BOARD DATE:	  1 July 2010

		DOCKET NUMBER:  AR20100011498 


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 the date he was extended Federal recognition for promotion to major (MAJ) (3 February 2010) be backdated by approximately
106 days.

2.  The applicant states he was promoted to MAJ by the Georgia Army National Guard (GAARNG) on 28 July 2009.  However, due to errors made by the GAARNG and lack of communication between the State and the National Guard Bureau (NGB) during the Federal recognition process, he did not receive his promotion until 3 February 2010.  Ordinarily, Federal recognition process takes approximately 90 days from the date of State promotion.  This was validated in a previous decision rendered by the Board on 21 April 2009, pertaining to another officer.  He adds that in his case and through no fault of his, a total of 196 days passed between State promotion and Federal recognition.

3.  The applicant provides the following documents:

* a self-authored timeline
* a copy of Orders 222-724, dated 10 August 2009
* a copy of Orders 303-940, dated 30 October 2009
* a copy of NGB Special Orders Number 24 AR, dated 9 February 2010
* a copy of his promotion memorandum, dated 12 February 2010
* a copy of an Army Board for Correction of Military Records (ABCMR) Record of Proceedings, dated 21 April 2009


CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was appointed as a second lieutenant in the Regular Army and he executed a DA Form 71 (Oath of Office - Military Personnel) on 31 May 1997.  He served in various staff and leadership positions and attained the rank of captain (CPT) on 1 December 2000.

2.  He was honorably released from active duty on 30 May 2002 in the rank of CPT and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his Reserve obligation.

3.  His records also show he was appointed as a CPT in the GAARNG and he executed an NGB Form 337 (Oaths of Office) on 24 July 2008.  He was assigned to the Joint Forces Headquarters, GAARNG, and he subsequently completed the Transportation Captains Career Course in March 2009.

4.  On 10 August 2009, GAARNG published Orders 222-724 promoting him to MAJ effective 28 July 2009.

5.  On 9 February 2010, the NGB published Special Orders Number 24 AR extending him Federal recognition for the purpose of promotion to MAJ, effective 3 February 2010.

6.  In the processing of this case, on 11 May 2010, an advisory opinion was obtained from the Chief, Personnel Division, NGB.  The advisory official recommended partial approval to adjust the applicant's promotion effective date and date of rank.  The advisory official recommended his effective date to MAJ be back dated 60 days to read 5 December 2009 with entitlement to back pay and allowances as a result of this adjustment.  Recommendation is based on documents provided by the applicant showing administrative delays between the State, NGB, and the State memorandum, dated 3 May 2010.  The advisory official further stated:

	a.  The applicant states that on 28 July 2009 he was promoted to MAJ by the GAARNG.  He further states that due to errors made by the GAARNG and lack of communication with NGB during the Federal recognition process, he did not receive Federal recognition orders until 9 February 2010.  Upon coordination with NGB Federal recognition section, the normal processing time for position vacancy promotions is 90 to 120 days.  GAARNG Orders 222-724, dated
10 August 2009, show the Soldier being promoted to MAJ with an effective date of 28 July 2009.  NGB Special Orders Number 24 AR, dated 9 February 2010, show he was Federally recognized as a MAJ, effective 3 February 2010.  Additionally, the applicant provided a time line of events which corresponds with the Federal recognition tracking system.

	b.  In accordance with the Reserve Officer Personnel Management Act (ROPMA), the effective date of promotion and date of rank for an officer who is promoted under the position vacancy promotion system take approximately 90 to 120 days to be approved by the Secretary of Defense.

7.  On 17 May 2010, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  In his rebuttal, dated 1 June 2010, the applicant states that there were 190 days between his State promotion and the date he was extended Federal recognition.  The normal processing time for Federal recognition, as stated in the advisory opinion, is 90 to 120 days.  The administrative delay causing the increase in time to process his Federal recognition was not his fault.  The 90-day average, as shown on the Board's previous decision, seems fair and equitable.  Therefore, his effective date and DOR should be adjusted by 100 days to 27 October 2009, which provides for 90 days between the date his State promoted him and the date he should have been granted Federal recognition.

8.  National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions) provides procedures for processing all applications for Federal recognition.  Chapter 8-1 states that the promotion of officers in the ARNG is a function of the State.  As in original appointments, a commissioned officer promoted by State authorities has a State status in the higher grade under which to function.  However, to be extended Federal recognition in the higher grade, the officer must have satisfied the requirements prescribed herein.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his effective date and date of rank to MAJ should be backdated by approximately 106 days.

2.  The evidence of record shows the applicant met the promotion requirements when orders were issued on 10 August 2009 by the State of Georgia promoting him to MAJ, effective 28 July 2009.  However, his Federal recognition was not processed until February 2010 with an effective date of 3 February 2010.  It is clear that the applicant's Federal recognition was delayed through no fault of his.

3.  Nevertheless, a unit vacancy within a State is a benefit, not an entitlement.  It is strictly within the discretion of the State Adjutant General and/or the NGB to grant that promotion based on strength, needs, and several other factors.  The 90-120 days timeline is not a regulatory guideline.  In the applicant's case, based on the recommendation of the NGB, the earliest date based on normal processing time for permanent Federal recognition is 5 December 2009.  Therefore, his records should be corrected as such. 

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:

	a.  amending NGB Special Orders Number 24 AR, dated 9 February 2010, to show that he was promoted and extended Federal recognition for the purpose of promotion to the rank of MAJ, effective and with a date of rank of 5 December 2009; and

	b.  paying any back pay and allowances due as a result of this correction.

2.  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 effective date and DOR to a date any earlier than 5 December 2009.



      ________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)                                         AR20100011498



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ABCMR Record of Proceedings (cont)                                         AR20100011498



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