IN THE CASE OF:
BOARD DATE: 23 September 2010
DOCKET NUMBER: AR20100000119
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 that her date of rank (DOR) to colonel and Federal recognition orders be adjusted to show an effective date of 1 June 2004 and that she be awarded all back pay and allowances.
2. The applicant states she was Department of the Army (DA) selected for colonel and held a colonel position in Medical Command (MEDCOM).
3. The applicant provides the following in support of her application:
* New York Army National Guard (NYARNG) Orders 161-1023/
161-1024/161-1027, dated 9 June 2004
* U.S. Army Human Resources Command, St. Louis, Missouri, memorandum, dated 31 March 2005, subject: Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty
* National Guard Bureau (NGB) Special Orders Number 141 AR, dated 4 May 2005
* NGB memorandum, dated 4 May 2005, subject: Promotion as a Reserve Commissioned Officer of the Army
CONSIDERATION OF EVIDENCE:
1. The applicant is currently serving as a colonel in the New York Army National Guard (NYARNG).
2. She was considered and selected for promotion to colonel by a special selection board (SSB) which convened on 9 February 2004 under the Fiscal Year (FY) 2001 criteria. The FY 01 board received Senate confirmation effective 29 November 2001. Her effective date of promotion to colonel could have been either of the following:
* 29 November 2001
* date Federal recognition is extended in the higher grade
* date following the date Federal recognition is terminated in the current Reserve grade
3. NYARNG Orders 161-1024, dated 9 June 2004, released her from assignment as the Branch Chief, NYARNG Element, Joint Force Headquarters, and transferred her to the position of Deputy Commander/Chief Nurse, MEDCOM, effective 1 June 2004. NYARNG Orders 161-1027, dated 9 June 2004, amended Orders 161-1024 to show she was assigned to a colonel's position.
4. On 14 April 2005, NYARNG issued Orders 109-1006 promoting her to colonel effective 19 April 2005. The additional instructions show the following:
a. Individual will not be paid in new grade until Federal recognition is confirmed.
b. The effective date of promotion in the ARNG will be the effective date on the permanent Federal recognition orders.
5. NGB extended Federal recognition and promotion to colonel effective 4 May 2005. NYARNG Orders 109-1006 show pen and ink changes correcting her effective and date of rank for promotion to colonel to read 4 May 2005.
6. In connection with the processing of this case an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB. The advisory official recommended disapproval of the request for a change to the effective date of her promotion and DOR for colonel. The official stated the applicant was not unit vacancy promoted to an O-6 billet, but was assigned to an O-6 billet effective 1 June 2004 while she was a DA non-select. The applicant was promoted by the State on 19 April 2005 by authority of NYARNG Orders 109-1006. The State orders in this case expressly provided that the officer would not be paid in the new grade until Federal recognition was confirmed. Federal recognition was extended on 4 May 2005.
7. A copy of the NGB advisory opinion was forwarded to the applicant for information and rebuttal. No response was received.
8. She provided copies of her colonel promotion orders, Federal recognition orders, and assignment orders which show she held the O-6 position effective 1 June 2004 prior to her promotion effective date of 4 May 2005.
9. National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions) provides procedures for processing applications for Federal recognition. Chapter 8 provides guidance on promotion for other than general officers and states the promotion of officers in the ARNG is a function of the State. It further states the effective date of promotion for an ARNG officer who is promoted in the State is the date the Chief, NGB extends Federal recognition.
10. Army Regulation 135-155 (Army National Guard and U.S. Army Reserve Promotion of Commissioned Officers and Warrant Officers other than General Officers), paragraph 4-10, specifies that officers selected for promotion to the grade of colonel will require Senate confirmation.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests that her DOR to colonel and Federal recognition orders be adjusted to show an effective date of 1 June 2004 and that she be awarded all back pay and allowances.
2. The record shows she was selected for promotion to colonel by an SSB on 9 February 2004. She was transferred to an O-6 position effective 1 June 2004. By regulation, promotion of ARNG officers is a function of the State and the effective date of those officers promoted in the State will be the date the Chief, NGB, extends Federal recognition. Federal recognition was extended on 4 May 2005.
3. Although promotion of ARNG officers is a function of the State it is unclear as to why her promotion occurred approximately 11 months after she was placed in an O-6 position. The applicant did not provide, nor did the advisory opinion address, a reason for the delay in promotion. Lacking evidence to the contrary, it is presumed the NYARNG executed the promotion properly; therefore, she is not entitled to the requested relief.
4. In view of the foregoing, her request should be denied.
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) AR20100000119
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ABCMR Record of Proceedings (cont) AR20100000119
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