IN THE CASE OF:	  

		BOARD DATE:	    8 February 2011

		DOCKET NUMBER:  AR20100019825 


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 reconsideration of his previously denied request that his date of rank (DOR) to major (MAJ) and DOR to lieutenant colonel (LTC) be corrected to the dates he attained maximum time in grade (TIG) for the grades of captain (CPT) and MAJ, respectively.

2.  He states, in effect, that he accepts the Federal recognition effective dates of his promotions to both MAJ and LTC.  He further states his claim is solely related to the incorrect DORs established for each promotion.  Approval of this request will merely impact the timeline in which he is eligible for consideration to the grade of colonel (COL).

3.  He contends his eligibility for each of his promotions was based upon his assignment to positions of higher grades in his Army National Guard (ARNG) parent unit of assignment; and as such, his DORs to MAJ and LTC should be based upon the dates on which he attained the 7-year maximum TIG for the grades of CPT and MAJ, respectively.  He attests that at the time he was selected for promotion to:

* MAJ, he was serving in a valid MAJ position within his ARNG parent unit
* LTC, he was serving in a valid LTC position within his ARNG parent unit




4.  He attests that although he was serving on Full-Time National Guard Duty (FTNGD) as an Active Guard Reserve (AGR) officer in a CPT position at the time of his selection for MAJ and FTNGD in a MAJ position at the time of his selection for LTC; these positions relate only to his full-time duties at the time and had no bearing on determining his promotion eligibility for either grade.

5.  He contends that as an ARNG AGR officer, he was authorized DORs determined as follows in accordance with (IAW) paragraphs 4-15 and 4-19d of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), effective 1 October 1994 for his promotion to MAJ and 1 February 1998 for his promotion to LTC as follows:

	a.  Paragraph 4-15 provides that the Promotion Eligibility Date (PED) is the date the officer meets the eligibility criteria for promotion to the next higher grade; further, the officer's PED will become the officer's DOR upon promotion and will establish the PED to the next grade.

	b.  Paragraph 4-19d provides that the DOR for AGR officers will be the date the officer attained maximum TIG of the date on which assigned or attached to a position in the higher grade, whichever is earlier.

6.  He acknowledges that in each case:

* a controlled grade was not available to support his promotion until after he had attained the maximum TIG
* the effective dates of grade to MAJ and LTC were determined correctly and will not change
* he will not be entitled to back pay and allowances

7.  The applicant provides excerpts from his military records.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100009473, on 3 June 2010.

2.  He acknowledges that the Federal recognition effective dates of his promotions to both MAJ and LTC are correct and clarifies that his claim is solely related to the incorrect DORs established for each promotion.  He provides new argument that each of his promotions was based upon his assignment to positions of higher grades in his ARNG parent unit of assignment; and as such, his DORs to MAJ and LTC should be based upon the dates on which he attained the 7-year maximum TIG for the grades of CPT and MAJ, respectively, IAW paragraphs 4-15 and 4-19d of Army Regulation 135-155 (in effect at the respective times).  This argument was not previously reviewed by the ABCMR.  Therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  His military records show that while serving in the ARNG, he was promoted to the rank of CPT with an effective date and DOR of 21 February 1990.

4.  On 6 June 1997, the Total Army Personnel Command published orders promoting him to MAJ effective 20 February 1998 or the date Federal recognition was extended in the higher grade or the date following the date Federal recognition was terminated in his current grade.

5.  On 15 July 1997, he was ordered to FTNGD in the AGR for a period of 3 years as a CPT to fill a battalion S-1 (Personnel Officer) vacancy, a CPT's position.

6.  On 26 May 1999, he was afforded Federal recognition in the rank of MAJ.

7.  On 15 July 2000, he was ordered to FTNGD as a MAJ to fill a training officer's vacancy, a CPT's position.

8.  On 1 April 2003, he was ordered to FTNGD as a MAJ to fill an operations officer's vacancy, a MAJ's position.

9.  He was promoted to LTC with an effective date and PED of 11 May 2006.

10.  Both the 1 September 1994 version of Army Regulation 135-155 in effect at the time of his selection for promotion to MAJ and the 1 February 1998 version in effect at the time of his promotion to MAJ provide the following:

	a.  Paragraph 4-15a provides that the PED is the date the officer meets the eligibility criteria for promotion to the next higher grade.

	b.  Paragraph 4-15b provides that the DOR is the date the member actually or constructively was appointed or promoted to a specific grade.  It is the date used to determine the relative seniority for officers holding the same grade.  The officer's PED will become the officer's DOR upon promotion.  The DOR will be used to establish the PED to the next grade.

	c.  Paragraph 4-19d provides that AGR officers will be promoted effective on their PED provided they are attached to a position in the higher grade.  An AGR officer who is not attached to a position in the higher grade will be promoted effective on the date of reattachment to a higher graded position or the day after release from AGR status.  The PED will become the DOR.

