IN THE CASE OF:
BOARD DATE: 03 June 2010
DOCKET NUMBER: AR20100009473
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 date of rank to major and lieutenant colonel (LTC) be corrected to the date he attained maximum time in grade or the date he was assigned to a position in the next higher grade.
2. The applicant states he was improperly promoted on the date he was assigned to a controlled grade in the state.
3. The applicant provides excerpts from his military records.
CONSIDERATION OF EVIDENCE:
1. The applicant's military records show that while serving in the Army National Guard (ARNG), he was promoted to the rank of captain on 21 February 1990.
2. On 6 June 1997, the Total Army Personnel Command published orders promoting the applicant to major effective 20 February 1998 or the date Federal recognition was extended in the higher grade or the date following the date Federal recognition is terminated in his current grade.
3. On 15 July 1997, the applicant was ordered to Full-Time National Guard Duty (FTNGD) in the Active Guard Reserve (AGR) Program for 3 years as a captain to fill a battalion S-1 (Personnel Officer) vacancy, a captain's position.
4. On 26 May 1999, the applicant was afforded Federal Recognition in the rank of major.
5. On 15 July 2000, the applicant was ordered to FTNGD as a major to fill a training officer's vacancy, a captain's position.
6. On 1 April 2003, the applicant was ordered to FTNGD as a major to fill an operations officer's vacancy, a major's position.
7. On 11 May 2006, the applicant was promoted to LTC.
8. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) dated 1 September 1994, in effect at the time, paragraph 4-19, effective date, states that USAR unit officers who are selected for promotion by a mandatory board will be promoted on their promotion eligibility date provided they are assigned to a position vacancy in the higher grade. If not assigned to a position in the higher grade, the officer may opt to transfer to a non-unit status (USAR Control Group) to accept the promotion. Section IV of this regulation provides for officers to decline promotions for a period of time to retain unit membership if they are not assigned to a position of the higher grade. This regulation did not have a paragraph 4-21d.
9. In the processing of this case an advisory opinion was obtained from the Chief, Personnel Division, National Guard Bureau (NGB). In this opinion it was recommended that the applicant's request be granted. It was explained that Army Regulation 135-155, paragraph 4-21d states "AGR officers selected by a mandatory board will be promoted provided they are assigned/attached to a position in the higher grade. An AGR officer who is selected for promotion by a mandatory promotion board, but who is not assigned/attached to a position in the higher grade will be promoted on the date of assignment/attachment to a higher graded position or the day after release from AGR status. The date of rank will be the date the officer attained maximum TIG or the date on which assigned/attached to a position in the higher grade, whichever is earlier." The applicant was provided a copy of the advisory opinion and opted not to add any additional comments in his behalf.
DISCUSSION AND CONCLUSIONS:
1. The applicant does not state that he was in a higher graded position prior to his promotion to either major or LTC. The applicant believes that he should have been promoted at his maximum TIG for both promotions.
2. In this regard, Army Regulations 135-155 is clear that an AGR officer cannot be promoted while in an AGR status until the officer occupies a higher graded position.
3. It would appear that the NGB's advisory opinion was based on the provision of Army Regulation 135-155 which provides for the promotion of AGR officers who are released from the AGR program. That provision does not apply in this case since the applicant has never left the AGR program. In addition, it is noted that the regulation cited by the NGB was not in effect when the applicant was promoted to major.
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) AR20100009473
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
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