IN THE CASE OF:	  

		BOARD DATE:	  3 May 2011

		DOCKET NUMBER:  AR20100023273 


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) from 19 November 2007 to 8 June 2006. 

2.  The applicant states he met all eligibility requirements for promotion to CPT in the Medical Services Corps (MSC) of the Idaho Army National Guard (IDARNG) on 8 June 2006.  He was eligible for promotion in accordance with National Guard Bureau (NGB) Memorandum regarding AMEDD (Army Medical Department) Officer Personnel Management.  Additionally, the email traffic from the IDARNG confirms the error that caused his records to reflect that he was not qualified for education purposes.  The error puts him at a disadvantage for future promotion eligibility and consideration for competitive assignments. 

3.  The applicant provides:

* NGB Form 89 (Proceedings of a Federal Recognition Examining Board)
* IDARNG Orders 438-038 (promotion to CPT)
* NGB Special Order Number 301 AR (Federal recognition order)
* NGB Memorandum, dated 20 July 2007, Subject: AMEDD Officer Personnel Management
* AMEDD Fiscal year 2007 (FY07) Area of Concentration (AOC) and Additional Skill Identifier (ASI) Chart
* Authorized Substitutability List
* Email with various individuals


CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show he was appointed in the IDARNG as a second lieutenant (2LT), Medical Services, and he executed an oath of office on 8 June 2002.  He entered active duty for training on 4 March 2003 and he completed the AMEDD Officer Basic Course.  He held AOC 70B (Health Services Materiel Officer).

2.  He entered active duty on 7 June 2004 and he was promoted to first lieutenant (1LT) on 8 June 2004.  He served in Kuwait/Iraq from 18 November 2004 to 5 November 2005 and he was honorably released from active duty on 21 November 2005.

3.  On 18 September 2007, a Federal Recognition Examining Board was held by the IDARNG to determine if the applicant was qualified to be awarded Federal recognition for promotion from 1LT to CPT in the MS.  The proceedings indicated that the applicant was satisfactory in his physical qualifications, moral character, and general qualifications and qualified for this promotion.  

4.  On 21 September 2007, IDARNG published Orders 438-038 promoting him to CPT effective 19 September 2007.

5.  On 26 October 2007, he was reassigned from his position as a Health Officer Materiel Officer (70K) in the IDARNG Medical Detachment, Boise, ID, to the position of Patient Administration Officer (70E) of the same unit effective 26 October 2007.

6.  On 1 November 2007, he entered active duty for special work (ADSW).  He was assigned to the Joint Force Headquarters, IDARNG, with duty at Landstuhl Regional Medical Center.

7.  On 30 November 2007, the NGB published Special Orders Number 301 AR extending the applicant Federal recognition for his promotion to CPT, effective 29 November 2007.

8.  He submitted:

	a.  An email, dated 30 March 2007, to the ARNG AMEDD Personnel Program Manager (PM), wherein he inquired about the requirement for promotion to CPT. 

	b.  An email, dated 30 March 2010, from the PM informing him that according to Department of the Army Pamphlet (DA PAM) 611-21 (Military Occupational Classification and Structure) the 70B is limited to company grade officers and that an MSC officer cannot be promoted to major (MAJ) without having an AOC producing course.  However, there was no requirement for him to have an AOC to be promoted to CPT.

	c.  An email, dated 21 May 2010, from the State Officer Personnel Manager, IDARNG, who states:

* The AMEDD policy was that officers do not have to be AOC qualified until they are looking at promotion to MAJ
* Once his office became aware of this policy, they processed the applicant's promotion to CPT
* Although he was not AOC qualified, it is unclear if he were best qualified at the time
* He failed to complete an appropriate AOC producing course despite several counseling dating back to 2003
* Although he was mobilized 18 months out of the 4 years, he still failed to complete an AOC producing course
* He still needs to complete the captains career course (CCC) and become AOC qualified for promotion to MAJ; if his DOR is adjusted, without the CCC and AOC, he risks mandatory consideration for promotion to MAJ sooner

9.  An advisory opinion was obtained on 24 March 2011 from the NGB in the processing of this case.  An NGB official recommended approval of adjusting the applicant's DOR from 29 November 2007 to 8 June 2006.  He added:

	a.  The applicant was promoted to 1LT on 8 June 2004.  National Guard Regulation (NGR) 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actins) indicates the minimum time of grade for promotion from 1LT to CPT is 2 years.  Upon completing the AMEDD Officer Basic Course and the time in grade requirements, the applicant would have been eligible for promotion on 8 June 2006.

