BOARD DATE:	  21 October 2010

		DOCKET NUMBER:  AR20100008050 


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 his date of rank (DOR) for major be adjusted to 
1 October 2007.

2.  The applicant states:

* He has an Reserve Officers’ Training Corps (ROTC) sourced commission and was selected by the Reserve Corps Army Promotion List (APL) board in February 2007 for promotion
* He found a U.S. Army Reserve (USAR) unit that he was immediately promotable in and he submitted a DD Form 368 (Request for Conditional Release) to be transferred to that unit in August 2007
* The Texas Army National Guard (TXARNG) Adjutant General denied his transfer and moved him to an O-4 position on 1 October 2007 that he was not qualified for and could not be promoted in until he became Functional Area (FA) 30 qualified
* His promotion date was delayed until December 2008 due to completion of this school 
 
3.  The applicant provides:

* Memorandum of Eligibility for Promotion
* DD Form 368
* Request for Transfer to USAR
* Email, dated 23 July 2007
* Transfer orders
* Email, dated 7 September 2007
* DA Form 1059 (Service School Academic Evaluation Report)
* Promotion orders  

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed a second lieutenant in the USAR on 14 August 1994.  He was appointed a second lieutenant on 29 May 1996 in the TXARNG.  He was promoted to captain on 8 February 2001.  

2.  A promotion board that adjourned on 28 March 2007 selected the applicant for promotion to major.  The U.S. Army Human Resources Command – St. Louis promotion memorandum noted his effective date of promotion would be either 
7 February 2008, the date Federal recognition was extended in the higher grade, or the date following the date Federal recognition was terminated in his current Reserve grade.

3.  On 21 July 2007, the applicant requested a conditional release from the TXARNG to be transferred to the USAR in order to attain promotion to major.  According to the applicant, his transfer was denied by The Adjutant General (TAG). 

4.  The applicant provided a memorandum, dated 21 July 2007, wherein he requested transfer to the USAR effective as soon as possible.  He indicated he had been approved for promotion by the Reserve Component APL Major board that met in March 2007, that he was not currently in a position eligible for promotion in the TXARNG, and that he must switch to the USAR to avoid having to decline the promotion. 

5.  The applicant provided an email, dated 23 July 2007, pertaining to information for his transfer to the USAR in a major position.    

6.  Orders, dated 19 September 2007, show the applicant was released from Headquarters and Headquarters Company, 1st Battalion, 112th Armor in Wylie, Texas and transferred to Information Operations Officer, 101st Field Support Battalion in San Antonio, Texas effective 1 October 2007.  

7.  DA Form 1059 shows the applicant completed the FA 30 Qualification Course on 21 November 2008.

8.  TXARNG orders, dated 25 September 2008, show the applicant was promoted to major effective 25 September 2008 with a DOR of 8 February 2008. 

9.  Departments of the Army and the Air Force, National Guard Bureau (NGB), Special Orders Number 301 AR, dated 2 December 2008, show the applicant was granted Federal recognition for promotion to major effective 2 December 2008.   

10.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Personnel Policy Division, NGB.  That office recommends the applicant's promotion effective date and DOR be adjusted to 7 February 2008.  The opinion points:

* The applicant was selected for promotion to major where the effective date of his promotion could be 7 February 2008 or the date Federal recognition was extended
* On 21 July 2007 he requested a conditional release from the Army National Guard to be transferred to the USAR in order to attain promotion to major
* The applicant's request should have been granted in accordance with U.S. Code, Title 10, subtitle E, part III, chapter 1405, paragraph 14316(d)
* According to the applicant, his transfer was denied by the Adjutant General
* The applicant should have been transferred to the USAR
* The applicant would have been promoted to major when he reached his maximum time in grade if transferred to the USAR as per his 2007 request
* The maximum time in grade from captain to major is 7 years
* In accordance with Title 10, subtitle E, part III, chapter 1405, section 14304, the applicant's promotion effective date and DOR would be in accordance with the promotion memorandum where the effective date of the promotion could be no earlier than 7 February 2008      

11.  The advisory opinion also states the State of Texas does not concur with this recommendation.  According to their email, the TXARNG G1 never received the necessary documentation on the applicant and it is therefore unlikely the TAG denied his original transfer request to the USAR.  Department of the Army Pamphlet 600-3, chapter 39, paragraph 39-3a(1) states FA 30 experience as a captain is not a requirement for promotion to major but the experience may enhance selection of the Information Operations Career Field as a FA 30.  The regulation was updated in February 2010 and FA 30 falls under chapter 20.  Now paragraph 20-3 (c) states FA assignment experience as a captain is not required for promotion to major for 7-year designed captains.  Their recommendation is for the effective date of his promotion to major be 1 October 2007; this date coincides with his assignment to the vacant O4 slot.

