IN THE CASE OF:	  

		BOARD DATE:	  8 September 2010

		DOCKET NUMBER:  AR20100009013 


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 his Federal recognition date for lieutenant colonel (LTC) be adjusted from 5 August 2009 to 15 January 2009.

2.  The applicant states that an error occurred during the Army Promotion List (APL) Board.  He states it was discovered that due to an error in the memorandum of instruction, the promotion board failed to select enough LTC's.  The Secretary of the Army directed that a special selection board (SSB) be held to correct the error.  The SSB was to be conducted in February 2009, but it was pushed back to March 2009 and then included with the major (MAJ) APL Board which caused him and others not selected to wait an additional 130 days for the results.

3.  He contends the error and additional waiting period caused him to be placed behind his peer group and hinders his chance of making colonel due to his age 60 mandatory removal date catching up with him.  Correcting his Federal recognition date to 15 January 2009 will put him back in line with his peers.  He concludes that he takes his career seriously and has continued to advance his military and civilian education beyond the basic requirements.  His officer evaluation reports are continuously given high ratings and remarks and he firmly believes that had the board not made the error, he would have been selected the first time.

4.  The applicant provides a Public Affairs Plan and Federal recognition orders in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving as a member of the Tennessee Army National Guard (ARNG).

2.  He was promoted to the rank of MAJ/O-4 effective 25 February 2003.

3.  The Public Affairs Plan provided by the applicant states the Fiscal Year (FY) 2008 Army National Guard of the United States (ARNGUS) LTC, APL Board was held in September 2008.  Upon review of the board results, the Army discovered an administrative error led to an under selection of ARNGUS officers and that an SSB would be held to reconsider those eligible officers who may have been selected for promotion had the error not occurred.  This Public Affairs Plan further provides that the effective date for promotion for an officer selected by the FY 08 ARNGUS LTC, APL Board will be the later of:  (1) the approval date of the board or (2) the officer's date of assignment to a valid ARNG LTC position.  Officers selected by the SSB will have their date of rank (DOR) adjusted as if they had been originally selected by the FY 08 ARNGUS LTC, APL Board.

4.  On 5 August 2009, the National Guard Bureau (NGB) issued Special Orders Number 192 AR extending him Federal recognition in the grade of LTC effective 5 August 2009.

5.  Orders 301-802, dated 28 October 2009, issued by the Tennessee ARNG directed his reassignment from duty position Branch Chief to duty position Supply Management Division Chief.

6.  In connection with the processing of this case, an advisory opinion was obtained from the Chief, Personnel Division, NGB.  The NGB official states that according to Army Regulation 135-155 (Army National Guard and U.S. Army Reserve Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), the effective date of promotion will not be earlier than the approval date of the board, the date of Senate confirmation (if required), or the date the officer is assigned to a valid position.  This official further states that according to electronic mail from the Officer Personnel Manager for the applicant's state, he was promoted as soon as he was placed in a valid LTC position, was recommended by his command, and was selected by a Department of the Army (DA) SSB.  This official concluded that there is no evidence of any error in the processing of his promotion to LTC and recommended disapproval of his request.

7.  A copy of the advisory opinion was provided to the applicant.  He responded that his request is not about being promoted in accordance with Army Regulation 135-155 or that there was an error in the processing of his application for promotion.  His request is based on the error made by the DA board and he was advised by the Officer Personnel Manager for Tennessee to submit this application in order to correct the problem.  He further stated that prior to the release of the original board's results and in anticipation of his selection, he was selected to go into the Supply Management Division Chief position which is a valid LTC position and if the DA board had not made the administrative error which caused him not to be selected, he would have been assigned and promoted.  He added that the Public Affairs release concerning the FY 08 ARNGUS LTC, APL Board and its admittance to the error states that officers selected by the SSB will have their DOR adjusted as if they had been originally selected by the FY 08 ARNGUS LTC, APL board.

8.  Army Regulation 135-155, paragraph 4-21b, states that unit officers selected by a mandatory board will have a promotion date and effective date no earlier than the date the board is approved or the date of Senate confirmation (if required), provided they are assigned to a position in the higher grade.  When the board approval or Senate confirmation is before assignment to the position in the higher grade, the effective date and the date of promotion will be the date of assignment to the higher-graded position.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his Federal recognition date for LTC should be adjusted has been carefully considered.

2.  He was promoted when a vacant LTC position was identified and he was assigned to that position.  Therefore, absent evidence to show that he was assigned to a valid LTC position prior to his current DOR there appears to be no basis to grant his request.

3.  The applicant contends that a LTC vacancy existed prior to the FY 08 promotion board and that had he been selected by that board, he would have been assigned to that vacancy.  However, there is no available documentation supporting his contention.

4.  In view of the foregoing, there is no basis for granting the applicant's request.


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)                                         AR20100009013



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ABCMR Record of Proceedings (cont)                                         AR20100009013



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