IN THE CASE OF:	  

		BOARD DATE:	  12 April 2011

		DOCKET NUMBER:  AR20100023391 


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) and effective date of promotion to lieutenant colonel (LTC) from 11 March 2010 to 11 March 2009. 

2.  The applicant states the basis of his request centers on an unjustified OER (officer evaluation report) in his promotion file.  He received a negative OER which resulted in his non-selection for promotion from major (MAJ) to LTC by the Fiscal Year 2008 (FY08) Department of the Army (DA) Army Promotion List (APL) Board as well as the 2008 Arizona Army National Guard (AZARNG) promotion list.  The non-selections prevented the AZARNG from transferring him to an O-5/LTC position and delayed his promotion for over 2 years while awaiting the OER appeal results.  The Officer Special Review Board (OSRB) granted him relief in that it ordered removal of the contested OER and submission of his records before an SSB (special selection board).  He was selected for promotion by the 2010 SSB under the FY08 year criteria.

3.  The applicant provides:

* OSRB Record of Proceedings
* SSB findings and recommendations
* AZARNG memorandum of promotion
* Orders 068-611, dated 9 March 2010
* National Guard Bureau (NGB) Special Orders Number 45 AR



CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service in the Regular Army, the applicant’s military records show he was appointed in the ARNG as a second lieutenant and he executed an oath of office on 7 June 1991.  He completed various aviation training courses and he was promoted to MAJ on 1 October 2002.

2.  On 27 April 2007, he petitioned the OSRB for removal of an OER covering the period 17 April 2006 through 27 August 2006.   

3.  On 2 April 2009, the OSRB granted him relief in that it ordered removal of the contested OER and promotion consideration by an SSB under the appropriate year criteria.

4.  On 1 June 2009, Joint Force Headquarters, AZARNG, issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

5.  On 14 January 2010, by memorandum, Joint Force Headquarters, AZARNG, notified him of his selection for retention for a period of 2 years by the 2010 Selection Retention Board.

6.  On 21 January 2010, by memorandum, the U.S. Army Human Resources Command, St. Louis, MO (HRC-STL), notified the applicant that he was selected for promotion to LTC by the DA Reserve Components Selection Board (RCSB).  His effective date and DOR would be the date he is extended Federal recognition for this promotion. 

7.  On 10 March 2010, Joint Force Headquarters, AZARNG, published Orders 068-611, promoting him to LTC effective 10 March 2010.

8.  On 11 March 2010, the NGB published Special Orders Number 45 AR extending him Federal recognition for promotion to LTC effective 11 March 2010.

9.  Also on 11 March 2010, HRC-STL issued the applicant his promotion to LTC memorandum with an effective date of 11 March 2010. 

10.  On 25 March 2010, by memorandum, HRC-STL notified the applicant that his records were considered for promotion to LTC by the 2010SS01R SSB that convened on 13 November 2009 under the FY08 criteria and that he was selected for promotion.  The memorandum also notified him that the earliest DOR he could receive is the Presidential approval date of the criteria year (2008) selected under (16 December 2008).  The effective date of promotion is either of the following:  30 September 2009; or the date Federal recognition extended in the higher grade; or the date following the date Federal recognition is terminated in current Reserve grade.

11.  On 1 September 2010, by memorandum to HRC-STL, the Deputy Chief of Staff, G-1, AZARNG, stated:

	a.  The applicant was selected by the FY09 DA LTC APL Selection Board while pending an SSB after appealing his non-selection by the FY08 DA LTC APL Selection Board.  He was promoted to LTC by the AZARNG on 11 March 2009 upon his assignment to a LTC position in which he was fully qualified for promotion.

	b.  The applicant's adjusted DOR and effective date should be adjusted to 11 March 2009 based on the favorable results of the SSB that convened/ adjourned on 13 November 2009.  The State could not process the requested DOR for Federal recognition amendment since the applicant was not yet assigned to the higher grade position on that date.

12.  An advisory opinion was obtained on 11 March 2011 from the NGB in the processing of this case.  An NGB official recommended approval of adjusting the applicant's DOR from 11 March 2010 to 11 March 2009.  He was advised of this favorable advisory opinion but he did not respond. 

13.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers).prescribes the policies and procedures for the promotion of Reserve and ARNG officers.  It states in paragraph 4-21e(2) if an officer is elected by a promotion advisory/special selection board, the officer's DOR and effective date for pay and allowances will be the same as if the officer had been recommended for promotion to the grade by the mandatory board that should have considered or that did not consider the officer.  Therefore, the officer may have a maximum time in grade date that is before the approval date of the promotion advisory board/special selection board that recommended him or her for promotion.

14.  Army Regulation 135-155 also states that promotion reconsideration by a special selection board (SSB) may only be based on erroneous non-
consideration or material error, which existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual’s non-selection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant petitioned the OSRB to have a negative OER removed from his record.  The OSRB granted him relief and ordered his records be submitted before an SSB for promotion consideration under the 2008 year criteria.  While pending this SSB, he was selected for promotion by the FY10 RCSB.  The NGB extended him Federal recognition based on his selection by the RCSB with an effective date and DOR as 11 March 2010.

2.  However, he was fully qualified for promotion to LTC on 11 March 2009 as evidenced by the fact that he was promoted to LTC by the AZARNG on 11 March 2009 upon his assignment to a LTC position in which he was fully qualified for promotion.  The SSB selected him for promotion to LTC under an earlier year criteria.  Therefore, his DOR and effective date should be adjusted to 11 March 2009 based on the favorable results of the SSB.

BOARD VOTE:

___X____  ____X___  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all State Army National Guard records and Department of the Army records of the individual concerned be corrected by amending Federal Recognition Special Orders Number 45 AR, dated 11 March 2010, to show he was extended Federal Recognition in the grade of LTC effective 11 March 2009 and restoration of back pay and allowances 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)                                         AR20100023391



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ABCMR Record of Proceedings (cont)                                         AR20100023391



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