	b.  NGB Memorandum, AMEDD Officer Personnel management states in paragraph 8 that all AMEDD officers must be qualified in the duty position in order to be promoted.  As an exception, 70 series MS officers are not required to complete an AOC producing course (70A through 70K) prior to promotion to CPT.  However, they must complete an AOC producing course prior to subsequent promotion if assigned to other than 70B position.

	c.  An email, dated 21 May 2010, from an IDARNG official stated that once they became aware of the guidance in the above memorandum, they processed the applicant for promotion.  Additionally, the email stated that the State did not have the ability or authority to adjust his DOR.  

	d.  Due to the contradiction and ambiguity of the language used in the AMEDD memorandum, the State does not support the applicant's request.  The IDARNG states that it was not their intent to promote him and there was no recommendation submitted to promote him.  Additionally, the same memorandum states in item 4g(3) "70 series will not be awarded primary AOCs by virtue of assignment.  All 70 series (except 70B) require completion of AOC specific civilian/military education for award of those AOCs.  States may not award AMEDD based on military "on the job training."  IDARNG also references section (a) (4) which states "70 series MS officers may be assigned against any other 70 series position but must become qualified to hold the AOC of the position prior to promotion.  2LTs within an AOC of 70B are exempt from the requirement to become qualified in the duty position AOC prior to promotion to 1LT.  It is rare that an officer would have both the time available and the seats available to be able to complete both the basic course and a subsequent AOC producing course within 2 years prior to promotion to 1LT.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows the applicant was assigned to a 70B series for 1 day and it was not during the timeframe in question.  The AMEDD memorandum has been revised as of November 2010 to clarify the ambiguous verbiage previously used.

	e.  Additionally, the IDARNG states that promotions will be completed utilizing the best qualified method.  An email, dated 21 May 2010 states that "whereas the applicant was not AOC qualified due to not having completed the appropriate AOC producing school, I do not know if he would be determined to be "best qualified"."  This statement references guidelines found in DA Pam 600-4 (AMEDD Officer Management and Career Development), chapter 5, which states "though the specific procedures for selecting officers for grade advancement have varied over time, the objectives of this process have remained constant - ensure advancement to the higher grades of the best-qualified officers; meet Army, branch, AOC, functional area and grade requirements; provide incentives for career service; promote officers based on the whole person concept and demonstrated potential to serve in the next higher grade; and eliminate ineffective officers, although not an objective, is another result of the promotion process."

	f.  Although there was no contradiction in policy, IDARNG promoted the applicant based on the exception referenced in the guidelines.  NGR 600-100 states in chapter 8 that promotion of ARNG officers is a function of the State.  

	g.  The IDARNG indicated that no prior recommendation for promotion was submitted on behalf of the applicant.

	h.  The Office of the Chief Surgeon, ARNG, supports the Board to review this request but does not concur with the approval.

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

11.  NGR 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.

12.  NGB Memorandum, AMEDD Officer Personnel management states in paragraph 8 that all AMEDD officers must be qualified in the duty position in order to be promoted.  As an exception, 70 series MS officers are not required to complete an AOC producing course (70A through 70K) prior to promotion to CPT.  However, they must complete an AOC producing course prior to subsequent promotion if assigned to other than 70B position.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was appointed as a 2LT on 8 June 2002.  He completed the AMEDD Officer Basic Course on 23 May 2003 and he was promoted to 1LT on 8 June 2004.  He was eligible for promotion to CPT on 8 June 2006.  

2.  Although AMEDD officers must be qualified in the duty position in order to be promoted, the applicant, a 70 series MS officer, was excepted and was not required to complete an AOC producing course.  

3.  However, being eligible for promotion does not mean best qualified for promotion.  There is no evidence the applicant was recommended for promotion on his date of eligibility or that if recommended he would have been promoted on the date of his eligibility.  Since ARNG promotions are a function of the State and since the applicant was neither recommended nor considered best qualified for promotion to CPT on his eligibility date, 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)                                         AR20100023273



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ABCMR Record of Proceedings (cont)                                         AR20100023273



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