IN THE CASE OF:	  

		BOARD DATE:	  22 March 2011

		DOCKET NUMBER:  AR20100018388 


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 1 October 2003 to 20 June 2002 with all back pay and allowances due as a result of the correction and consideration for promotion to major (MAJ)/pay grade O-4 by a Special Selection Board (SSB) under the Fiscal Year (FY) 2009 promotion criteria.

2.  The applicant states he was promoted to first lieutenant (1LT)/pay grade O-2 in the Chemical Corps of the New York Army National Guard (NYARNG) with a DOR of 12 February 1999.  He was assigned to a CPT/O-3 position on 8 January 2002, he had the time in grade required for promotion, and he should have been promoted to CPT not later than 27 November 2002.

	a.  He was selected for promotion under the provisions of Army Regulation 135-155 (Army National Guard and U.S. Army Reserve – Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) by the board that adjourned on 27 November 2002.

	b.  His promotion packet was completed and forwarded to NYARNG on or about 10 April 2002.  On or about 15 April 2002, he was contacted by NYARNG officials about an upcoming mission.  He was already on active duty at the time and he asked if the mission would have an impact on his promotion.  He was told it would not affect his promotion status as it involved a lateral transfer.  He was then issued orders in support of Operation Noble Eagle.

	c.  On or about 1 June 2002, he inquired about his promotion.  He was told that because he had changed commands, his promotion packet required a recommendation from his current commander before it could be sent to the National Guard Bureau (NGB).

	d.  On 2 July 2002, his promotion packet was forwarded to NGB; however, NYARNG officials withdrew it on 9 July 2002.  The applicant was informed that there was only one CPT/O-3 position for the mobilization mission and he was not assigned to the position.  He informed NYARNG officials that the officer who had been assigned to the CPT/O-3 position had been relieved of his duties and was out-processing.  His promotion packet was immediately returned to NGB.

	e.  NYARNG officials contacted the officer who had been relieved of duties and stopped his out-processing.  However, that officer's mobilization orders were not amended or terminated and he was allowed to perform duty at the unit's armory for the rest of the mobilization mission.  As a result, once again, the applicant's promotion packet was withdrawn by NYARNG officials.

	f.  He was finally promoted to CPT on 1 October 2003.  He adds he has been encumbering a MAJ/O-4 position since 1 December 2006 and he was promoted to MAJ by the FY10 Promotion Selection Board effective 12 April 2010.

	g.  He concludes that NYARNG officials misinterpreted the governing regulatory guidance, which resulted in a delay of his promotion to CPT and also delayed his promotion to MAJ.

3.  The applicant provides copies of his promotion, assignment, and mobilization orders; promotion documents; a DA Form 67-9 (Officer Evaluation Report (OER)); and assignment history documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a commissioned officer in the Army National Guard of the United States (ARNGUS) in the Chemical Corps and extended Federal recognition (FEDREC) as a second lieutenant/pay grade O-1 in the NYARNG effective 23 January 1997.

2.  A review of the FY10 Major, Reserve Component, Selection Board Results shows the applicant was selected for promotion to MAJ.

3.  The applicant provides the following documents:

	a.  NGB memorandum, dated 12 February 1999, subject:  Promotion as a Reserve Commissioned Officer of the Army, that promoted the applicant to 1LT/O-2 effective 12 February 1999;

	b.  NYARNG:

		(1)  Orders 093-006, dated 3 April 2002, which transferred the applicant to Company B, 642nd Support Battalion, NYARNG, effective 8 January 2002.  He was assigned as the commander in area of concentration (AOC) 91B (in lieu of CPT) against paragraph/line 301/01;

		(2)  Orders 296-147, dated 23 October 2001 and Orders 018-173, dated 18 January 2002, which ordered the applicant to active duty for special work (ADSW) from 25 October 2001 through 17 February 2002 at John F. Kennedy/
LaGuardia Airport for the purpose of consequence management/airport security;

