IN THE CASE OF:
BOARD DATE: 12 May 2011
DOCKET NUMBER: AR20100022437
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 adjustment of his date of rank (DOR) to captain (CPT) in the Texas Army National Guard (TXARNG) from 24 February 2009 to 24 June 2008.
2. The applicant states he was mobilized on 20 September 2007 in support of Operation Enduring Freedom (OEF). During his deployment, he became eligible for a unit vacancy. His DOR as a first lieutenant (1LT) was 24 June 2006. Prior to his deployment, he was slotted in a CPT's position in his unit. He met the requirements for promotion to CPT and his commander recommended him for promotion. However, he was told by his career manager that he could not be promoted because he was deployed and he had been assigned to a derivative unit identification code (UIC) of his parent unit. This action led to a delay in his promotion. He was told he could not be promoted until after he redeployed. Had he not been deployed, he would have been recommended for promotion by the Federal Recognition Examining Board (FREB).
3. The applicant provides:
* Orders 330-1325 (State promotion to CPT)
* National Guard Bureau (NGB) Special Orders 306 AR (initial appointment), 43 AR (promotion to 1LT), and 193 AR (promotion to CPT)
* U.S. Army Reserve (USAR) promotion to CPT and 1LT memoranda
* Orders 174-1003 (promotion to 1LT)
*
Orders 197-1110 (State appointment orders)
* Mobilization and demobilization orders
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Email exchange with Officer Personnel Management
* ARNG memorandum, Subject: Promotion of ARNG Commissioned Officers Mobilized Under a Derivative UIC - Policy Memo Number 06-032
* Extracts of Title 10, U.S. Code
* Diploma for completion of the Army Medical Department (AMEDD) Officer Basic Course
* DA Form 1059 (Service School Academic Evaluation Report)
* Diplomas showing award of a Bachelor of Science and a Master of Physician Assistant Studies with allied academic transcripts
CONSIDERATION OF EVIDENCE:
1. The applicant served in the Regular Army in an enlisted status from 19 March 1993 to 18 July 1998, the USAR from 19 July 1998 to 27 January 2001, and the TXARNG from 28 January 2000 to 24 June 2004.
2. On 25 June 2004, an FREB was held by the TXARNG to determine if the applicant was qualified to be extended Federal recognition for appointment as a second lieutenant (2LT) in the TXARNG. The proceedings indicated that the applicant was satisfactory in his physical qualifications, moral character, and general qualifications; therefore, he qualified for this appointment.
3. He was appointed as a 2LT in the Army Medical Specialist Corps of the TXARNG and he executed an oath of office on 25 June 2004. He was assigned to Headquarters and Headquarters Company and Support Company, 111th Area Medical Battalion, UIC WQBVAA, San Antonio, TX.
4. On 8 December 2004, the NGB published Special Orders Number 306 AR extending him Federal recognition for this initial appointment, effective 25 June 2004.
5. On 10 June 2005, he completed the AMEDD Officer Basic Course during the period 31 May 2005 through 10 June 2005 at Fort Sam Houston, TX.
6. On 28 July 2005, he was ordered to active duty in support of OEF. He subsequently served in Kosovo from 20 August 2005 to 17 January 2006. He was honorably released from active duty on 31 January 2006.
7. On 23 June 2006, the TXARNG published Orders 174-1003 promoting him to 1LT, effective 25 June 2006.
8. On 4 August 2006, the NGB issued Special Orders Number 193 AR extending him Federal recognition for promotion to 1LT, effective 25 June 2006.
9. On 27 July 2007, the TXARNG published Orders 208-1025 transferring him from the position of Physician Assistant with the 111th Area Medical Battalion, UIC WQBVAA to the position of Medical Mentor, Brigade Team 3, UIC W8BBM3, effective 1 August 2007. UIC W8BBM3 is a derivative UIC of W8BBAA, Joint Force Headquarters, TXARNG.
10. On 20 September 2007, he was ordered to active duty in support of OEF. He subsequently served in Afghanistan from 22 December 2007 to
18 September 2008. He was honorably released from active duty on 1 October 2008.
11. Upon his release from active duty, he was further assigned to the 162nd Area Support Medical Company, UIC WY3GAA.
12. On 25 November 2008, the TXARNG published Orders 330-1025 promoting him to captain, effective 20 November 2008.
13. On 25 February 2009, the NGB issued Special Orders Number 43 AR extending him Federal recognition for promotion to CPT, effective 24 February 2009.
14. On 3 March 2009, the TXARNG published Orders 062-1060 transferring him from the position of Physician Assistant with the 162nd Area Support Medical Company (WY3GAA) to the position of Physician Assistant, Medical Detachment, Texas Medical Command (W8B7AA), effective 27 February 2009.
