IN THE CASE OF:	  

		BOARD DATE:	  2 February 2010

		DOCKET NUMBER:  AR20100000678 


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, reconsideration of his earlier request for adjustment of his major (MAJ) date of rank (DOR) from 30 June 2006 to 31 March 2006.

2.  The applicant states, in effect, he was assigned to an authorized MAJ position prior to, during, and after his selection for promotion to MAJ by the March 2006 promotion board.

3.  The applicant provides the following documents in support of his request for reconsideration:  electronic mail (e-mail) messages, dated 6 June 2006 and 4 July 2006; DA Form 4935-R (Request for Unit Vacancy Fill), dated 31 January 2006; DA Form 2464 (U.S. Army Reserve (USAR) Unit Vacancy Promotion Recommendation), dated 31 January 2006; Unit Manning Report (UMR), dated 21 January 2006; DA Forms 2B (Personnel Qualification Record (PQR)), dated 22 March 2006 and 9 June 2006; unit officer rating scheme, dated 26 April 2006; DA Form 67-9 (Officer Evaluation Report (OER)) for the period 21 March 2006 through 1 July 2006; mobilization orders with amendment; assumption of command memorandum, dated 21 July 2006; and DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090004780 on 29 December 2009.

2.  During its original review of the case, the Board determined there was insufficient evidence to show the applicant was assigned to an authorized MAJ position earlier than 30 June 2006, which was the effective date of his promotion.

3.  The applicant now provides as new evidence a DA Form 4935, dated 31 January 2006, which shows the Brigade Adjutant S-1 position for the 4th Brigade, 98th Division (Institutional Training), an authorized MAJ position, became vacant on 22 January 2006 and that the applicant was assigned to that vacant position.  He also provides a UMR for the 4th Brigade, 98th Division (Institutional Training), dated 21 January 2006, which shows him assigned to and slotted in the Brigade Adjutant/S-1 MAJ position and a PQR, dated 22 March 2006, which also shows him slotted in this position.

4.  The applicant's record shows he was selected for promotion to major by the 2006 Position Vacancy Board that was approved on 31 March 2006.

5.  The applicant's official military personnel file (OMPF) contains a DA Form 2-1 (Personnel Qualification Record) which shows he was assigned as the Brigade Adjutant/S-1 of the 4th Brigade, 98th Division (Institutional Training), Hartford, Connecticut, from 3 February 2001 through 17 July 2006, until assuming command of the 806th Adjutant General (AG) Postal Company, Fort McCoy, Wisconsin, effective 18 July 2006.

6.  The applicant's OMPF contains a senior rater option OER covering the period from 21 March 2006 through 1 July 2006 which evaluated the applicant on his performance as the Brigade Adjutant/S-1 for the 4th Brigade, 98th Division (Institutional Training).

7.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officer) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the Army National Guard of the United States and of commissioned and warrant officers of the USAR.  Paragraph 4-21 contains guidance on promotion effective dates and states, in pertinent part, that promotion to fill USAR position vacancies will be effective no earlier than the approval date of the board, the date of Senate confirmation (if required), or the date the officer is assigned to the position, whichever is later.  If not occupying the position, assignment of selectees to position vacancies will take place immediately on announcement of the results of the board.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his MAJ DOR should be adjusted from 30 June 2006 to 31 March 2006 was carefully considered and found to have merit.

2.  By regulation, the effective date of promotion of officers selected by a Position Vacancy Board will be no later than approval date of the board, the date of Senate confirmation if required, or the date the officer is assigned to the position.

3.  The evidence of record confirms the applicant was selected for promotion to MAJ by a Position Vacancy Board that was approved on 31 March 2006 and that he was ultimately promoted effective 30 June 2006 based on his assignment to an authorized MAJ position on that date.

4.  The record and independent evidence provided by the applicant confirm he was assigned to an authorized MAJ position on 22 January 2006 as evidenced by a DA Form 2464-R, DA Form 4935-R, and UMR provided by the applicant.  A senior rater option OER on file confirms he was evaluated in that authorized MAJ position for the period 21 March 2006 through 1 July 2006.  Finally, a 
DA Form 2-1 shows he was assigned to and served in that position until he assumed command of the 806th AG Postal Company, also an authorized MAJ position, on 18 July 2006.

5.  In view of the overwhelming documentation provided by the applicant, which is corroborated by records and documents on file in the applicant's OMPF, it appears clear he was assigned and serving in an authorized MAJ position on the date the Position Vacancy Board that selected him for promotion to MAJ was approved.  Therefore, it would be appropriate and serve the interest of justice and equity to grant the requested relief by adjusting the applicant's MAJ promotion effective date and DOR to 31 March 2006 and by providing him any back pay and allowances due as a result.

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 amendment of the ABCMR's decision in Docket Number AR20090004780, dated 29 December 2009.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adjusting his MAJ promotion effective date and DOR to 31 March 2006 and by providing him any back pay and allowances due as a result.



      ____________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)                                         AR20100000678



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ABCMR Record of Proceedings (cont)                                         AR20100000678



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