		(3)  Orders 333-324, dated 29 November 2001; Orders 014-400, dated 14 January 2002; Orders 016-293, dated 16 January 2002; Orders 073-393, dated 14 March 2002; Orders 084-687, dated 25 March 2002; and 
Orders 091-669, dated 1 April 2002, which ordered the applicant to ADSW from 18 February through 28 March 2002 at LaGuardia Airport for the purpose of airport security;

		(4)  Orders 093-278, dated 3 April 2002; Orders 122-715, dated 2 May 2002; and Orders 126-023, dated 6 May 2002, which ordered the applicant to active duty for training from 29 March through 3 May 2002 at John F. Kennedy Airport for the purpose of Transportation Security Administration;

		(5)  Orders 124-029, dated 4 May 2002, which transferred the applicant to the 1st Battalion, 258th Field Artillery (Forward), NYARNG, effective 3 May 2002.  He was assigned as a forward operations officer in AOC 01A (in lieu of CPT) against paragraph/line 101/01; and

		(6)  Orders 126-025, dated 6 May 2002, which ordered the applicant to active duty as a member of his unit on 4 May 2002 for a period not to exceed 365 days in support of Operation Noble Eagle;

	c.  U.S. Military Academy (USMA), memorandum, dated 6 June 2002, subject:  Assumption of Command, which shows MAJ B____ E. W____ assumed the position of Acting Commander, 1st Battalion, 1st Infantry, USMA, West Point, NY, effective 8 June through 16 June 2002;

	d.  USMA memorandum, dated 10 June 2002, subject:  Promotion of 1LT (Promotable) [Applicant], which shows MAJ B____ E. W____, Acting Commander, 1st Battalion, 1st Infantry, recommended the applicant for promotion to CPT.  It also shows the applicant had been attached to the command since 4 May 2002 in support of Operation Noble Eagle, that he was serving as Commander, Company B, 642nd Aviation Maintenance (Mobile), and that he met the time in grade requirements for promotion to CPT;

	e.  Headquarters, NYARNG, memorandum, dated 14 June 2002, subject:  Recommendation for Promotion of Commissioned Officer [Applicant], which shows the Director, Military Personnel, NYARNG, concurred with the recommendation for promotion.  He also requested the applicant's records be examined to determine qualification for FEDREC in the ARNGUS and promotion in the NYARNG, if recommended by the board;

	f.  NYARNG Orders 175-041, dated 24 June 2002, which promoted the applicant to CPT effective 20 June 2002 and show the effective date of promotion in the ARNGUS will be the effective date shown on the permanent FEDREC orders;

   g.  FEDREC Order Processing Report, dated 23 March 2010, pertaining to the applicant which shows his FEDREC packets were removed from processing on 9 July 2002 and 25 September 2002;

	h.  Total Army Personnel Command, St. Louis, MO, memorandum, dated 17 April 2003, subject:  Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty, which promoted the applicant to CPT effective and with a DOR of 27 November 2002;

	i.  OER covering the period 4 June 2002 through 22 April 2003 which shows the applicant served as the Commander (AOC 74A), Battery C, 1st Battalion, 258th Field Artillery, USMA, West Point, NY.  The applicant's rater evaluated his performance and potential as "Outstanding Performance, Must Promote."  The senior rater evaluated his promotion potential to the next higher grade as "Best Qualified."  She also commented, in pertinent part, "Outstanding performance by a superb battery commander.  Promote him immediately";

	j.  NYARNG:

		(1)  Orders 260-1030, dated 17 September 2003, which transferred the applicant to Headquarters and Headquarters Company, Aviation Brigade, 42nd Infantry Division, NYARNG, effective 8 June 2003.  The orders show he was assigned as a chemical officer in AOC 74B against paragraph/line 104/03 and that he was previously assigned as commander; and

