IN THE CASE OF:	  

		BOARD DATE:	  14 December 2010

		DOCKET NUMBER:  AR20100012955 


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) as a major (MAJ) be adjusted from 14 December 2009 to 3 August 2009.

2.  The applicant states his DOR should be adjusted to reflect the date he was placed in a MAJ position on 3 August 2009.  He was selected for promotion to MAJ by the March 2009 Department of the Army (DA) Selection Board and was ultimately extended Federal recognition for this promotion effective 14 December 2009.  However, his promotion to captain (CPT) was previously erroneously delayed.  Had this delay not occurred, his promotion eligibility date (PED) to MAJ would have been earlier and his selection for promotion to MAJ would have also been earlier.  The delay in his promotion to CPT was addressed by the Army Board for Correction of Military Records (ABCMR) which granted him relief in an earlier decision by adjusting his DOR as CPT to 1 March 2002.

3.  The applicant provides:

* memorandum of promotion to MAJ
* National Guard Bureau (NGB) Special Orders 307 AR
* NGB Special Orders 64 AR (amendment)
* previous ABCMR decision
* State assignment orders
* eligibility for promotion to MAJ memorandum
* promotion consideration memorandum
* DA Form 1059 (Service School Academic Evaluation Report)

CONSIDERATION OF EVIDENCE:

1.  Having had prior service in the U.S. Navy, the applicant's records show he was appointed as a first lieutenant in the Tennessee Army National Guard (ARNG) and executed the oaths of office on 1 November 1999.  He was assigned to the 145th Medical Company (Air Ambulance), Knoxville, TN.

2.  On 26 March 2002, the U.S. Total Army Personnel Command, St. Louis, MO, [currently known as U.S. Army Human Resources Command (HRC-STL)] notified him by memorandum that he was considered for promotion to CPT by the November 2001 DA Reserve Components Selection Board (RCSB), but he was not selected.  His non-selection appeared to be related to non-completion of civilian or military education.

3.  On 17 April 2003, HRC-STL notified the applicant by letter he had been selected for promotion to CPT by the November 2002 DA RCSB and on 8 May 2003 the Tennessee ARNG notified him by memorandum of his options with respect to this promotion.  He could accept the promotion if he was in a promotable position, or involuntarily delay his promotion with continued assignment to the ARNG in his current grade, or separate from the ARNG and accept a promotion with assignment to the U.S. Army Reserve.

4.  It appears he was deployed at the time (he was on active duty from 21 January 2003 through 7 July 2003) and the Tennessee ARNG made an election on his behalf to delay his promotion until 26 November 2005 with a stipulation that his name would remain on the promotion list for 3 years from the date he would otherwise be promoted.

5.  His records show he attended and successfully completed the Aviation Officer Basic Course from 8 July 2003 through 20 August 2003.

6.  On 22 September 2003, HRC-STL notified him he had been selected for promotion to CPT by a special selection board (SSB) that adjourned on 1 March 2002 and authorized him promotion effective 1 March 2002.

7.  On 8 December 2003, Tennessee ARNG published Orders 342-196 promoting him to CPT effective 2 January 2004 and, on the same date, NGB issued him a promotion memorandum and also issued Special Orders Number 328 AR extending him Federal recognition for this promotion effective 2 January 2004.

8.  On 4 August 2004 subsequent to an inter-State transfer, he was appointed as a captain in the Colorado ARNG and executed the oaths of office on the same date.  He was assigned to the 2nd Battalion, 135th Aviation, Aurora, CO.

9.  On 23 November 2004, NGB published Special Orders Number 294 AR extending him Federal recognition for his transfer to the Colorado ARNG.

10.  On 17 March 2006, he was ordered to active duty in support of Operation Iraqi Freedom and subsequently served in Iraq from 27 August 2006 to 17 August 2007.  He was honorably released from active duty on 1 October 2007.

11.  On 8 August 2008, he petitioned the ABCMR for correction of his DOR to CPT from 2 January 2004 to 1 March 2002.  He contended that he was erroneously non-selected for promotion to CPT by the November 2001 RCSB due to lack of military education.  Based on this error, his records were considered by an SSB that adjourned on 2 April 2003 and selected him for promotion to CPT effective 1 March 2002.

