BOARD DATE:	  28 October 2010

		DOCKET NUMBER:  AR20100014403 


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:

* adjustment of his date of rank (DOR) to major (MAJ)/O-4
* adjustment of his DOR to lieutenant colonel (LTC)/O-5
* referral to a Special Selection Board (SSB) for consideration for promotion to colonel (COL)/O-6

2.  The applicant states he was recently notified that the Department of the Army (DA) had delayed the selection board for COL and he would not have the opportunity to appear before a COL selection board prior to his mandatory retirement date (MRD).  His Active Guard Reserve (AGR) retirement and personal career decisions had been predicated on either being promoted to COL or selected by the DA board.  With the delay in the selection board, he began reviewing his records and discussing the matter with the State Military Personnel Office.  He states he found errors in his record which, if corrected, should result in his consideration before a promotion board this year (2010) and next.  He identifies the following errors:

	a.  The order extending Federal recognition for his promotion to MAJ showed no indication of his effective DOR, which should have been recorded as 1 July 1997.

	b.  Because his DOR to MAJ was not annotated on the order announcing Federal recognition, he did not appear before the LTC selection board until 2005 and he was selected for promotion with an effective date of 18 January 2006.
	c.  Because of the error in his DOR for MAJ, his DOR for LTC is also incorrect and should be 30 June 2004.

3.  The applicant provides copies of documents recording his eligibility for and promotion to MAJ and LTC.  

CONSIDERATION OF EVIDENCE:

1.  The applicant requested adjustment of his DOR to MAJ to reflect 1 July 1997.  National Guard Bureau (NGB) Special Orders Number 14 AR, dated 19 January 1999, extended Federal Recognition to the applicant effective 19 January 1999 for the purpose of promotion to MAJ.  NGB Special Orders Number 177 AR, dated 10 June 2005, amended NGB Special Orders Number 14 AR to read "DOR 01 Jul 1997."  Therefore, this portion of the applicant's request will not be discussed further in these Proceedings.

2.  On 4 November 1982, the applicant enlisted in the Army National Guard (ARNG) of the United States and, on 2 June 1984, he was appointed as an officer in the Army of the United States.  From 4 June 1984 through the date of his application, he served as a commissioned officer in the Pennsylvania Army National Guard (PAARNG), with AGR service beginning on 1 April 1997.  His career includes service as an infantry and armor officer, company and battalion command, and various unit and State-level staff positions.

3.  The applicant was promoted to first lieutenant (1LT)/O-2, effective 22 May 1987, and to captain (CPT)/O-3, effective 2 July 1990.

4.  The applicant's record includes orders issued by The Adjutant General (TAG), Commonwealth of Pennsylvania, Department of Military and Veterans Affairs showing he was ordered to full-time National Guard duty in an AGR status beginning on 1 April 1997 and remained in that status through the date of his application.

5.  A memorandum, dated 6 June 1997, from the U.S. Total Army Personnel Command, St. Louis, MO, to the ARNG Personnel Center, Alexandria, VA, shows the applicant was selected for promotion to MAJ with an effective date of 1 July 1997, the date Federal recognition was extended in the higher grade, or the date Federal recognition was terminated in his current Reserve grade, whichever was later. 

6.  A memorandum, dated 14 December 2004, from the U.S. Army Human Resources Command, St. Louis, to the ARNG Personnel Center, Alexandria, 


shows the applicant was selected for promotion to LTC with an effective date of 18 January 2006, the date Federal recognition was extended in the higher grade, or the date Federal recognition was terminated in his current Reserve grade, whichever was later.

7.  NGB Special Orders Number 66 AR (Extract), dated 8 March 2006, shows Federal recognition in the rank of LTC was extended to the applicant effective the date of the orders.  The orders show his promotion eligibility date (PED) was
18 January 2006.  

8.  During the processing of this case, on 6 May 2010 an advisory opinion was obtained from the NGB.  The advisory official recommended partial approval of the applicant's request.  

	a.  The advisory official recommended disapproval of the portion of the application pertaining to correction of the applicant's DOR to MAJ to 1 July 1997.  The official noted that his DOR to MAJ was corrected by NGB Special Orders Number 177 AR (Extract) to reflect his maximum time in grade (TIG) as a CPT as required by Army Regulation 135-155 (Army National Guard and U.S. Army Reserve - Promotion of Commissioned Officers and Warrant Officers Other Than General Officers).

	b.  The official recommended approval of the portion of the application pertaining to correction of the applicant's DOR to LTC to 30 June 2004.  The official noted that his DOR to MAJ was corrected after his selection for promotion to LTC.  As a result, his DOR for LTC exceeds his maximum TIG for MAJ.

	c.  The official also recommended that, if the applicant's DOR to LTC is corrected, the applicant be considered by an SSB for promotion to COL.  Adjustment of his DOR to LTC would place him in the primary zone of consideration for the Fiscal Year (FY) 2009 ARNGUS COL Army Promotion List (APL) Mandatory Promotion Board.

	d.  The official also noted the PAARNG supports the recommendation.

9.  On 20 July 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.  He did not respond.

10.  Army Regulation 135-155, paragraph 4-21d, provides instructions for establishing the effective date of promotion for AGR officers.  AGR officers selected by a mandatory board will be promoted provided they are assigned/
attached to a position in the higher grade.  An AGR officer who is selected for promotion by a mandatory promotion board, but who is not assigned/attached to a position in the higher grade will be promoted on the date of assignment/
attachment to a higher graded position or the day after release from AGR status.  The date of rank will be the date the officer attained maximum TIG or the date on which assigned/attached to a position in the higher grade, whichever is earlier.

11.  Table 2-1 of Army Regulation 135-155 establishes TIG requirements for promotion of commissioned officers other than warrant officers.  The table shows that the maximum TIG for MAJ is 7 years.  The table also shows that the normal TIG for COL/O6 is 5 years of service in the rank of LTC.

12.  Army Regulation 135-155 further states promotion consideration or reconsideration by an SSB may only be based on erroneous non-consideration or material error which existed in the record at the time of consideration.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record supports the applicant's request for correction of his DOR to LTC.

2.  As an AGR officer, the applicant's DOR for LTC should be the date he attained maximum TIG in the rank of MAJ.  The applicant's DOR to MAJ was adjusted to 1 July 1997.  The applicant reached the maximum TIG for MAJ/O-4 on 30 June 2004.  Accordingly, he is entitled to correction of his record to show his DOR for LTC is 30 June 2004.

4.  With a corrected DOR for LTC, the applicant would have been eligible for consideration for promotion to COL/O-6 on 1 July 2009, the day after he reached 5 years TIG as an LTC.  Therefore, he is entitled to consideration by an SSB under the criteria for any applicable promotion boards that convened on or after
1 July 2009.

BOARD VOTE:

___x____  ___x_____  ____x___  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  changing his DOR and effective date of promotion to LTC to 30 June 2004, and by paying him any due pay and allowances as a result of this correction, and 

	b.  placing his record before a duly-constituted SSB for promotion consideration to COL under the criteria for any applicable promotion boards convened on or after 1 July 2009.

2.  If selected for promotion by the SSB and if otherwise eligible, his record should be corrected by establishing his COL promotion effective date and date of rank as if he had been originally selected under the earlier criteria identified by the SSB and by providing him all back pay and allowances due as a result.

3.  If he is not selected for promotion by the SSB, he should be so notified by the appropriate promotion officials.



      _________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)                                         AR20100014403



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ABCMR Record of Proceedings (cont)                                         AR20100014403



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