.  The letter recommends that the applicant be granted full relief by adjusting his DOR to captain based on the minimum State ARNG time in grade requirement of 2 years with an effective date of 30 October 2002.  The recommendation states "This officer would have been promoted under my authority with an effective date of 30 October 2002 and has met National Guard Bureau zones of consideration and regulatory guidance." 

8.  Upon the applicant's DOR to captain being adjusted based on full relief, The Adjutant General of the PAARNG recommends that the applicant's file be presented to an SSB for promotion consideration to major to bring him in sync with his cohort year of 30 October 2006.  The Adjutant General continues by stating the applicant is an accomplished officer who has distinguished himself throughout his career.  He is a critical personnel asset and he is scheduled to deploy to Iraq with the 2nd Battalion, 104th Cavalry as part of the 56th Stryker Brigade.  

9.  The Chief, Personnel Division, NGB provided an advisory opinion for ABCMR Proceedings AR20080008840, dated 29 January 2009.  The Chief, NGB recommended adjusting the applicant's DOR to captain from 29 October 2005 to 30 October 2003; that he be promoted to major effective 30 October 2007; and that he receive all back pay and allowances as a result of these corrections.  The recommendation is based on National Guard Regulation 600-100; Title 10, U.S. Code, section 12207; and the DA mandatory promotion board guidance, which reflects that all first lieutenants with a DOR of 31 March 2001 and back were seen by the 2003 selection board.

10.  The NGB, Chief, Personnel Division continued by stating that: 

   a.  in accordance with National Guard Regulation 600-100, chapter 8, paragraph 8-2(4)(b), the DOR and effective date of promotion of an ARNG commissioned officer who was selected by an SSB shall be the same date(s) the officer would have had if the officer had been recommended for promotion by the selection board which should have considered, or which did consider the officer (Title 10, U.S. Code, section 14502(e)(2)).

   b.  paragraph 8-4a provides an ARNG officer's years of service in the grade (time in grade) for purposes of promotion and Federal recognition will be computed in accordance with Title 10, U.S. Code, section 14006 and that such service is generally computed by adding all of the service that the officer has or is credited by the Secretary of the Army with having, in grade in the Army, on the Reserve active status list, or on the active duty list of the Army or at the discretion of the Secretary of the Army, any other armed force, while in an active status.

11.  References:

	a.  Commissioned officers of the ARNG are appointed and promoted by the States under Article 1, Section 8 of the U.S. Constitution. 

     b.  Title 10, U.S. Code section 1403 states that whenever the needs of the Army, Navy, Air Force, or Marine Corps require, the Secretary concerned shall convene a selection board to recommend for promotion to the next higher grade, under chapter 1405 of this title, officers on the reserve active-status list of that armed force in a permanent grade from first lieutenant through brigadier general or, in the case of the Navy Reserve, lieutenant (junior grade) through rear admiral (lower half).  A selection board convened under this subsection shall be known as a "promotion board."

	c.  Army Regulation 135-100 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) specifically states that an SSB will not (emphasis added) consider officers for below the zone promotion.  Special selection boards will be convened to reconsider officers who were either improperly omitted from consideration due to administrative error, or who were non-selected for mandatory promotions as a result of material error.  

	d.  National Guard Regulation 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions) prescribes policies concerning promotions and Federal recognition of ARNGUS officers within their State vacancy promotion systems.  Promotion of officers in the ARNG is a function of the State and provides a State status in the higher grade under which to function.  An officer may be promoted and extended Federal recognition in the higher grade prior to reaching the date of maximum time in grade provided they are otherwise qualified.  To be extended Federal recognition in the higher grade, and subsequent Reserve of the Army promotion following State promotion to fill a vacancy an ARNG commissioned officer must:

   (1)  be in and remain in an active status until Federal recognition in the next higher grade is extended;

   (2)  be medically fit in accordance with Army Regulation 40-501;

   (3)  meet height and weight standards prescribed in Army Regulation 
600-9;

   (4)  have completed the minimum years of time in grade (first lieutenant to captain is 2 years and from captain to major is 4 years);

   (5)  have completed the minimum military education requirements (first lieutenant to captain is officer basic course or equivalent and from captain to major is completion of the Captains Career Course or any officer advance course or equivalent);

   (6)  have completed the minimum civilian education requirements; and

   (7)  have passed the Army Physical Fitness Test within prescribed time frames.



DISCUSSION AND CONCLUSIONS:

1.  Based on a previous decision made by the ABCMR, a Federal SSB selected the applicant for promotion to captain under the provisions of Title 10, section 14502 on 26 March 2008 with an effective date of rank to captain of 29 October 2005.  This effective promotion date meets the maximum Federal time in grade criteria of 5 years for mandatory promotion consideration from first lieutenant to captain.

2.  The applicant's contention that his DOR to captain and Federal recognition date should be changed to 30 October 2002 based on a State unit vacancy position has merit.  The available evidence shows the applicant was in a captain's position on a State unit manning document.  Based on the State unit vacancy promotion criteria and National Guard regulatory guidance, The Adjutant General of the PAARNG states the applicant would have been promoted under her State authority to captain with an effective date of 30 October 2002. 

3.  Based on the available evidence the applicant is entitled to correction of his records to show his DOR to captain and Federal recognition as 30 October 2002.  Additionally, the applicant should be paid all back pay and allowances due as a result of this correction.

4.  The above corrections result in the applicant being eligible for promotion consideration by a previously held Department of the Army Mandatory Selection Board to major based on 7 years maximum time in grade from captain to major.  Therefore, his records should be placed before an appropriate SSB for promotion consideration to the rank of major. 

BOARD VOTE:

____X___  ___X____  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION






BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that the State Army National Guard records and the Department of the Army records of the individual concerned be corrected by:

	a.  correcting his captain's DOR and Federal recognition date to 30 October 2002;

	b.  paying him all back pay and allowances based on the above correction;

	c.  submitting his promotion file to an SSB for promotion consideration to the rank of major;

	d.  if selected for promotion to major further correct his records to show he was promoted on the effective date he would have been promoted if he had been selected by the mandatory promotion board; and

	e.  paying him all pay and allowances due based on the above correction.


      
      
      _______ _   _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)                                         AR20090017894



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ABCMR Record of Proceedings (cont)                                         AR20090017894



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