IN THE CASE OF:	  

		BOARD DATE:	 25 January 2011 

		DOCKET NUMBER:  AR20100011856 


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 correction of the effective date for his promotion to colonel (COL)/O-6 from 21 October 2009 to 2 October 2008, with entitlement to all back pay and allowances.

2.  The applicant states his records were not submitted to the February 2008 Reserve Chaplain O-6 board.  He adds his records were ultimately sent to a DA Special Selection Board (SSB) which selected him for promotion to the grade of O-6.  He further states he was promoted to O-6 effective 21 October 2009.  He adds that in accordance with Title 10, U.S. Code, section 14502(e)(2) his effective date of promotion should have been the Senate confirmation date of the criteria year he was selected for, which was 2 October 2008.

3.  The applicant provides copies of:

* a web printout of Title 10, U.S. Code, section 14502 (Special selection boards: correction of errors)
* a National Guard Bureau (NGB), Arlington, VA, memorandum, subject Promotion as a Reserve Commissioned Officer of the Army, dated 21 October 2009, for promotion to COL
* a U.S. Army Human Resources Command, St. Louis, MO, memorandum, subject:  Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty, dated 21 September 2009


* a U.S. Army Human Resources Command, St. Louis, memorandum to the applicant, subject:  Promotion Consideration, dated 21 September 2009, marked as "Information Copy Only"
* NGB Special Orders Number 255, dated 21 October 2009
* a photocopy of a DD Form 149 (Application for Correction of Military Record), dated 27 September 2008
* a Headquarters, U.S. Army Reserve Command, Fort McPherson, GA, memorandum, subject:  Promotion as a Reserve Commissioned Officer of the Army, dated 5 March 2004, for promotion to lieutenant colonel (LTC)/O-5
* a DD Form 368 (Request for Conditional Release), dated 30 September 2007
* an NGB 337 (Oaths of Office), dated 30 September 2007
* Headquarters, 90th Regional Readiness Command, North Little Rock, AR, Orders 07-292-00002, dated 19 October 2007
* Military Personnel (MILPER) Message Number 07-308 (2008 Reserve Component Colonel Chaplain Corps Competitive Categories Promotion Selection Boards Zones of Consideration), issued on 8 November 2007
* extract of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers)

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was appointed as a Commissioned Officer of the U.S. Army Reserve in the rank of first lieutenant in the Chaplain Corps effective 16 January 1989.  He was promoted to lieutenant colonel effective 9 February 2004.

2.  He was transferred from a U.S. Army Reserve unit to an Oklahoma Army National Guard (OKARNG) unit effective 30 September 2007.

3.  The applicant provided a copy of a U.S. Army Human Resources Command, St. Louis, memorandum, subject: Promotion Consideration, dated 21 September 2009.  This memorandum which was identified as an "Information Copy Only" stated in paragraph 1 that the Department of the Army SSB which convened on 27 January 2009 considered him for promotion using the criteria established for the mandatory board which met in 2008.  The memorandum indicated he had been recommended for promotion and a promotion order would be forwarded to him with a date of rank of 8 February 2010, if he was in a qualified position.

4.  He provided a copy of a U.S. Army Human Resources Command, St. Louis, memorandum, subject:  Eligibility for Promotion as a Reserve Officer Not on


Active Duty, dated 21 September 2009.  Paragraph 1 of this memorandum stated the named officer (applicant) of the ARNG of the United States had been selected for promotion under the provisions of Title 10, U.S. Code, section 14502 by a board adjourning on 27 January 2009.  It further showed his eligibility date was 8 February 2010 and the grade was COL.  Paragraph 2 stated the effective date of the promotion would be either of the following dates:

	a.  8 February 2010;

	b.  date Federal recognition is extended in the higher grade; or

	c.  date following the date Federal recognition is terminated in current Reserve grade.

5.  Paragraph 3 of the above memorandum stated if the officer (applicant) accepted promotion and Federal recognition was not extended in the next higher grade, he would be transferred in his current grade to the U.S. Army Reserve on the day following the date of termination of Federal recognition.

6.  His  DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 25 October 2009 shows he served on active duty in support of Operation Iraqi Freedom during the period 19 August 2008 to 25 October 2009.

7.  An NGB memorandum, subject:  Promotion as a Reserve Commissioned Officer of the Army, through The Adjutant General, State of Oklahoma, for the (applicant), dated 21 October 2009, showed the applicant was promoted in the Reserve of the Army for service in the ARNG of the United States.  It further showed the Reserve of the Army promotion and authorization for pay and allowances in the higher grade were effective 21 October 2009.  Paragraph 3 of this memorandum stated if this promotion was a result of a recommendation by an SSB, the date of rank, effective date for pay and allowances and position on the reserve active-status list was the same as if he had been recommended by the selection board which did not recommend or consider him (Title 10, U.S. Code, section 14502(e)(2)).

8.  Orders 286-002, issued by the Office of the Adjutant General, Joint Force Headquarters, dated 13 October 2009, show he was promoted by the state to the rank of COL effective 13 October 2009 with a date of rank of 2 October 2008.  The additional instructions portion of this order stated he would not be paid or wear the insignia of the higher grade until Federal Recognition has been extended by the Chief, NGB.  The remarks portion of the order stated his promotion was a "mobilization" promotion without a position (valid higher grade position vacancy).
9.  NGB Special Orders Number 255 AR, dated 21 October 2009, show Federal recognition was extended to him for the rank of COL effective 21 October 2009.  There is no evidence in his records showing he was assigned to an authorized COL position in the OKARNG.

10.  NGB Special Orders Number 92 AR, dated 8 May 2010, show Federal recognition was withdrawn and the applicant was transferred to the U.S. Army Reserve effective 31 May 2010.

