IN THE CASE OF:	  

		BOARD DATE:	  5 August 2010

		DOCKET NUMBER:  AR20100009466 


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) to captain be changed to 
3 January 2000 instead of 4 November 2005.

2.  The applicant states his original DOR was 3 January 2000.  However, he was not considered by the Fiscal Year (FY) 2010 Major Department of the Army (DA) Reserve Component Selection Board due to the error in his DOR.

3.  The applicant provides copies of electronic mail between the National Guard Bureau (NGB) and the Tennessee Army National Guard (TNARNG).

CONSIDERATION OF EVIDENCE:

1.  The applicant had previously served in the U.S. Army Reserve (USAR) and the Mississippi Army National Guard.  On 20 October 1997, the applicant entered a period of active duty in the USAR.  He was promoted to captain with a DOR of 20 March 2001.  On 11 December 2001, the Army Board for Correction of Military Records corrected his DOR to captain to 18 April 2000.

2.  On 1 October 2004, the applicant was discharged from the USAR/Active Guard Reserve in the rank of captain with a DOR of 18 April 2000.  He had completed 6 years, 11 months, and 11 days of active service that was characterized as honorable.  He had previously served 1 year, 3 months, and 
19 days of active service and 19 years, 11 months, and 17 days of inactive service.

3.  On 17 September 2008, the applicant was commissioned a captain in the TNARNG with a DOR of 17 September 2008.  NGB Special Orders Number 323 AR, dated 11 December 2008, granted him Federal Recognition effective 
17 September 2008 for an initial appointment.

4.  The applicant's military records indicate he had no military status between the date of his discharge from the USAR, 1 October 2004, and the date of his appointment in the TNARNG, 17 September 2008.

5.  The applicant served a period of active service from 7 March 2009 to 16 April 2010.  his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was released from active service in the rank of captain with an effective DOR of 20 March 2001 (entered as 2001 03 20).

6.  The iPERMS (integrated Personnel Electronic Records Management System) shows the applicant's DOR for captain as 11 April 2005.

7.  In the processing of this case, an advisory opinion, dated 17 May 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, no response has been received from him.

8.  The NGB recommends that the applicant's DOR be adjusted to 4 April 2004 instead of 18 April 2000 (which is the date the applicant requests).  The NGB states he had 4 years, 5 months, and 14 days of creditable service in the grade of captain when he was discharged on 1 October 2004.  The applicant's DOR should have been adjusted upon his appointment in the TNARNG to reflect this service.

9.  Military Personnel Message Number 09-269, issued 10 November 2009, established the promotion zone for the FY 2010 Major DA Reserve Component Selection Board for consideration of all USAR and Army National Guard captains with a DOR between 1 September 2003 and 31 August 2004.

10.  Title 10, United States Code (USC) 10, Section 12206 states a reserve officer of the Army so appointed, may be placed on the reserve active-status list of that armed force in the grade equivalent to the permanent regular or reserve grade, and in the same competitive category, in which the person previously served satisfactorily on active duty or in an active status and may be credited for the purpose of determining DOR with service in grade equal to that held by that person when discharged or separated.

11.  Chapter 2 of Army Regulation 135-155 (Promotion of Commissioned Officers and warrant Officers Other Than General Officers) contains guidance on promotion eligibility and qualification requirements.  The time in grade requirement for promotion to major is a minimum of 4 years and a maximum of 
7 years.  

12.  Army Regulation 135-155 specified that promotion reconsiderations by a special selection board (SSB) may only be based on erroneous non-consideration or material error which existed in the record at the time of consideration.  Material error is of such a nature that in the judgment of the reviewing official, it caused an individual's non-selection by a promotion board and, had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted in that individual's recommendation for promotion.  The regulation also states that the boards are not required to divulge the proceedings or the reason for non-selection, except where an individual is not qualified due to non-completion of required military school.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DOR to captain should be 18 April 2000 and that the error in establishing his DOR precluded him from being considered for promotion to major by the FY 2010 Major DA Reserve Component Selection Board.

2.  The applicant had completed 4 years, 5 months, and 14 days of service as a captain when he was discharged on 1 October 2004.  He cannot receive credit for time in grade during the period he had no military status.  At the time of his appointment to captain in the TNARNG, on 17 September 2008, his time in grade from his period of prior active service should have been subtracted from his appointment date, thereby adjusting his DOR to 3 April 2004.  

3. Item 12i (Effective Date of Pay Grade) of the DD Form 214 the applicant was issued on 16 April 2010 should be corrected to show 2004 04 03 (2004 April 3) instead of 2001 03 20.

4.  Due to the error in computing the applicant's DOR upon appointment in the TNARNG, he was not considered by the FY 2010 Major DA Reserve Component Selection Board.  Therefore, it would be appropriate to place the applicant’s records before a Special Selection Board (SSB) for promotion consideration under the criteria used by the FY 2010 Major DA Reserve Component Selection Board.  Further, if he is selected for promotion by the SSB, his major promotion effective date and DOR should be established as if he had been originally selected, and he should be provided all back pay and allowances due as a result. If not selected, he should be so notified.

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 all Department of the Army records of the individual concerned be corrected by:

	a.  changing the applicant's DOR to captain to 3 April 2004;

	b.  amending NGB Special Orders Number 323 AR, dated 11 December 2008, to show he was granted Federal Recognition effective 17 September 2008 in the rank of captain with a DOR of 3 April 2004; and

	c.  changing item 12i of the applicant DD Form 214 with a separation date of 16 April 2010 to show 2004 04 03 instead of 2001 03 20.

2.  The Board also recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  submitting his records to an SSB for promotion consideration to the grade of major under the criteria of the FY 2010 Major DA Reserve Component Selection Board;

	b.  if selected for promotion to major by the SSB, by establishing his major promotion effective date and DOR as if he had been originally selected and by providing him all back pay and allowances due as a result; and
	
	c.  if not selected for promotion, he should be so notified.


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 to a date earlier than 3 April 2004.  




      _______ _   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)                                         AR20100009466



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ABCMR Record of Proceedings (cont)                                         AR20100009466



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