12.  His records show he attended and successfully completed the Aviation Captains Career Reserve Course from 1 December 2008 to 14 December 2008.

13.  On 16 February 2009, the ABCMR granted him relief and recommended his records be corrected to show he was promoted to CPT with an effective date and DOR of 1 March 2002 with entitlement to back pay and allowances.  Accordingly, NGB published Special Orders Number 64 AR adjusting his effective date of promotion to CPT to 1 March 2002.

14.  On 30 July 2009, Colorado ARNG published Orders 211-001 releasing him from assignment to the 2nd Battalion, 135th Aviation, and further assigning him to a MAJ position within the 169th Fires Battalion, Aspen, CO, effective 4 August 2009.

15.  On 15 September 2009, a Federal Recognition Board was held by the Colorado ARNG to determine if the applicant was qualified to be awarded Federal recognition as a MAJ and promotion in a position at the higher grade.  The proceedings indicated the applicant was satisfactory in his physical qualifications, moral character, and general qualifications.

16.  On 17 September 2009, Colorado ARNG published Orders 260-029 promoting him to MAJ with an effective date and DOR of 15 September 2009.

17.  On 22 September 2009, his records were considered for promotion to MAJ by an SSB under the 2009 criteria.  He was selected for promotion to MAJ and was subsequently notified the earliest date he could be promoted would have been 26 June 2009 (the date Presidential approval of the 2009 criteria board).

18.  On 18 December 2009, NGB published Special Orders Number 307 AR extending him Federal recognition for promotion to MAJ with an effective date and DOR as 14 December 2009.

19.  An advisory opinion was received on 5 November 2010 in the processing of this case.  An official at NGB recommended approval of adjusting the applicant's DOR from 18 December 2009 to 3 August 2009.  The official stated the ABCMR's previous decision adjusted the applicant's DOR to CPT to 1 March 2002.  He would have met the maximum time in grade (TIG) on 1 March 2009 which would have placed him in the zone for consideration for promotion to MAJ. 
He would have been eligible for consideration by the March 2009 DA Selection Board.  He was transferred to a MAJ position in the Colorado ARNG on 3 August 2009.  He should have been promoted on the date he was assigned to that higher position.  He was provided with a copy of this advisory opinion but did not respond.

20.  Army Regulation 135-155 (Army National Guard and Army Reserve Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for the promotion of Reserve Component officers.  Paragraph 2-15b authorizes waivers for non-statutory military education requirements.  Table 2-1 provides the TIG requirements for promotion of commissioned officers.  It states that for promotion from CPT to MAJ, the minimum number of years in the lower grade is 4 years and the maximum number of years in the lower grade is 7 years.

21.  National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions) provides for Federal recognition of commissioned officers.  Chapter 8 covers promotion of commissioned officers other than general officers.  Paragraph 8-6c states promotion will be accomplished only when the officer is assigned to an appropriate Modified Table of Organization and Equipment or Table of Distribution and Allowances vacancy in the higher grade.  The officer must remain in the same vacancy in which he or she has been recommended for promotion until Federal recognition orders are published.




DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DOR to MAJ should be adjusted from 14 December 2009 to 3 August 2009.

2.  An earlier decision by the ABCMR granted the applicant relief and adjusted his DOR to CPT to 1 March 2002.  The maximum TIG for promotion consideration from CPT to MAJ is 7 years.  Having had his DOR adjusted, his PED for promotion to MAJ would have been 1 March 2009.  This is the date he should have been considered for promotion to MAJ.  He was instead selected for promotion to MAJ by a later board and ultimately extended Federal recognition for this promotion on 14 December 2009.

3.  The evidence of record shows he was assigned to a MAJ position in the Colorado ARNG on 3 August 2009.  Since he was assigned to an appropriate position or vacancy in the higher grade, he was entitled to be promoted to the higher grade on that date.  Therefore, his records should be corrected by adjusting his DOR to MAJ from 18 December 2009 to 3 August 2009 with entitlement to back pay and allowances.

BOARD VOTE:

____X____  ____X____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending NGB Special Orders Number 307 AR, dated 18 December 2009, to 

show he was extended Federal recognition in the grade of MAJ effective 3 August 2009 and restoring back pay and allowances as a result of this correction.



      ____________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)                                         AR20100012955



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ABCMR Record of Proceedings (cont)                                         AR20100012955



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