IN THE CASE OF:	  

		BOARD DATE:	  11 August 2011

		DOCKET NUMBER:  AR20100021115 


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) as a major (MAJ) be adjusted from 23 June 2010 to an earlier date. 

2.  The applicant states his current DOR should be reviewed and fairly assessed in order to reflect more accurately his latest promotion eligibility and not to continue to hamper his current time in grade (TIG) as a MAJ for his next promotion.  He does not believe appropriate attention to detail was applied to his promotion due to State bureaucracy and mismanagement.  He became eligible for promotion to MAJ on 28 March 2007.  For nearly 2 years, not being connected to a unit, he was unaware of such eligibility and he was not attending regular training.  After transferring from the U.S. Army Reserve (USAR) to the Army National Guard (ARNG) in the summer of 2007, he reached maximum time in grade on 29 August 2008.  During a USAR/ARNG switch which included several documents with his captain (CPT) DOR and at least one officer evaluation report, no one at his unit picked up on his promotion eligibility.  He feels this is unjust.

3.  The applicant provides Orders 165-800 (promotion to MAJ) and Special Orders Number 134 AR (Federal Recognition promotion).

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted and commissioned officer service in the USAR and the ARNG, the applicant was appointed in the Illinois ARNG as a first lieutenant and executed an oath of office on 11 April 2000.  He was promoted to CPT on 30 August 2001.

2.  He entered active duty in support of Operation Enduring Freedom (OEF) on 20 December 2001.  He completed the Infantry Captains Career Course on 21 June 2002 and served in Afghanistan from 20 March 2003 through 15 December 2003.  He was honorably released from active duty on 19 December 2003. 

3.  He was honorably released from the ARNG on 26 July 2004 and he was transferred to the USAR Control Group (Reinforcement).  He was transferred from the USAR Control Group (Reinforcement) to the 308th Civil Affairs Brigade.  
4.  He subsequently entered active duty on 11 August 2004 and served in Kuwait/Iraq in support of Operation Iraqi Freedom from 25 September 2004 to 29 June 2005.  He was honorably released from active duty on 10 August 2005.  

5.  He was transferred from the USAR to the North Carolina ARNG (NCARNG) in the rank of CPT and executed an oath of office on 28 June 2007.  He was assigned to the 105th Engineer Battalion, NCARNG.

6.  He entered active duty in support of OEF on 7 November 2009 and subsequently served in Afghanistan in support of OEF from 3 January 2010 to 30 October 2010. 

7.  While mobilized, the NCARNG published Orders 165-800 promoting him to MAJ with an effective date and DOR of 14 June 2010.  He was ultimately extended Federal recognition for promotion to MAJ in the ARNG and as a Reserve commissioned officer of the Army with an effective date and DOR of 23 June 2010. 

8.  He was honorably released from active duty on 4 January 2011 and he was transferred to the NCARNG State control.

9.  An advisory opinion was received on 26 July 2011 in the processing of this case.  An official at the National Guard Bureau (NGB) recommended approval of adjusting the applicant's DOR and effective date of promotion to MAJ from 23 June 2010 to 7 November 2009 with entitlement to back pay and allowances. The official stated:

	a.  The applicant was promoted to CPT on 30 August 2001.  He transferred to the USAR on 26 July 2004.  He then joined the NCARNG on 28 June 2007.  He reached his maximum time in grade on 30 August 2008.  He was selected for promotion and was eligible for promotion with an effective date of 29 August 2008.

	b.  He was not in a MAJ/O-4 position and he was not considered for an O-4 assignment by the North Carolina Career Management Board.  National Guard Regulation (NGR) 600-100 ((Commissioned Officers - Federal Recognition and Related Personnel Actions), paragraph 8-2(b) states "except as provided in this chapter, promotion will be accomplished only when an appropriate MTOE/TDA (Modified Table of Organization and Equipment/Table of Distribution and Allowances) position vacancy in the grade exists in the unit.  Additionally, paragraph 8-1 states that promotion of officers in the ARNG is a function of the State.

	c.  NCARNG submitted documentation for the applicant to be promoted to MAJ based on NGB memorandum 04-0025, Clarification of Policy to Promote Department of the Army Select Mobilized Officers at Maximum Time in Grade.  This memorandum states that ARNG officers recommended for promotion to the grades of CPT through lieutenant colonel mobilized under Title 10, U.S. Code , and who are on an approved mandatory selection board promotion list who reach their maximum time in grade, will be promoted without regard to a position vacancy unless that officer has voluntarily delayed or declined promotion.  In the event the State either does not desire to promote the officer or does not have a vacant position at the higher grade against which to promote the officer, the officer will sign a statement acknowledging that he or she is being promoted due to reaching maximum time in grade and that if the officer does not occupy a position at the higher grade within 6 months after redeployment, the officer will be involuntarily transferred to the Individual Ready Reserve.  

	d.  The applicant was eligible for promotion on 7 November 2009, the day he mobilized.  Therefore, his Federal Recognition Order Number 134 AR, dated 23 June 2010, should be amended to show his promotion effective date and DOR as 7 November 2009.  The State confirms he is filling a MAJ/O-4 position and concurs with the NGB's recommendation.

10.  The applicant was provided with a copy of this advisory opinion but he did not respond. 

11.  Army Regulation 135-155 (Army National Guard and Army Reserve Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for the promotion of Reserve Component officers.  Table 2-1 provides the TIG requirements for promotion of commissioned officers.  It states that for promotion from CPT to MAJ, the minimum number of years in the lower grade is 4 years and the maximum number of years in the lower grade is 7 years.

12.  NGR 600-100 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 MTOE/TDA 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 was promoted to CPT on 30 August 2001.  The maximum time in grade for promotion consideration from CPT to MAJ is 7 years.  He reached his maximum time in grade on 30 August 2008.  He was selected for promotion and was eligible for promotion with an effective date of 29 August 2008.  However, he was neither in a MAJ/O-4 position nor was he considered for an O-4 assignment by the North Carolina Career Management Board.

2.  Promotion of officers in the ARNG is a function of the State.  According to NGR 600-100 promotion will be accomplished only when an appropriate MTOE/TDA position vacancy in the grade exists in the unit.  

3.  Nevertheless, ARNG officers recommended for promotion to the grades of CPT through lieutenant colonel mobilized under Title 10, U.S. Code , and who are on an approved mandatory selection board promotion list who reach their maximum time in grade, will be promoted without regard to a position vacancy unless that officer has voluntarily delayed or declined promotion.  

4.  The applicant was eligible for promotion on 7 November 2009, the day he mobilized.  Therefore, he is entitled to have his Federal recognition orders amended to show his promotion effective date and DOR for MAJ as 7 November 2009 with entitlement to back pay and allowances.  

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 State Army National Guard and Department of the Army records of the individual concerned be corrected by amending NGB Special Orders Number 134 AR, dated 23 June 2010, to show he was extended Federal recognition in the grade of MAJ effective 7 November 2009 and paying him all back pay and allowances 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)                                         AR20100021115





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ABCMR Record of Proceedings (cont)                                         AR20100021115



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