		(2)  Orders 261-1000, dated 18 September 2003, which promoted the applicant to CPT/O-3 effective 17 September 2003;

	k.  NGB memorandum, dated 1 October 2003, subject:  Promotion as a Reserve Commissioned Officer of the Army, which promoted the applicant to CPT effective and with a DOR of 1 October 2003;

	l.  NGB Special Orders Number 251 AR, dated 1 October 2003, which announced FEDREC of the applicant's promotion to CPT effective 1 October 2003;

	m.  NGB memorandum, dated 4 May 2010, subject:  Promotion as a Reserve Commissioned Officer of the Army, which promoted the applicant to MAJ effective and with a DOR of 12 April 2010;

	n.  NGB Special Orders Number 86 AR, dated 4 May 2010, which announced FEDREC of the applicant's promotion to MAJ effective 12 April 2010;

	o.  NGB Orders 278-12, dated 5 October 2006 (Corrected Copy) and Orders 317-2, dated 13 November 2006, which ordered the applicant to active duty in Active Guard Reserve (AGR) status for a period of 3 years from 1 December 2006 through 30 November 2009.  He was assigned as a program manager in AOC 74A against paragraph/line 152/03, NYARNG, with duty U.S. Army National Guard Readiness Center, VA; and

	p.  NGB Orders 40-28, dated 9 February 2009, which rescinded the unexecuted portion of Orders 278-12, dated 5 October 2006, and ordered the applicant to active duty in an AGR status for a period of 3 years from 1 December 2008 through 30 November 2011.  He was assigned as a budget officer in AOC 74A against paragraph/line 103/02, NYARNG, with duty U.S. Army National Guard Readiness Center, Arlington, VA.

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

	a.  The advisory official recommends partial approval of the applicant's request for correction of his records.  Specifically, adjustment of the effective date of FEDREC for promotion to CPT from 1 October 2003 to 8 June 2003, but he does not recommend consideration for promotion to MAJ by an SSB.  The advisory official notes:

		(1)  The company commander position to which the applicant was assigned on 8 January 2002 was for a maintenance company.  However, it could not be found on the U.S. Army Force Management System Web (FMSWeb) to verify.

		(a)  The applicant served on active duty with the unit from 3 May 2002 through 7 June 2003; however, there were no CPT/O-3 AOC 01A or 74B positions within the 1st Battalion, 258th Field Artillery, in 2002-2003.

		(b)  It appears the applicant was not assigned to a valid CPT/O-3 position (01A or 74B) until 8 June 2003.

		(2)  The applicant was promoted to CPT on 24 June 2002 [effective 20 June 2002] and NYARNG officials confirm that Orders 175-041, dated 24 June 2002, are valid.  They add the orders should have been revoked; however, they were not.

		(3)  There is no evidence NYARNG conducted a Unit Vacancy Promotion Board approving the applicant's promotion from 1LT to CPT prior to his FEDREC promotion orders being published on 1 October 2003.

	b.  NYARNG officials do not concur with the NGB recommendation to grant the applicant relief with respect to his DOR for CPT.  They maintain the State promotion orders were deficient because a FEDREC Board never convened to confirm the applicant's unit vacancy promotion.  Thus, the administrative oversight of not revoking Orders 175-041 should not be reason enough to adjust the applicant's DOR for CPT.  The State asserts the FEDREC promotion orders with an effective date of 1 October 2003 should remain in effect and govern the applicant's DOR to CPT.

	c.  The NGB advisory official concludes that failure to convene a FEDREC Board until late 2003 is an injustice and the applicant's record should be corrected to remedy this.  He adds that the applicant was subsequently promoted to MAJ, negating the need to consider his request for consideration for promotion to MAJ by an SSB.

5.  The applicant was provided a copy of the advisory opinion.  On 11 February 2011, the applicant requested that the Army Board for Correction of Military Records consider additional evidence and adjust his DOR to 20 June 2002.

	a.  He states the printout he provides from the FMSWeb for the unit to which he was transferred on 8 January 2002 shows paragraph/line 301/01 corresponds to the commander (O-3 AOC 91B) position.

	b.  He states the printout he provides from the FMSWeb for the unit to which he was transferred on 3 May 2002 shows paragraph/line 101/01 corresponds to a commander (O-5 AOC 13A) position.  He adds that his NYARNG orders are apparently in error with respect to the line number.  However, he points out that all of the other officer positions (i.e., line numbers) in this paragraph are CPT/O-3 and above and the orders assigned him to the unit in AOC 01A.

