BOARD DATE:	  22 February 2010

		DOCKET NUMBER:  AR20100024882 


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 lieutenant colonel (LTC) to 8 April 2010 with entitlement to back pay and allowances.

2.  The applicant states he was on the Department of the Army (DA) promotion board list for promotion to the rank/grade of LTC/O-5, mobilized in support of Operation Enduring Freedom (OEF), and had reached his maximum years of service, 7 years, as a major (MAJ).  Prior to this date, he received a memorandum from his program management officer (PMO) requesting he accept, decline, or delay his promotion.  He accepted the promotion but his PMO never took action to transfer him to the IRR (Individual Ready Reserve) of the U.S. Army Reserve (USAR).  Once transferred, the U.S. Army Human Resources Command (HRC) promoted him to LTC with a DOR of 15 July 2010, reflecting the date his Army National Guard (ARNG) Federal recognition was withdrawn.  He adds that he does not know if the Georgia ARNG (GAARNG) transferred him when he requested if his date of promotion in the IRR would have been based upon the date of his mandatory DA selection board (30 December 2009).  Additionally, he was identified to fill an O-5 slot within the G-3/5/7 office of Headquarters, DA (HQDA).

3.  The applicant provides:

* a memorandum of eligibility for promotion as a Reserve commissioned officer not on active duty, dated 21 January 2010
* a listing of the Fiscal Year 2009 (FY09) Reserve Component/Army Promotion List (RC/APL) LTC selection board results
* 
a copy of National Guard Bureau (NGB) Special Orders Number 91 AR, dated 8 April 2003 (promotion to MAJ)
* a copy of Orders 70-11, dated 11 March 2009 (release from attachment orders)
* a copy of Orders 238-513, dated 26 August 2009 (Temporary Change of Station (TCS) orders)
* a copy of Orders A-05-015780, dated 26 May 2010 (mobilization orders)
* a printout from the Soldier Management System (SMS) of the Integrated Web Services (IWS)
* two previous Army Board for Correction of Military Records - Record of Proceedings, pertaining to other Soldiers, dated 24 October and
2 November 2006

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant's records show he was appointed as a Regular Army infantry commissioned officer in the rank of second lieutenant and he executed an oath of office on 29 May 1993.  He was honorably discharged from active duty on 1 February 1997.

2.  He was appointed as a captain in the Iowa ARNG (IAARNG) and executed an oath of office on 2 February 1997.  He subsequently transferred to the Maryland ARNG (MDARNG) and West Virginia ARNG (WVARNG).  He served on active duty from 1 October 1997 to 29 September 1998 and from 1 October 1999 to
29 September 2000.  He was promoted to MAJ on 8 April 2003.

3.  On 21 January 2009, he transferred to the GAARNG and the NGB accordingly extended him Federal recognition for this transfer. 

4.  On 1 March 2009, the NGB published Orders 70-11 ordering him to active duty in support of OEF for a period of 1 year, 1 month, and 10 days, from 6 August 2009 to 15 September 2010.  He was subsequently ordered deployed in a TCS status and attached to Task Force Phoenix, Afghanistan.

5.  The applicant's entry on SMS, dated 20 January 2010, shows he communicated with his PMO regarding his interest in switching from the ARNG to an Individual Mobilization Augmentee (IMA) position and that his PMO stated he must be placed in the IRR first.

6.  On 21 January 2010, the FY09 LTC RC/APL Mandatory Selection Board, which was approved on 30 December 2009, released its results.  The applicant was selected for promotion to LTC.

7.  On 21 January 2010, by memorandum, the GAARNG notified the applicant that he had been selected by a mandatory promotion board to LTC and that in order to receive this promotion in the ARNG he would have to be selected for this promotion by the GAARNG along with his selection by the mandatory board.  His options were:

* Accept promotion and transfer to the IRR; must be submitted in writing
* Delay promotion; must be requested in writing
* Decline promotion; would forfeit promotion in the USAR but he would be considered by the next board

8.  There is no indication in the applicant's records that he responded to this memorandum.

9.  On 20 April 2010, he submitted a sanctuary packet to the ARNG.  Accordingly, on 26 May 2010, subsequent to his demobilization, he was ordered to active duty for a period of 406 days to obtain 20 years of AFS.  He was assigned to the G-3/5/7 office, HQDA, The Pentagon, Washington, D.C.

10.  An SMS entry, dated 28 July 2010, shows he requested to be discharged from the ARNG, transferred to the Reserve, and have his Federal recognition withdrawn.  Accordingly, he was honorably discharged from the ARNG, effective 15 July 2010, and transferred to the USAR Control Group (Reinforcement).  The NGB Form 22 (Report of Separation and Record of Service) he was issued shows he completed 20 years, 10 months, and 18 days of total service for retired pay.

11.  On 24 August 2010, the NGB published Special Orders Number 184 AR withdrawing Federal recognition from the applicant.

12.  On 1 September 2010, Joint Force Headquarters, GAARNG, issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

13.  On 20 September 2010, HRC-STL published Orders B-09-006092 announcing his promotion to LTC with an effective date and DOR as 16 July 2010.

