IN THE CASE OF:	  

		BOARD DATE:	  9 December 2010

		DOCKET NUMBER:  AR20100014266 


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 military records to show his date of rank (DOR) for captain, pay grade O-3, as 9 October 2008.

2.  The applicant states he was erroneously denied promotion to captain by the Federal Recognition Board (FRB) on 9 October 2008.  He contends that:

	a.  he was fully qualified for promotion and was assigned in an O-3 position.  He was recommended by a colonel, pay grade O-6 and he had excellent Officer Evaluation Reports (OER's);

	b.  he submitted a request for reconsideration and he was granted a new FRB on 14 May 2009.  The second FRB reviewed the same material as the original FRB and approved his promotion to captain.

	c.  the FRB could only consider information that should have been considered by the original FRB;

	d.  the Deputy Adjutant General said the original packet may have been missing an OER;

	e.  he was questioned during the original FRB about deployments, which indicate that the OER in question was most likely missing because it clearly stated he had been deployed;


	f.  he assumes his OER from 2007 was not seen by the original FRB;

	g.  because the regular FRB meets every month, he saw no need to request a special selection board (SSB); and

	h.  if his promotion was the result of an SSB, his DOR and effective date for pay and allowances and position on the Reserve active-status list would be the same as if he had been recommended by the original FRB.

3.  The applicant provides:

	a.  National Guard Bureau (NGB) Form 89 (Proceedings of a Federal Recognition Examining Board) dated 9 October 2008 [first page only];

	b.  NGB Form 89, dated 1 October 2008 [both first and second pages];

	c.  NGB Memorandum, dated 21 September 2009;

	d.  Special Orders Number 232 AR, NGB, dated 21 September 2009;

	e.  Memorandum written to the Adjutant General, California Army National Guard (ARNG), undated;

	f.  Orders 269-1000, California ARNG, dated 25 September 2008;

	g.  OER's, dated 13 April 2007 and 25 September 2008;

	h.  Personnel Policy Bulletin Number 08-10, California ARNG, dated 30 May 2008; and

	i.  email from the California ARNG to the applicant, dated 27 March 2009.

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was a captain/O-3 serving on active duty as a Reserve component officer.

2.  The applicant was promoted to first lieutenant with a DOR of 21 August 2006.





3.  NGB Form 89, dated 9 October 2008, first page only, shows that:

	a.  the applicant's military records were examined to determine his qualifications for promotion to captain, Military Intelligence;

	b.  the board member's included Robert M. _ _ _ _ (President), Eric B. _ _ _ _ (member), and Lisa _ _ _ _ (member);

	c.  his physical qualifications and moral character were satisfactory;

	d.  his general qualifications were not satisfactory;

	e.  he was assigned as a tactical intelligence officer; and

	f.  the applicant was found not to possess the necessary qualifications for early promotion to the next higher grade because his OER's did not clearly indicate a clear and consistent above average performance or call for promotion well ahead of his peers;

4.  In an undated memorandum, the applicant appealed the FRB decision to The Adjutant General, California ARNG:

	a.  He provided a copy of Order 269-1000, dated 25 September 2008, showing he was assigned to a captain, pay grade O-3 position as a tactical intelligence officer;

	b.  He provided copies of his OER's for the years 2006-2007 and for 
2007-2008 arguing that he was evaluated as "best qualified" and "must promote."  He quoted portions of the rater's and senior rater's comments showing support for his promotion;

	c.  He argued that his rater's comments clearly showed he was consistently above average and was recommended for promotion; and

	d.  He does not provide, nor does his available records contain, a copy of any response from his chain of command.

5.  NGB Form 89, dated 14 May 2009 shows:

	a.  the applicant appeared before the FRB for examination to determine his qualifications for promotion to captain, Military Intelligence;

	b.  the board member's included Robert M. _ _ _ _ (President), David B. _ _ _ (member), and Frank D. _ _ _ _ (member);

	c.  his physical qualifications, moral character, and general qualifications were satisfactory;

	d.  he was assigned as a tactical intelligence officer;

	e.  the applicant was found to possess the necessary qualifications for promotion to captain, Military Intelligence, and was so recommended for promotion; and

	f.  the FRB was completed and signed on 14 May 2009.

6.  A memorandum from NGB, dated 21 September 2009, to The Adjutant General, California ARNG, announced the promotion of the applicant to captain with a DOR and effective date of 16 September 2009.  It further stated that if this promotion was a result of a recommendation by an SSB, the DOR and effective date for pay and allowances and for position on the Reserve active-status list would be the same as if he had been recommended by the selection board which had not recommended or considered him.

7.  Special Orders Number 232 AR, NGB, dated 21 September 2009, announced the extension of Federal Recognition to the applicant as a captain, with an effective date of 16 September 2009.

8.  The Personnel Policy Bulletin Number 08-10, as provided by the applicant, has a portion of a paragraph highlighted, which states: "Requests for a special board must present a compelling need beyond mere convenience and must clearly articulate why submitting the packets to the next regularly scheduled board will cause undue hardship for the applicant."

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

	a.  the FRB that convened on 9 October 2008 did not recommend the applicant for promotion based on the criteria in NGR 600-100;

	b.  the FRB that convened on 14 May 2009 recommended the applicant for promotion to captain;

	c.  Federal recognition was extended to the applicant on 16 September 2009;

	d.  the applicant's request to back date his promotion to coincide with the first FRB should be denied; and

	e.  the California ARNG concurs with the NGB conclusions and recommendation not to change the applicant's DOR or effective date.

10.  In a letter, dated 5 October 2010, the applicant responded to the advisory opinion:

	a.  He argues that NGB based its disapproval on two pieces of irrelevant information that the effective date of the promotion is the date of the FRB and that the FRB denied his promotion on 9 October 2008;

	b.  He states he requested reconsideration by the FRB which was approved.  He contends that approval of his request is proof that a material defect or error existed with the original FRB causing his denial of promotion;

	c.  He states no new information was presented to the second FRB, which determined his packet was promotion worthy after all and consequently recommended him for promotion to captain; and

	d.  He states that Federal recognition is relative to the FRB.  Accordingly, he argues that the date of his Federal recognition should be changed to the date of the original and erroneous rejection.

11.  The Reserve Officer Promotion Management Act (ROPMA) guide, Section I, Part 1-2, states "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."  It is not the date of appointment into the position, nor is it the date of FRB action if either of those dates is an earlier date.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his military records should be corrected to show his DOR for captain/O-3 as 9 October 2008 because he was erroneously denied promotion to captain by the FRB on 9 October 2008.

2.  The available evidence clearly shows the applicant was considered and denied promotion by the FRB that convened on 9 October 2008 because his general qualifications were not considered to be satisfactory by that FRB.

3.  On 14 May 2009, a subsequent FRB convened and determined that the applicant was fully qualified for promotion and so recommended him for promotion.  While this FRB had the same president as the first FRB, the remaining voting members were both different.  There is no evidence showing that this FRB was restricted to reviewing the same record as would have, or should have been considered by the first FRB.

4.  The applicant's contention that the second FRB convened only because of his request for reconsideration is not sufficiently supported in the available evidence.  In fact, there is no available evidence showing what, if any, action was taken on his request for reconsideration.

5.  The applicant's contention that the second FRB was granted only because material error, i.e. a missing OER, resulted in an unfair determination, is not conclusively supported by the available evidence.  Furthermore, had there been such an error, a SSB should have been convened.

6.  In view of the above, the applicant's request should be denied.

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)                                         AR20100014266



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ABCMR Record of Proceedings (cont)                                         AR20100014266



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