IN THE CASE OF:
BOARD DATE: 31 March 2011
DOCKET NUMBER: AR20100015827
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) as a lieutenant colonel (LTC) from 16 October 2009 to 15 March 2009.
2. The applicant states he was selected for promotion to LTC by a Special Selection Board (SSB).
3. The applicant provides:
* a memorandum of promotion to LTC by an SSB, dated 2 July 2009
* a National Guard Bureau (NGB) memorandum of promotion to LTC, dated 16 November 2009
* Joint Forces Headquarters Indiana, Orders 295-1064, dated
21 October 2008, announcing the applicant's transfer of position, effective
1 November 2008
* several pages of the applicant's electronic personnel record
CONSIDERATION OF EVIDENCE:
1. The applicant, an Indiana Army National Guard (INARNG) officer, was not selected for promotion to LTC by the Fiscal Year (FY) 2007 and FY 2008 DA Mandatory Promotion Boards.
2. All those not selected for LTC by the FY 2008 board were reconsidered by an SSB and the applicant was selected by this board.
3. A 2 July 2009 Human Resources Command memorandum announced the applicant's selection for LTC. The memorandum also notified him that the earliest date he could be promoted would have been 16 December 2008 (the date the President approved the 2008 criteria board).
4. An NGB memorandum, dated 16 November 2009, announced the applicant's promotion to LTC in the Reserve of the Army for service in the ARNG. The DOR is listed as 16 October 2009.
5. During the processing of this case, on 7 March 2011, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB. The advisory official recommended adjusting the applicant's DOR to 31 December 2008. The advisory official stated that "the State's intention was to promote the applicant immediately upon selection by the board; he was transferred into a LTC position effective 1 November 2008." Had the applicant been recommended for selection by the FY 2008 DA board, the effective date of his promotion to LTC would have been 31 December 2008.
6. On 9 March 2011, 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. In response, the applicant concurred with the contents of the advisory opinion.
7. Title 10, U.S. Code, section 14502(e)(2) states an officer who is promoted to the next higher grade as the result of the recommendation of an SSB convened under this section shall, upon such promotion, have the same date of rank, the same effective date for the pay and allowances of that grade, and the same position on the reserve active-status list as the officer would have had if the officer had been recommended for promotion to that grade by the selection board which should have considered, or which did consider, the officer.
8. 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's contention that his DOR to LTC should be adjusted from
31 October 2009 to 15 March 2009 was carefully considered.
2. The applicant was recommended for promotion by an SSB using the criteria from the FY 2008 board. An officer who is selected by an SSB should have a DOR as if he were selected by the original selection board. Had he been recommended by the FY 2008 board he would have been promoted with a DOR of 31 December 2008.
3. The evidence of record shows he was assigned to an LTC position effective
1 November 2008. Since he was assigned to an appropriate position or vacancy in the higher grade, he was entitled to be promoted to the higher grade. Therefore, his records should be corrected by adjusting his DOR to LTC from 16 October 2009 to 31 December 2008 with entitlement to back pay and allowances.
4. Therefore, the applicant's records should be corrected as recommended below.
BOARD VOTE:
____X___ ____X___ ___X____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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 to show he was promoted to and granted Federal recognition as an LTC with an effective date and DOR of 31 December 2008.
2. As a result of the above correction, 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 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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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20100015827
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