11.  The 24 October 2001 version of Army Regulation 135-155 in effect at the time of his selection for and promotion to LTC provides, in pertinent part, the following for commissioned officers serving in an AGR status:

	a.  Paragraph 4-15c provides that officers serving on active duty in an AGR status may be promoted to or extended Federal recognition in a higher grade provided the duty assignment/attachment of the officer requires a higher grade than that currently held by the officer.  AGR officers who have been selected for promotion and are not assigned/attached to a position calling for a higher grade will receive a delay of promotion without requesting such action.  AGR officers will remain on the promotion list and serve on active duty in the AGR program until they are:

		(1)  Removed from the promotion list.

		(2)  Promoted to the higher grade following assignment/attachment to an AGR position calling for the higher grade.

		(3)  Promoted to the higher grade, if eligible, following release from active duty.

	b.  Paragraph 4-17b provides that the DOR is the date the member actually or constructively was appointed or promoted to a specific grade.  It is the date used to determine the relative seniority for officers holding the same grade.  An officer's DOR will be used to establish TIG requirements to the next grade.

	c.  Paragraph 4-21d provides that 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 by a mandatory promotion board, but who is not assigned/attached to a position in the higher grade, will be promoted effective on the date of assignment/reattachment to a higher graded position or the day after release from AGR status.  The DOR 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.

12.  Table 2-1 (TIG requirements commissioned officers, other than commissioned warrant officers) of Army Regulation 135-155 provides the maximum years in lower grade for promotion to both MAJ and LTC is 7 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his DORs to both MAJ and LTC should be corrected to reflect the dates on which he attained the 7-year maximum TIG for the grades of CPT and MAJ were carefully considered.  

2.  He acknowledges that the Federal recognition effective dates of his promotions to both MAJ and LTC are correct and clarifies that his claim is solely related to the incorrect DORs established for each promotion.  

3.  He contends his request is supported by paragraph 4-19d of the 1994 and 1998 versions of Army Regulation 135-155 which provides that the DOR for AGR officers will be the date the officer attained maximum TIG or the date on which assigned or attached to a position in the higher grade, whichever is earlier.  

4.  Contrary to his allegation, neither the 1994 nor the 1998 version of this regulation contains that provision.  In fact, paragraph 4-19d of both versions provides that AGR officers will be promoted effective on their PED provided they are attached to a position in the higher grade.  An AGR officer who is not attached to a position in the higher grade will be promoted effective on the date of reattachment to a higher graded position or the day after release from AGR status.  The PED will become the DOR.  Therefore, his effective date, PED, and DOR for promotion to MAJ were correctly established as 26 May 1999.

5.  The 24 October 2001 version of Army Regulation 135-155 was in effect at the time of his selection for and promotion to LTC and was the first version to provide that the DOR for AGR officers will be the date the officer attained maximum TIG or the date on which assigned or attached to a position in the higher grade, whichever is earlier.

6.  Evidence clearly shows his DOR for MAJ was properly established as 26 May 1999 based upon his PED.  Evidence also shows he was promoted to LTC with an effective date and PED of 11 May 2006.  Therefore, he was promoted to LTC prior to attaining maximum TIG as a MAJ.

7.  In view of the foregoing, his promotion effective dates, PEDs, and DORs to both MAJ and LTC were properly determined IAW contemporaneous policies.  He has failed to demonstrate the existence of any error or injustice in the establishment of his DORs.  Therefore, he is not entitled to the requested relief.
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 to amend the decision of the ABCMR set forth in Docket Number AR20100009473, dated 3 June 2010.



      __________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)                                         AR20100019825





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ABCMR Record of Proceedings (cont)                                         AR20100019825



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