IN THE CASE OF:	  

		BOARD DATE:	    29 April 2010

		DOCKET NUMBER:  AR20100008365 


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 change of his date of rank (DOR) to lieutenant colonel from 21 October 2009 to 14 January 2009.

2.  The applicant states he was selected for lieutenant colonel by the 2007 Lieutenant Colonel, Army Promotion List (APL), U.S. Army Reserve Components Board.  He states he was mobilized under Title 32 orders on 1 December 2008 and Title 10 orders on 11 February 2009 for Operation Iraqi Freedom.  He states he met the maximum time in grade (TIG) for promotion on 14 January 2009.  He states he should have been promoted under the guidelines of National Guard Bureau (NGB-ARH) guidance, dated 30 January 2004, to lieutenant colonel with a DOR of 14 January 2009.  He states his promotion documentation was forwarded by his unit in the September/October [2009] time frame.

3.  The applicant provides copies of a U.S. Army Human Resources Command (HRC), St. Louis, MO, memorandum, dated 28 December 2007, Subject: Promotion List for Lieutenant Colonel, Army Promotion List (APL), U.S. Army Reserve Components; his promotion memorandum; and his mobilization orders.

CONSIDERATION OF EVIDENCE:

1.  On 7 May 1988, the applicant was commissioned a second lieutenant in the North Carolina Army National Guard (NCARNG).  He had previously served 
4 years, 2 months, and 10 days of service in the NCARNG in an enlisted status.


2.  On 14 January 2002, the applicant was promoted to major.

3.  On 28 December 2007, the applicant was selected for promotion to lieutenant colonel by a Department of the Army (DA) Mandatory Selection Board that convened on 28 September 2007.

4.  On 23 January 2008, the applicant was approved for delay of his promotion.

5.  On 24 October 2008, the applicant was ordered to active duty in the rank of major under Title 32, U.S. Code (USC) for the period 1 December 2008 to         10 February 2009 for pre-mobilization training.

6.  On 27 November 2008, the applicant was ordered to active duty under Title 10, USC, in the rank of major effective 11 February 2009 for a period not to exceed 400 days for Operation Iraqi Freedom.

7.  On 19 February 2009, the applicant again voluntarily elected to request a delay of promotion to the rank of lieutenant colonel as a Reserve of the Army and Army National Guard officer.

8.  Department of Crime Control and Public Safety, Joint Force Headquarters, Raleigh, NC, Orders 292-848, dated 19 October 2009, promoted the applicant to lieutenant colonel, effective 19 October 2009, with a DOR of 19 October 2009.  These orders stated the officer was selected by a Reserve Component selection board and elected to accept promotion to the next higher grade.

9.  NGB memorandum, dated 21 October 2009, promoted the applicant to lieutenant colonel in the U.S. Army Reserve (USAR), effective 21 October 2009, with a DOR of 21 October 2009.

10.  NGB Special Orders Number 255 AR, dated 21 October 2009, extended the applicant Federal Recognition in the rank of lieutenant colonel, effective 
21 October 2009.

11.  In a memorandum to this Board from the applicant's unit Resource Manager, dated 30 November 2009, he states that under the provisions of NGB (ARH) memorandum, dated 24 January 2004, the applicant should have been promoted no later than 11 February 2009 when the unit started Title 10 mobilization.  The unit submitted his promotion documentation on or about September 2009, thus delaying his promotion.

12.  In an electronic mail (e-mail), dated 29 January 2010, a major from NGB stated persons who delay a promotion based on selection by a DA board may be promoted upon reaching maximum time in grade, if they were mobilized.  The major also stated that upon the end of the period of the authorized delay, or at any time during the period of delay, the officer may accept the promotion, which shall be effective on the date of acceptance.  Delays are administered in 1 year increments for a maximum of 3 years.