12.  The advisory opinion further states in consultation with Officer Policy, further research showed that the above regulation is accurate.  Further guidance is provided in paragraph 40-3(a) of the same reference stating that after completion of the FA 30 qualification course, officers are initially qualified in their FA.  FA 30 experience was not a requirement for promotion to major; however, completion of the FA 30 qualification was a requirement.  In accordance with Title 32, section 307, to be eligible for Federal recognition as an officer of the National Guard, a person must have the qualifications prescribed by the Secretary concerned for the grade, branch, position, and type of unit or organization.  On 1 October 2007, the applicant was not qualified in his position of assignment.              

13.  On 20 September 2010, a copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  On 20 September 2010, the applicant responded and concurred with the NGB recommendation to adjust his DOR to February 2008 in accordance with the policies.  He also commented that the State was right in that his request for transfer never made it to the TAG.  He indicated it was stopped from what he understands in the "AG-Army's Office," denied there, and never made it any further up the chain of command.  A final copy was never sent back to either his original unit or himself.  

14.  Title 10, chapter 1405, paragraph 14304(b) (Eligibility for consideration for promotion; maximum years of service in grade) states an officer holding a permanent grade specified in the table in subsection (a) who is recommended for promotion to the next higher grade by a selection board the first time the officer is considered for promotion while in or above the promotion zone and who is placed on an approved promotion list established under section 14308(a) of this title shall (if not promoted sooner or removed from that list by the President or by reason of 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 specified in subsection (a).  

15.  Title 10, chapter 1405, paragraph 14316(d) (Transfer to Army Reserve or Air Force Reserve) states if on the date on which an officer of the Army National Guard of the United States who is on a promotion list as described in subsection (a) is to be promoted, the officer has not been promoted to fill a vacancy in the higher grade in the Army National Guard or the Air National Guard, the officer's Federal recognition in the officer's reserve grade shall be withdrawn and the officer shall be promoted and transferred to the Army Reserve or the Air Force Reserve as appropriate.



16.  Table 2-1 of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) states that the minimum time in grade as a captain for promotion to major is 4 years and the maximum time in grade is 7 years.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant was promoted to captain in the TXARNG on 8 February 2001.  

2.  On 28 March 2007, the applicant was selected for promotion to major and the U.S. Army Human Resources Command – St. Louis promotion memorandum noted his effective date of promotion would be either 7 February 2008, the date Federal recognition was extended in the higher grade, or the date following the date Federal recognition was terminated in his current Reserve grade.

3.  On 21 July 2007, the applicant requested a conditional release from the TXARNG to be transferred to the USAR in order to attain promotion to major.  It appears he would have been promoted to major when he met the time-in grade requirement (7 years) on 7 February 2008 if he had been transferred to the USAR per this request.  

4.  Since the applicant was denied an opportunity to transfer to a USAR unit which would have allowed him to be promoted to major, and per the recommendation from the NGB advisory opinion, it would be equitable to correct his military records to show his effective date of promotion to major is 7 February 2008 with a DOR of 7 February 2008.  It would also be equitable to show he was granted Federal Recognition for promotion to major effective 7 February 2008. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ____x___  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION





BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial 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 showing he was promoted to major with a DOR and effective date of 7 February 2008 and by amending Departments of the Army and the Air Force, NGB, Special Orders Number 301 AR, dated            2 December 2008, to show that he was granted Federal Recognition effective     7 February 2008 in the rank of major.

2.  The Board further recommends that the applicant be paid all back pay and allowances due as a result of this correction.

3.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to adjusting his DOR for major to 1 October 2007.  



      _______ _   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)                                         AR20100008050





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (co