IN THE CASE OF:	  

		BOARD DATE:	  16 December 2010

		DOCKET NUMBER:  AR20100013074 


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 his date of rank (DOR) for promotion to captain (CPT)/pay grade O-3 from 17 April 2007 to 15 August 2006.

2.  The applicant states approval of his application for Federal recognition for promotion to CPT was delayed through no fault of his own.

3.  The applicant provides copies of a memorandum and email message string.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed in the Army National Guard of the United States (ARNGUS) and extended Federal recognition as a second lieutenant/pay grade O-1 in the Iowa Army National Guard (IAARNG) effective 12 August 2002.

2.  He was promoted to first lieutenant/pay grade O-2 effective 12 August 2004.

3.  A National Guard Bureau (NGB) Form 89 (Proceedings of a Federal Recognition Examining Board) shows the applicant was found qualified for promotion to CPT.  On 19 October 2006, the board recommended that the applicant be granted Federal recognition in the rank of CPT.

4.  Headquarters, Iowa National Guard, Office of the Adjutant General, Camp Dodge, Johnston, Iowa, Orders 297-005, dated 24 October 2006, promoted the applicant to CPT (O-3) in the IAARNG effective and with a DOR of 20 October 2006.  The additional instructions of the orders show, "[y]ou are not entitled to federal pay in the higher grade until Federal recognition is extended by the National Guard Bureau."

5.  Headquarters, NGB, Washington, DC, Special Orders Number 93 AR, dated 19 April 2007, announced the extension of Federal recognition in the ARNGUS of the applicant's promotion to CPT effective 17 April 2007.

6.  An NGB, Arlington, Virginia, memorandum, dated 19 April 2007, Subject:  Promotion as a Reserve Commissioned Officer of the Army shows the applicant was promoted to CPT in the Reserve of the Army for service in the ARNGUS effective and with a DOR of 17 April 2007.

7.  In support of his application, the applicant provides the following documents:

   a.  Headquarters and Headquarters Company, 2nd Battalion, 34th Infantry Brigade Combat Team, Boone, Iowa, memorandum, dated 24 January 2010, Subject:  Change of Date of Rank Request [Pertaining to the Applicant], submitted by Lieutenant Colonel (LTC) Mark D. N____ that shows:

       (1)  LTC N____ was the battalion commander of the 334th Brigade Support Battalion, IAARNG, when the applicant was considered for promotion to CPT;

       (2)  the applicant was slotted in the company commander position of Bravo Company (an O-3 position), he was fully qualified for promotion, and he was recommended for promotion;

       (3)  the applicant's promotion packet was forwarded by the State to the Federal Recognition Board, but was missing some of the documentation; and

       (4)  the applicant's promotion was delayed approximately nine months due to no fault of the applicant.

       (5)  LTC N____ recommends the applicant's DOR to CPT be changed to 15 August 2006.

   b.  An email message string, dated from 2 November 2009 to 5 April 2010, Subject:  Date of Rank, in which the applicant explains the situation regarding his DOR to CPT and is advised by military personnel officials to apply to this Board.

8.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB, Arlington, Virginia.

   a.  The advisory official recommends approval of the applicant's request for correction of his DOR to CPT from 17 April 2007 to 23 January 2007 (vice
15 August 2006).  The advisory official notes:

       (1)  The applicant's Federal Recognition Examining Board was completed on 19 October 2006, he was found eligible for promotion to CPT, and he was promoted to CPT in the IAARNG effective and with a DOR of 20 October 2006.

       (2)  The applicant's promotion packet was submitted with several other promotion packets to the Federal Recognition Board, NGB, on 30 October 2006, and it was received on 2 November 2006.  Each of the other officers received a promotion effective date of 23 January 2007.

       (3)  The applicant's promotion packet was returned to the State due to missing documentation.  The Federal recognition of an officer's appointment to the next higher grade by the State cannot be accomplished by the NGB unless and until a complete promotion packet is received from the State.

   b.  Given the delay in the applicant's promotion was due to no fault of his own, the advisory official recommends partial relief and adjustment of the applicant's DOR to CPT to 23 January 2007.

9.  The applicant was provided a copy of the advisory opinion in order to have the opportunity to respond to its contents.  On 19 November 2010, the applicant requested that the Army Board for Correction of Military Records take into consideration the NGB recommendation and adjust his DOR to 23 January 2007.

10.  Title 10, U.S. Code, section 14038, paragraph (f), states the effective date of a promotion of a Reserve commissioned officer of the Army who is extended Federal recognition in the next higher grade in the Army National Guard under section 307 or 310 of Title 32 shall be the date on which such Federal recognition in that grade is so extended.  In addition, the Reserve Officer Personnel Management Act (ROPMA), section 1-2, provides that the effective date of promotion and DOR for an officer who is promoted under the position vacancy system will be the date the Chief, NGB, extends Federal recognition.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was promoted to CPT (O-3) in the ARNGUS effective and with a DOR of either
15 August 2006 or 23 January 2007 because he was eligible for promotion and his promotion packet was delayed through no fault of his own.

2.  The evidence of record shows the applicant was found qualified for promotion and he was recommended for promotion to CPT on 19 October 2006.

3.  There is no evidence the applicant was recommended for promotion to CPT prior to 19 October 2006.  Therefore, he is not entitled to correction of his records to show he was promoted to CPT on 15 August 2006.

4.  The evidence of record shows that Federal recognition of the applicant's promotion to CPT was delayed through no fault of the applicant.  The evidence of record also shows that other officers who were recommended for promotion at the very same time as the applicant were granted Federal recognition and promoted effective 23 January 2007.

5.  Therefore, in view of the foregoing and as a matter of equity, it would be appropriate to correct the applicant's records to show he was promoted to CPT (O-3) in the ARNGUS and IAARNG effective and with a DOR of 23 January 2007.

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.  showing he was promoted to the rank of CPT (O-3) effective and with a DOR of 23 January 2007, and

	b.  granting Federal recognition in the rank of CPT (O-3) effective and with a DOR of 23 January 2007.


2.  As a result of the above corrections, the Defense Finance and Accounting Service shall be notified of the Board's determination and to remit all back pay (i.e., pay and allowances, less any withholdings and/or deductions) that may be due as a result of the correction.

3.  The Board further determined that the evidence presented was 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 promotion to CPT effective and with a DOR of 15 August 2006.  



      _______ _   _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)                                         AR20100013074



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ABCMR Record of Proceedings (cont)                                         AR20100013074



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