BOARD DATE:	  30 August 2011

		DOCKET NUMBER:  AR20100026706 


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 that his date or rank (DOR) for captain (CPT) be adjusted from 24 September 2007 to 28 March 2007, the date he became eligible for promotion.

2.  The applicant states he submitted his promotion packet three times and due to the carelessness of his battalion S-1 and he received his promotion nearly 6 months after he became eligible.  He had been serving as a company commander since 31 June 2006 [sic] and he continued to serve as a company commander until he deployed in February 2008.  He had completed all of the requirements for promotion to include holding a position as a commander.

3.  The applicant provides a DA Form 67-9 (Officer Evaluation Report (OER)), two memoranda, and two orders.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  Having prior service in the U.S. Navy, the applicant's records show he was appointed as a second lieutenant in the Michigan Army National Guard and executed the oaths of office on 28 March 2003.  He was assigned to the 1463rd Transportation Company, Wyoming, MI. 

3.  He was promoted to the rank of first lieutenant (1LT) on 28 March 2005.

4.  Michigan Army National Guard Orders 200-026, dated 19 July 2007, promoted him to the rank of CPT effective 18 July 2007.  These orders state, in pertinent part "You will not wear new rank until Federal recognition is confirmed.  You will not be paid at the new rank until Federal recognition is confirmed.  The effective DOR will be the date permanent Federal recognition is extended."  These orders show the effective date of 18 July 2007 is lined through and 24 September 2007 is date-stamped beside the effective date.

5.  The National Guard Bureau (NGB) Federal recognition orders are not available; however, an NGB memorandum, dated 24 September 2007, shows he was promoted to the rank of CPT as a Reserve of the Army with an effective date and DOR of 24 September 2007.

6.  An undated advisory opinion was received in the processing of this case from the Department of the Army Office of the Deputy Chief of Staff, G-1.  The Chief, Officer Selection Board Policy Branch, recommended disapproval of the applicant's request to adjust his DOR from 24 September 2007 to 28 March 2007.  The official stated the applicant's State promotion occurred on 19 July 2007 and he received Federal recognition on 27 September 2007 [sic].  The official further stated that office did not believe an adjustment to his DOR was warranted.

7.  On 3 May 2011, the applicant was provided a copy of the advisory opinion for comment, but he did not respond.

8.  On 29 July 2011, an advisory opinion was obtained from the NGB, Chief, Personnel Policy Division.  The advisory official recommended disapproval of the applicant's request and opined, in pertinent part, the applicant indicated the State failed to submit the promotion packet in a timely manner at the time he became eligible to be promoted to CPT.  Eligibility for promotion does not mean automatic promotion to the next highest grade.  The 54 States and Territories have a significant role in managing Federal recognition of ARNG officers to include establishing and conducting of Federal recognition boards for unit vacancy promotions.  Mere delay in processing an application in connection with a unit vacancy promotion reflects the level of resources and personnel allocated to the task by the State.  In this case, the State simply did not act as quickly as the applicant would have liked.  The State concurs with this recommended course of action.

9.  On 1 August 2011, the applicant was provided a copy of the advisory opinion for comment, but he did not respond.

10.  The applicant provides a DA Form 67-9, dated 1 July 2007, that shows he received an OER covering the period 1 July 2006 through 30 June 2007 for service in the duty position of company commander.

11.  National Guard Regulation 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions), paragraph 8-1, states the promotion of officers in the Army National Guard is a function of the State.  As in original appointments, a commissioned officer promoted by State authorities has a State status in the higher grade under which to function.  However, to be extended Federal recognition in the higher grade, the officer must have satisfied the requirements prescribed herein.  Promotion from 1LT to CPT requires a minimum of 2 years time in grade.

12.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers), table 2-1, states the minimum time in grade for promotion to CPT is 2 years (unit vacancy promotion) and the maximum is      5 years (mandatory promotion).

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was promoted to 1LT on 28 March 2005.  He was eligible for promotion to CPT, as a unit vacancy promotion, on 28 March 2007.  

2.  His unit published promotion orders on 19 July 2007 promoting him to the rank of CPT.  The orders stated the effective date/DOR would be the date Federal recognition was extended.  He was extended Federal recognition and promoted to the rank of CPT with an effective date/DOR of 24 September 2007.

3.  The eligibility for promotion does not mean automatic promotion to the next highest grade.  National Guard promotions are a function of the State and the State establishes and conducts Federal recognition boards for unit vacancies.  The time it took to process his Federal recognition reflects the level of resources and personnel allocated to the task by the State and not an error on the part of the unit.  Therefore, he is not entitled to 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 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)                                         AR20100026706



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ABCMR Record of Proceedings (cont)                                         AR20100026706



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