IN THE CASE OF:	  

		BOARD DATE:	  13 April 2011

		DOCKET NUMBER:  AR20100024507 


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, in effect, adjustment to his date of rank (DOR) and effective date for captain (CPT) from 29 July 2010 to 26 August 2009 with entitlement to all back pay and allowances. 

2.  He states he was promoted to CPT effective 29 August 2009 and this promotion was then rescinded due to multiple administrative errors through no fault of his own.  The initial promotion packet was submitted to higher headquarters and the National Guard Bureau (NGB) prior to the suspense date.  Errors were found, fixed, returned, and delayed because the packet was lost by his higher headquarters.  He should have been promoted to CPT effective 26 August 2009.  A Federal review board reviewed and approved his promotion to CPT effective 26 August 2009.  

3.  He provides:

* Personnel Qualification Record – Junior
* Medical Operational Data System - Individual Medical Readiness Record
* 2008 NGB Form 89 (Proceedings of a Federal Recognition Examining Board (FREB))
* 2009 DA Form 5500 (Body Fat Content Worksheet – Male)
* 2009 recommendation for promotion memorandum
* 2009 CPT promotion orders
* 2010 Department of the Army (DA) Board Results
* 2010 CPT promotion orders
* 
2010 NGB promotion memorandum
* 2010 NGB special orders
* Email correspondence, dated 16 August 2009, 15 and 30 September 2009, and 2 and 5 October 2009

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was appointed in the Ohio Army National Guard (OHARNG) as a second lieutenant effective 22 August 2004 with prior enlisted service.  He was promoted to first lieutenant (1LT) effective 22 August 2006.

2.  Based on the required completion of 4 years of time in grade, his promotion eligibility date (PED) for CPT was 22 August 2010.

3.  On 16 July 2009, the OHARNG recommended him for promotion to CPT.

4.  On 26 August 2009, an FREB found him qualified for Federal recognition as a CPT in the OHARNG.

5.  Orders 245-901 were issued by the OHARNG on 2 September 2009 promoting him to CPT with a DOR and effective date of 26 August 2009.  The orders stated the effective date (pay) of promotion would be the date NGB extended Federal recognition of the State promotion.

6.  He was considered and selected for promotion to CPT by the Fiscal year 2010 Army Promotion List, CPT, Board which convened on 3 November 2009 and recessed on 13 November 2009.  The board results were released on 8 April 2010.

7.  Orders 105-939 were issued by the OHARNG on 15 April 2010 promoting him to CPT with a DOR and effective date of 8 April 2010.

8.  On 30 July 2010, NGB published Special Orders Number 164 AR extending him permanent Federal recognition and promotion to CPT effective 29 July 2010.

9.  On 30 July 2010, the NGB issued a memorandum through the State announcing his promotion to CPT with a DOR and effective date of 29 July 2010.

10.  He provided email correspondence between himself and a staff member of the OHARNG.  The correspondence, dated between 16 August and 5 October 2009, states his promotion packet was returned to the State on two occasions to correct errors and his unit vacancy promotion packet was mistakenly processed but should have been returned without action because it was submitted inside the cutoff date due to him being scheduled to be before a mandatory board.

11.  In the processing of this case, an advisory opinion was provided by the Chief, Personnel Policy Division, NGB, on 14 January 2011.  The advisory official reiterated the applicant's request.  The official stated the applicant's promotion packet was received on 2 September 2009 and was returned for corrections to the OHARNG on 16 September 2009.  The packet was then resubmitted on 24 September 2009 and was again returned to the OHARNG on 15 October 2009.  On both occasions, the promotion packet was returned to the State to remedy errors in the packet.  The applicant was due to appear before a mandatory DA promotion board convening on 3 November 2009.  The State was informed of the then-existing business practices whereby the Federal recognition section would not accept for processing a request to Federally recognize the promotion of any officer by way of a unit vacancy promotion if the officer was already scheduled to be considered by a DA mandatory board within the next 90 days (90-day rule).

12.  The advisory official also stated the OHARNG contends the request for promotion was erroneously returned for correction because the Federal recognition section asserted that the applicant was not fully qualified for promotion.  This is true; the policy has since been clarified.  Unfortunately, the initial application was not timely.  Even at the time the packet was initially submitted, a waiver of the 90-day rule was required in order to process the request for Federal recognition of the State promotion.  No waiver was ever requested.  The official recommended disapproval of the applicant's request.

13.  On 18 January 2011, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  The applicant did not respond.

14.  National Guard Regulation 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions) prescribes the procedures for processing all applications for Federal recognition.  Chapter 8 states a commissioned officer must complete the minimum of 2 years in the lower grade for promotion to CPT for a unit vacancy promotion.  ARNG commissioned officers will be mandatorily considered for promotion as Reserve commissioned officers of the Army when they meet the minimum promotion service requirements prescribed for the zone of consideration.  The provisions of Army Regulation 135-155 (Promotion of Commissioned Officer and Warrant Officer Other Than General Officers), will apply.

15.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve and ARNG officers.  The regulation states ARNG officers will be considered for promotion by mandatory promotion boards, and promotion to CPT required completion of 4 years of maximum time in grade as a 1LT.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to adjustment to his DOR and effective date for CPT from 29 July 2010 to 26 August 2009 with entitlement to all back pay and allowances. 

2.  The evidence of record shows he was promoted to 1LT effective 22 August 2006 and his PED for CPT was 22 August 2010.  On 2 September 2009, the OHARNG submitted a promotion packet for him to NGB.  This packet was returned to the State on 16 September and 15 October 2009 to remedy errors.  The State was informed that since the applicant was due to appear before the DA mandatory board convening on 3 November 2009, the packet could not be processed for a unit vacancy promotion.  An NGB official advised that the initial packet was not timely and even if it was timely submitted, no waiver was ever requested of the 90-day rule pertaining to promotion by a unit vacancy if the officer was already scheduled for consideration by a DA mandatory board within 90 days.

3.  The evidence of record also shows he was considered and selected for promotion to CPT by the Fiscal Year 2010 mandatory board.  The board results were released on 8 April 2010.  He was extended Federal recognition and promoted to CPT with a DOR and effective date of 29 July 2010.  This is the earliest date he could have been promoted to CPT based on his selection by a mandatory board and being Federally recognized by NGB.

4.  In view of the foregoing, it is concluded he was promoted to CPT on the earliest date he was eligible and in a timely manner and he has not shown otherwise.

5.  In view of the foregoing, there is no basis for granting his request.


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 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)                                         AR20100024507



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ABCMR Record of Proceedings (cont)                                         AR20100024507



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