15. In the processing of this case, on 5 April 2011, an advisory opinion was obtained from the NGB. The advisory official recommended disapproval of the applicant's request and stated:
a. According to an email, dated 7 February 2011, provided by the TXARNG, the applicant's parent unit prior to mobilization was the 111th Area Medical Battalion, UIC: WQBVAA. He transferred to the Brigade Team 3, TXARNG, UIC: W8BBM3 on 1 August 2007, which is not a DUIC of the 111th Area Medical Battalion. He was then mobilized on 20 September 2007.
b. NGB Policy Memo Number 06-032, dated 10 July 2006, states that "
must be promoted into a position vacancy of the higher grade which is within the derivative UIC to which assigned. The position must be derived from the parent UIC and the officer must be the sole occupant of the position. If the derivative UIC is not derived from the parent UIC, the officer may not be promoted.
c. The applicant was released from active duty on 1 October 2008. His unit vacancy promotion packet was submitted in November 2008 and he was Federally recognized on 24 February 2009. The effective date of promotion and DOR is the date the Chief, NGB, extends Federal recognition. It is not the date of appointment into the position nor is it the date of Federal recognition board action if either of those dates is an earlier date.
d. the State concurred with this recommendation.
16. The applicant was provided with a copy of this advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal. On 4 May 2011, the applicant responded with a rebuttal wherein he stated:
a. prior to his mobilization his parent unit was the 111th. The advisory opinion incorrectly states that he was transferred to the Brigade Team 3 on
1 August 2007. The reason for this transfer was his mobilization. Prior to his deployment, he was the sole occupant of this position, he met the requirements for promotion, and he was recommended for promotion.
b. Policy Memorandum Number 06-032 was changed on 2 February 2009. The change states that mobilized ARNG officers, regardless of the units to which assigned or mobilized, may be unit vacancy promoted against positions within their respective States. Additionally, the Army policy, effective 1 July 2009, states mobilized ARNG officers, regardless of the units to which assigned or mobilized, may be unit vacancy promoted against positions within their respective States provided they meet the qualifications of National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions), paragraph 8-7.
c. Policy Memorandum Number 06-032 referenced by the NGB official was not applied equally in all situations. There were other ARNG officers from other States who were promoted under a unit vacancy promotion even though they were in a derivative UIC with no parent unit. It is a disparity to promote one officer under one policy and then prohibit the promotion of another under the same policy.
17. National Guard Regulation 600-100 provides procedures for processing all applications for Federal recognition of ARNG officers. Paragraph 8-8 of this regulation states a commissioned officer must complete the required minimum years of promotion service prior to being considered for promotion and Federal recognition in the higher grade. Promotion from 1LT to CPT requires a minimum of 2 years time in grade.
18. Policy Memorandum Number 06-032, dated 10 July 2006, and in effect until rescinded or suspended, states that mobilized officers who are deployed as part of a derivative UIC may be promoted provided that they are fully qualified and the derivative UIC must be created from a Federally recognized unit whose positions and control grades are derived from the parent unit. These officers must be promoted into a position vacancy of the higher grade which is within the derivative UIC to which assigned. Positions must be derived from the parent UIC and the officer must be the sole occupant of the position. If the derivative UIC is not derived from the parent UIC, the officer may not be promoted. This policy was revised on 2 February 2009.
DISCUSSION AND CONCLUSIONS:
1. The applicant was appointed as a 2LT on 25 June 2004 and he was promoted to 1LT on 25 June 2006. The earliest he would have been eligible for promotion to CPT would have been 25 June 2008.
2. According to the State and the NGB, prior to his mobilization on 20 September 2007, the applicant's parent unit was the 111th Area Medical Battalion (UIC: WQBVAA). He transferred to the Brigade Team 3, TXARNG (UIC: W8BBM3) on 1 August 2007, which is not a derivative UIC of the 111th Area Medical Battalion.
3. The NGB policy in effect at the time of his mobilization stated that the officer must be promoted into a position vacancy of the higher grade which is within the DUIC to which assigned. The position must be derived from the parent UIC and the officer must be the sole occupant of the position. Since the DUIC he was assigned to at the time was not derived from the parent UIC, he could not be promoted.
4. When the NGB policy was changed in February 2009, he had returned from mobilization and he had been recommended for promotion which was ultimately Federally recognized by the NGB effective 24 February 2009. In view of the foregoing, there is insufficient evidence to grant him 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 for correction of the records of the individual concerned.
__________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) AR20100022437
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ABCMR Record of Proceedings (cont) AR20100022437
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