13.  In an e-mail, dated 29 January 2010, a major from NCARNG recommends approval of the applicant's request based on the 29 January 2010 e-mail from NGB.  The major stated the applicant requested immediate promotion and his administrative process to obtain Federal Recognition as a lieutenant colonel was delayed based on his mobilization and obtaining all documentation to process the Federal Recognition packet.

14.  In the processing of this case, an advisory opinion, dated 1 February 2010, was provided by the Chief, Personnel Division, NGB.  The applicant was provided a copy of this opinion and given 30 days to submit matters in rebuttal; however, the applicant has not responded.  The NGB recommended the applicant's DOR and effective date of promotion to lieutenant colonel be corrected to 11 February 2009, the date of his mobilization under the provisions of NGB-ARH memorandum #04-0025.  NGB stated that according to the memorandum officers mobilized under Title 10 USC who are on an approved mandatory selection board promotion list who reach their maximum time in grade (major - 7 years) will be promoted without regard to the existence of a vacancy unless that officer has voluntarily delayed or declined promotion.  

15.  A memorandum, dated 30 January 2004, from the NGB states mobilized officers who reach maximum time in grade and have neither delayed nor declined their promotion will be promoted whether or not assigned against a position of the higher grade.  This memorandum also states mobilized officers who are promoted because they have reached their maximum TIG (major - 7 years) and who are not in a position of the higher grade within six months after demobilization, will be transferred to the IRR (Individual Ready Reserve).

16.  A memorandum, dated 1 September 2004, from the Chief of Personnel Policy and Readiness Division, NGB, Subject: Clarification of Policy to Promote DA Select Mobilized Officers at Maximum Time in Grade (NGB-ARH memorandum #4-0025), states that ARNG officers recommended for promotion to the grades of captain through lieutenant colonel 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 time in grade (major - 7 years) will be promoted without regard to the existence of a vacancy unless that officer has voluntarily delayed or declined promotion.

17.  Army Regulation 135-155 (Army National Guard and U.S. Army Reserve, Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) states officers who are selected for promotion to the next higher grade may voluntarily request delay of the promotion for a period of 1 year, which may be extended in 1-year increments to a maximum of 3 years from the date on which the officer would otherwise be promoted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DOR to lieutenant colonel should be changed to 
14 January 2009, the date he met maximum TIG requirement for promotion.

2.  Upon his selection to lieutenant colonel the applicant was approved for a
1-year delay in promotion.

3.  When the applicant was mobilized on 11 February 2009 he was eligible to be promoted without regard to a position vacancy unless he voluntarily delayed or declined promotion.  Therefore, under the provisions of NGB-ARH memorandum, dated 30 January 2004, the applicant's earliest effective date and DOR would have been 11 February 2009.

4.  Both memoranda, dated 30 January 2004 and 1 September 2004, from the NGB stated that mobilized officers recommended for promotion to the grades of captain through lieutenant colonel may be promoted without regard to a position vacancy unless that officer has voluntarily delayed or decline promotion.

5.  Although the e-mail from the NCARNG states the applicant requested immediate promotion, the applicant requested a delay of promotion to the grade of lieutenant colonel on 19 February 2009, 8 days after he was mobilized.

6.  In view of the above, notwithstanding NGB's recommendation for approval, there are no provisions to change the applicant's DOR and effective date to lieutenant colonel to 11 February 2009 because he had not accepted the promotion.

7.  As stated in the e-mail from NGB an officer may accept the promotion anytime during the period of delay.  However, his DOR and effective date would be the date of acceptance.  Therefore, the applicant's DOR and effective date to 

lieutenant colonel cannot be earlier than 20 February 2009 because he had requested a delay in promotion on 19 February 2009.

8.  There is no evidence showing exactly when the applicant accepted his promotion to the rank of lieutenant colonel after having requested a delay.  Therefore, there is insufficient evidence to justify a change to his DOR and effective date to lieutenant colonel.

9.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

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)                                         AR20100008365



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)