BOARD DATE:	  6 July 2010

		DOCKET NUMBER:  AR20100000450 


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 date of rank (DOR) and his effective date for promotion to major to show 17 January 2004.

2.  The applicant states that his DOR and effective date should be changed in accordance with (IAW) the Office of the Secretary Manpower and Reserve Affairs Policy Memorandum, Promotion of Mobilized Reserve Component Officers on the Reserve Active Status List, dated 17 December 2003; and Title 10, U.S. Code (USC), sections 1430(b) and 14316(d).  He further states he was promoted to major by a mandatory promotion board and attained the 7 years maximum time in grade (TIG) as a captain (CPT) on 16 January 2004.

3.  The applicant provides the following in support of his application:

* Department of the Army (DA) Office of the Secretary Manpower and Reserve Affairs Policy Memorandum, dated 17 December 2003
* DA Memorandum, Subject:  Eligibility for Promotion as a Reserve Officer Commissioned Officer not on Active Duty
* Promotion Sequence of Events, as of 14 July 2009

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 25 July 1988, the applicant was appointed as a second lieutenant (2LT), Aviation Branch, in the Ohio Army National Guard (ARNG).

3.  On 1 March 1994, by memorandum, the U.S. Army Human Resources Command - St. Louis, MO (HRC-STL), notified the applicant of his selection for promotion to CPT under the provisions of Army Regulation 135-155 by a Reserve Component Selection Board (RCSB) that adjourned on 17 December 1993, with a promotion eligibility date of 28 July 1994.  This memorandum also informed him that the effective date of promotion would be either of the following dates:

	a.  28 July 1994;  

	b.  date Federal recognition is extended in the higher grade; or   

	c.  date following the date Federal recognition is terminated in the current Reserve grade.

4.  On or about 26 October 1995, the applicant requested a delay of promotion to the grade of CPT in the Reserve of the Army for 3 years.  The applicant's request was approved with an effective period of 17 December 1993 through
17 December 1996.  He was subsequently promoted to CPT with an effective date of 15 January 1997.

5.  On 7 August 2003, by memorandum, HRC-STL notified the applicant of his selection for promotion to major under the provisions of Army Regulation 
135-155 by the 2004 RCSB that adjourned on 4 April 2003, with a promotion eligibility date of 14 January 2004.  This memorandum also informed him that the effective date of promotion would be either of the following dates:

	a.  14 January 2004;   

	b.  date Federal recognition is extended in the higher grade; or   

	c.  date following the date Federal recognition is terminated in the current grade. 

6.  The applicant requested a delay of promotion to major on 30 September 2003.  The request was approved with an effective period of 30 September 2003 through 13 January 2007.  

7.  On 15 December 2003, the applicant was ordered to active duty as a member of his Reserve unit in support of Operation Iraqi Freedom.  He served in Iraq from 17 February 2004 to 10 February 2005.  He was honorably released from active duty on 18 March 2005.

8.  On 21 July 2006, the applicant was promoted to major.

9.  An advisory opinion was obtained in the processing of this case on
9 December 2009.  The Chief, Personnel Division, National Guard Bureau, Arlington, VA, recommended that the applicant’s promotion effective date and DOR be adjusted to 17 January 2004 and that he be authorized all back pay and allowances.

10.  Memorandum, Office of the Assistant Secretary for Manpower and Reserve Affairs, dated 17 December 2003, states that USAR officers mobilized under the provisions of Title 10, USC sections 12301(a), 12302 and 12304 and who are on an approved mandatory selection board promotion list who reach their maximum TIG (first lieutenant = 5 years, CPT = 7 years, and major = 7 years) will be promoted without regard to a position vacancy unless that officer has voluntarily delayed or declined promotion.

11.  Personnel Policy Guidance 2004, ARNG Promotions, states a mobilized officer who is selected for promotion by a DA Mandatory promotion board and is on an approved promotion list shall (if not promoted sooner or removed from the promotion board by the President or declination) be promoted without regard to the existence of a vacancy, on the date on which the officer completes the maximum years of service in grade. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DOR and promotion effective date to major should be corrected to show 17 January 2004 was carefully considered and there is sufficient evidence to grant relief.

2.  The applicant was promoted to CPT effective 15 January 1997.  He was selected for promotion to MAJ by a 2003 mandatory selection board.  Upon request, the applicant was granted a delay in promotion for a 3-year period covering 30 September 2003 through 13 January 2007.  He deployed in support of Operation Iraqi Freedom from 15 December 2003 to 13 December 2005.  

3.  Personnel Policy Guidance, in effect at the time, provided that a mobilized officer who is selected for promotion by a DA Mandatory promotion board and is on an approved promotion list shall (if not promoted sooner or removed from the promotion board by the President or declination) be promoted without regard to the existence of a vacancy, on the date on which the officer completes the maximum years of service in grade..  

4.  Notwithstanding the advisory opinion which recommended his DOR be corrected to 17 January 2004, the applicant reached his maximum TIG date on 15 January 2004 while deployed; therefore, he is entitled to correction of his record to show his DOR and effective date to major as 15 January 2004.  

5.  In view of the facts, there is sufficient evidence to support correcting the applicant's DOR and effective date of promotion to MAJ to coincide with the date he reached his maximum TIG as a CPT.  The applicant's ARNG records and the applicant's Department of the Army records should be corrected.

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 ARNG records and Department of the Army records of the individual concerned be corrected as appropriate by:

   a.  correcting the applicant's DOR and promotion effective date to MAJ to show 15 January 2004; 
   
   b.  correcting his MAJ Federal Recognition date to 15 January 2004; and 

   c.  paying the applicant all back pay and allowances due as a result of 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)                                         AR20100000450



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)