	c.  He adds, in effect, he disagrees with the NGB advisory opinion that states, "[i]n the interim, the Soldier was promoted to MAJ, negating the need to consider the second part of his request [i.e., consideration by an SSB under the FY09 promotion criteria]."  He acknowledges that he was promoted to MAJ on 12 April 2010.  However, if he had been promoted to CPT on 20 June 2002, he would have been eligible for consideration for promotion by the FY09 Promotion Selection Board.

	d.  He also provides a copy of Headquarters, 4th Infantry Division and Fort Carson, memorandum, dated 10 February 2011, subject:  Letter on Behalf of [Applicant], which shows Lieutenant Colonel J____ R. R____, Commander [former], 1st Battalion, 1st Infantry Regiment, strongly endorses the applicant's request for correction of his military records with respect to his DOR for CPT and consideration by an SSB for earlier promotion to MAJ.

6.  National Guard Regulation 600-100 (Commissioned Officers – FEDREC and Related Personnel Actions) provides procedures for processing applications for FEDREC.

	a.  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.

	b.  Paragraph 8-2b states that FEDREC will be accomplished only when an appropriate Modified Table of Equipment or Table of Distribution and Allowances position vacancy in the grade exists in the unit.

7.  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 FEDREC in the next higher grade in the ARNG under section 307 or 310 of Title 32 shall be the date on which such FEDREC in that grade is so extended.  In addition, the Reserve Officer Personnel Management Act, 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 FEDREC.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he was promoted to CPT/O-3 in the ARNGUS and NYARNG effective and with a DOR of 20 June 2002 and entitlement to all back pay and allowances due as a result of the correction because he was eligible for promotion.  However, his promotion was delayed by the State through no fault of his own.  He also contends that upon correction of his DOR for CPT, his records should be considered by an SSB for promotion to MAJ under the FY09 promotion criteria.

2.  State orders assigned the applicant to a CPT/O-3 position on 3 May 2002 and initially promoted him to CPT effective 20 June 2002.  Moreover, the applicant's OER for the period 4 June 2002 through 22 April 2003 shows he successfully served as Commander, Battery C, 1st Battalion, 258th Field Artillery, an O-3 AOC 74A position.

	a.  Records show the applicant's promotion to CPT in the NYARNG was subsequently changed to an effective date of 27 November 2002 and then to 17 September 2003.

	b.  NGB orders show the applicant's promotion to CPT was Federally recognized on 1 October 2003.  NGB now recommends correcting the effective date of FEDREC for the applicant's promotion to CPT to 8 June 2003.

	c.  It is not clear why a Unit Vacancy Promotion/FEDREC Board was not conducted to validate the applicant's qualification for promotion to CPT until late 2003.  However, it is clear that FEDREC of the applicant's promotion was significantly delayed through no fault of the Soldier.

	d.  There is no evidence the applicant was ineligible for promotion to CPT during the period 20 June 2002 through 1 October 2003, or that the delay in his promotion was due to any fault of the applicant.

	e.  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 NYARNG effective and with a DOR of 20 June 2002.

3.  Given the recommendation to correct the applicant's DOR for CPT to 20 June 2002, it would be appropriate to refer his records to an SSB for consideration under the FY09 MAJ promotion criteria.



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 State Army National Guard and 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 20 June 2002 and

	b.  granting him FEDREC in the rank of CPT/O-3 effective and with a DOR of 20 June 2002.

2.  As a result of the above corrections, the Defense Finance and Accounting Service shall be notified of the Board's determination 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.  As a result of this correction, the U.S. Army Human Resources Command, Officer Promotions Branch, should review the applicant's record to determine if he is eligible for consideration by an SSB under the FY09 MAJ promotion criteria.  If so, notify the applicant and forward his record for consideration by the appropriate SSB.



      ____________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)                                         AR20100018388



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ABCMR Record of Proceedings (cont)                                         AR20100018388



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