14.  The applicant provided two previous cases submitted by other Soldiers that were adjudicated by the ABCMR.  In both cases, the Soldiers received their promotion notifications while on active duty and should have been promoted when they reached their maximum time in service.  In each case, the Board 

directed the Soldiers' promotion to the higher grade without regard to availability of a vacancy, on the date the applicant reached his maximum time in grade. 

15.  During the processing of this case, an advisory opinion was obtained on
5 January 2011 from the Chief, Personnel Policy Division, NGB.  The advisory official recommended disapproval of the applicant's request.  The official stated that:

	a.  According to the documentation provided, the applicant reached 18 years of Active Federal Service (AFS) during his deployment.  He requested and he was approved to remain in AFS under sanctuary status for 2 years until reaching 20 years of AFS.  The law states a sanctuary provides that a Reserve member on active duty who upon attaining 18 years but less than 20 years of active service may not be involuntarily released from active duty before reaching 20 years unless approved by the Secretary of the Army or his designee.  RC Soldiers retained for this type of sanctuary are referred to as Sanctuary Soldiers.  Each Sanctuary Soldier is placed on ADOS (Active Duty for Operational Support) orders by HRC and is assigned worldwide based on the needs of the Army until reaching 20 years of AFS. 

	b.  The applicant was assigned to a specially created TDA (Table of Distribution and Allowances) position because at the time he entered sanctuary there was a restriction on transferring Soldiers from the ARNG to the IRR.  The applicant resigned from the Title 10 Active Guard Reserve (AGR) program to remain in AFS on ADOS under the sanctuary program until reaching mandatory retirement in 2 years.

	c.  As the restriction on moving Soldiers to the IRR was subsequently lifted, the GAARNG transferred the applicant to the IRR on 15 July 2010.  The NGB published orders separating him on that date.  While he was serving on the TDA in a MAJ position, the GAARNG did not promote him to LTC.  He was a MAJ at the time of his discharge from the ARNG.  He was promoted to LTC after his separation from the ARNG.

16.  A copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  In his rebuttal, dated 10 January 2011, the applicant stated that his request for adjustment of his DOR is based on the PPG (Personnel Policy Guidance) which essentially states RC officers recommended for promotion to CPT through LTC by a mandatory board would be promoted on the date they attain maximum 

years of service without regard to the existence of a vacancy.  His DOR to MAJ 
was 8 April 2003, he was considered by a mandatory board, and he was selected while mobilized on active duty.  When he received his promotion letter on
21 January 2009, he responded by email but he never selected to decline or defer his promotion.

17.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers, Other Than General Officers) prescribes policy and procedures used in the selection and promotion of commissioned officers of the Army National Guard of the United States and commissioned and warrant officers of the USAR.  Table 2-1 (Time in Grade Requirements for Commissioned Officers, Other Than Commissioned Warrant Officers) of this regulation outlines the service requirements for promotion and indicates that for promotion to LTC the maximum years in the lower grade is 7 years.

18.  Army Regulation 135-155, chapter 4 (Processing Selection Board Recommendations), section III (Dates of Promotion), provides the procedures for computing promotion effective dates of all RC Soldiers.  It states the DOR is the date the officer meets the eligibility criteria for promotion to the next higher grade and that an officer’s PED will become their DOR upon promotion and this date will be used to establish the relative seniority for officers holding the same rank.  

19.  Title 10, U.S. Code, section 14304(b) and 14316(d), state that a mobilized RC officer who has been recommended for promotion to the grades of CPT through LTC by a mandatory promotion board and who is on an approved promotion list shall be promoted without regard to the existence of vacancy or placement against a position of a higher grade under the policy memorandum on the date on which the officer completes the maximum years of service as specified in section 14304(a), unless the officer has voluntarily delayed or declined the promotion.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was ordered to active duty on or about 6 August 2009 in support of OEF under the provisions of Title 10, U.S. Code, section 12302, and continues to serve on active duty today.  His DOR to MAJ was 8 April 2003.  He was selected for promotion to LTC by the Mandatory DA Promotion Selection Board that was approved in December 2009.

2.  ARNG officers mobilized under the provisions of Title 10, U.S. Code, sections 12301(a), 12302, and 12304, and who are on an approved mandatory selection 

board promotion list who reach their maximum time in grade (i.e., for major this is 
7 years), will be promoted without regard to a position vacancy unless that officer has voluntarily delayed or declined promotion.  

3.  On 8 April 2010,when he reached his maximum time in grade, the applicant was still in the ARNG.  He did not request retention in a sanctuary status until    20 April 2010.  He was not ordered to active duty under sanctuary until 26 May 2010.  

4.  Although the applicant was notified of this promotion on 21 January 2010 and did not respond, there is no evidence of record showing that the applicant voluntarily delayed or declined promotion.

5.  Notwithstanding the ARNG's advisory opinion, in view of the foregoing the applicant’s records should be corrected to show he was promoted to LTC with an effective date and DOR of 8 April 2010, along with entitlement to the appropriate back pay and allowances.

BOARD VOTE:

___x_____  ___x_____  __x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 showing he was promoted to LTC/O-5 with an effective date and DOR of 8 April 2010.

2.  In addition, the Defense Finance and Accounting Service shall be notified of the Board's determination and remit payment of all back pay (i.e., pay and 

allowances, less any withholdings and/or deductions) that may be 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)                                         AR20100024882



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ABCMR Record of Proceedings (cont)                                         AR20100024882



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