IN THE CASE OF:	  

		BOARD DATE:	  12 January 2011

		DOCKET NUMBER:  AR20100016930 


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) to major (MAJ) be adjusted from 30 April 2007 to an appropriate date in December 2006.

2.  The applicant states he was eligible for promotion to MAJ as of 4 December 2006.  In accordance with Washington Army National Guard (WAARNG) guidance he should have been promoted to the rank of MAJ when eligible and in seniority order.  Due to what appears to be an administrative oversight, he was passed by on the promotion list until the error was noticed in the summer of 2007.  Had a Federal recognition packet been submitted timely, he should have been promoted shortly after 15 December 2006, the date the last captain (CPT) on the promotion list senior to him was promoted.

3.  The applicant provides:

* self-authored statement
* two pages of WAARNG Regulation 600-100
* four pages of email
* Letter from Department of the Army (DA), U.S. Army Human Resources Command, St. Louis, MO (HRC-STL)
* WAARNG memorandum of request for Army Board of Correction for Military Records (ABCMR)
* WAARNG memorandum for record
* National Guard Bureau (NGB) Special Orders 186 AR
* WAARNG promotion orders (corrected copy)
* two WAARNG assignment orders
* WAARNG memorandum of results of officer career management board
* HRC-STL memorandum of eligibility for promotion

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the ABCMR to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  Having had prior service, the applicant's records show he was appointed as a CPT in the WAARNG and executed the oath of office on 26 August 2001.  He was assigned to the Headquarters Detachment, Army Element, Joint Force, Camp Murray, Tacoma, WA. 

3.  On 30 June 2006, HRC-STL notified him by memorandum that he had been selected for promotion to MAJ by the March 2006 DA Reserve Components Selection Board.  His promotion eligibility date would be either 30 April 2007, or the date Federal recognition is extended in the higher grade, or the date following the date Federal recognition is terminated in the current Reserve Grade.

4.  On 26 July 2007, WAARNG published Orders 207-03 promoting him to the rank of MAJ with an effective date of 4 December 2006.

5.  On 2 August 2007, NGB issued Special Orders Number 186AR extending him Federal recognition for this promotion with an effective date of 30 April 2007.

6.  WAARNG memorandum, dated 16 March 2009, confirms WAARNG had at least one O-4 control grade available in fiscal year 2007 in which he could have been assigned.

7.  In a self-authored statement the applicant states, in part, that in December 2006 he was one of the most senior CPTs in the WAARNG on the promotion list to MAJ and one of the officers that had already been selected for promotion by a DA selection board.  There was an O-4 position and control grade available in December 2006 and because of his seniority his Federal recognition packet should have been sent to NGB on 4 December 2006.  This was the date when both the position and the grade became available.  If this had happened, he would have had a DOR in December of 2006.

8.  An advisory opinion was received on 18 June 2010 in the processing of this case.  An official at NGB recommended approval of adjusting the applicant's DOR from 30 April 2007 to 4 December 2006.  The official stated WAARNG Regulation 600-11, paragraph 4-8(c)(3), states the recorder will prepare a list of the officers evaluated, listed in sequence according to their date of rank.  The Adjutant General may authorize a promotion out of sequence when determined to be in the best interest of the WAARNG.  In December 2006 the applicant was one of the senior CPTs in the WAARNG for the promotion to MAJ.  There were four MAJ positions available and a control grade available and he was among the top four CPTs to be promoted to MAJ.  In addition, the official referenced WAARNG memorandum, dated 5 May 2010, wherein it states that in fairness to the officer they support the applicant's request.  He was provided with a copy of this advisory opinion but did not respond.

9.  National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions), paragraph 8-1, states the promotion of officers in the ARNG is a function of the State.  As in original appointments, a commissioned officer promoted by State authorities has a State status in the higher grade under which to function.  However, to be extended Federal recognition in the higher grade, the officer must have satisfied the requirements prescribed herein.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DOR to MAJ should be adjusted from 30 April 2007 to 4 December 2006.

2.  The evidence of record shows there was an available O-4 position and a control grade available in his unit to which he should have been assigned to on 4 December 2006.  On 26 July 2007, WAARNG published orders promoting him to MAJ with an effective date of 4 December 2006 and submitted his Federal recognition packet.

3.  Due to his Federal recognition packet being submitted by his unit in July 2007 instead of December 2006, he was promoted on 2 August 2007 with a DOR of 30 April 2007 instead of 4 December 2006.  Therefore, his records should be corrected by adjusting his DOR to MAJ from 30 April 2007 to 4 December 2006 with entitlement to back pay and allowance.



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 186 AR, dated 2 August 2007, to show he was extended Federal recognition in the grade of MAJ effective 4 December 2006 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)                                         AR20100016930





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ABCMR Record of Proceedings (cont)                                         AR20100016930



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