11.  In the processing of this case, on 2 November 2010, an advisory opinion was provided by the Chief, Personnel Policy Division, NGB.  The advisory official stated the applicant was requesting his promotion date to COL be amended to
2 October 2008, with applicable back pay and allowances.  The NGB recommended disapproval of the applicant's request.

12.  The advisory official indicated Army Regulation 135-155, section III, paragraph 4-15a stated in part, "…the effective date of promotion for commissioned officers (except commissioned warrant officers) may not precede the date on which the promotion memorandum is issued.  In addition, the officer must already be assigned/attached to a position in the next higher grade."

13.  The advisory official further stated the applicant was considered by the SSB on 21 October 2009 and he was selected for promotion to COL.  However, although he was selected for promotion, he was not promotable until he was assigned/attached to a position in the higher grade.  Therefore, even though he was selected under the 2008 criteria, he was not eligible for promotion until transferred into a COL position.  The advisory official stated he deployed on or about 27 January 2009 and he was promoted to COL pursuant to the provisions of NGB-ARH Memo #04-0025.

14.  The advisory official stated that upon the applicant's release from active duty, there was no available COL position for him in the State.  NGB-ARH Memo #04-0025, which clarifies the Policy to Promote Department of the Army Select Mobilized Officers at Maximum Time in Grade, states, "In the event the State either does not desire to promote the officer or does not have a vacant position at the higher grade against which to promote the officer, the officer will sign a statement acknowledging that he or she is being promoted due to reaching maximum time in grade and that if the officer does not occupy a position at the higher grade within 6 months after deployment the officer will be involuntarily transferred to the Individual Ready Reserve."  This reflects the provisions of Army Regulation 135-155, which requires officers promoted to occupy a position at the higher grade within 6 months of release from active duty or be transferred to the Individual Ready Reserve.
15.  The advisory official stated that based on the evidence provided, it appears the applicant was appropriately promoted effective 21 October 2009, is not eligible for an earlier promotion, and is not eligible for any back pay and allowances.  The advisory official further indicated the OKARNG and the NGB office responsible for chaplain policy for the ARNG at NGB concur with this advisory opinion.

16.  The advisory official provided an e-mail from the State which stated that there is only one COL/O-6 position in the State and that position was occupied.  Therefore, the applicant could not have been promoted to COL until he left the guard since he required a position vacancy in the grade in which selected to be promoted.

17.  The advisory official also provides an e-mail from the Deputy Personnel Chaplain, ARNG Readiness Center, who stated that chaplains can hold one rank over their slotted position up to LTC.  An LTC who is selected for promotion to COL must occupy a COL position in order to be promoted in the ARNG.  As such, the applicant was not eligible for promotion to COL until he transferred to a COL's vacancy.

18.  On 3 November 2010, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.

19.  On 15 November 2010, the applicant provided his rebuttal to the NGB advisory opinion.  In summary, he indicated he was mobilized and deployed on a Title 10 status from 19 August 2008 through 25 October 2009.  He contends the availability of a position was immaterial since he was mobilized on Title 10 at the time and that he should have been selected on or about 2 October 2008.  He stated that the Army Personnel Policy Guidance, paragraph 13-5(6) provided that officers who are members of the Chaplain Corps are excluded from this change in policy, and are promoted under the provision of Army Regulation 135-155 which allows for their promotion, to include promotion while mobilized, without occupying a vacant unit position in the higher grade.

20.  He states that after the SSB, his (State) promotion order number 286-002, dated 13 October 2009, provided for a date of rank of 2 October 2008.

21.  Army Regulation 135-155 states the officer must fill a vacancy in the unit in a higher grade to be promoted.


22.  Army Regulation 135-155 provides that selection boards for promotion to COL will convene at the discretion of the Secretary of the Army (SA).  They will consider ARNGUS and USAR officers, in all competitive categories for promotion to COL.  These boards will consider and recommend only those who are in an active status.  The SA:

* prescribes the minimum TIG for an officer for each competitive category
* requires the name of each officer with the prescribed TIG be placed on the appropriate competitive category list
* prescribes the maximum number of officers to be recommended for promotion from each competitive category

23.  In a memorandum for MILPO's, dated 1 September 2004, the NGB stated that the mobilization promotion policy applied to ARNG officers recommended for promotion to the grades of captain thru LTC who are mobilized under the provisions of Title 10, U.S. Code, sections 12301(a), 12302 and 12304.

DISCUSSION AND CONCLUSIONS:

1.  It appears the applicant was not eligible for promotion to colonel until 31 May 2010, the date he was transferred to the U.S. Army Reserve.

2.  The applicant was not covered under the mobilization promotion policy since that policy only affected officers selected for promotion up to the rank of LTC.  The applicant could not be promoted if he held an LTC position (one rank lower than the grade he was selected for) since the policy to allow the promotion of chaplains when they hold a position one grade lower than that which selected for promotion only applies to officers selected for promotion up to LTC.

3.  As such, not only is the applicant ineligible for the effective date of promotion to be backdated to 2 October 2008, he is not eligible for the effective date of promotion he currently has (21 October 2009).

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

5.  Although it appears that an administrative error was made concerning his promotion effective date to COL, it has long been an unwritten policy of the Board that an applicant will not be made worse off than when they applied to the Board.  For this reason, the Board will not take any action to affect the administrative change to correct the applicant's actual effective date to COL.
However, the applicant should be aware that these Proceedings will be properly filed in his Official Military Personnel File (OMPF).


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)                                         AR20100011856



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ABCMR Record of Proceedings (cont)                                         AR20100011856



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