IN THE CASE OF:	  

		BOARD DATE:	  9 August 2011

		DOCKET NUMBER:  AR20100027948 


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 of his effective date of promotion to the rank of lieutenant colonel (LTC) to 5 May 2009. 

2.  The applicant states his Federal recognition to the rank of LTC was not backdated to the promotion eligibility date as stated in Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers).  He states that he was on an approved promotion list at the time he was mobilized and reached his maximum time in grade on 18 December 2008.  He adds that he was selected on the LTC Army Promotion List (APL) 2008 board and he was promoted to LTC on 18 November 2010.

	a.  He further states that Army Regulation 135-155 specifies a major will serve a maximum of 7 years time in grade before promotion to LTC.

  	b.  He states he did not sign a promotion delay waiver.  He adds that he did sign and submit an acknowledgment of being promoted due to reaching maximum time in grade and that if the officer does not occupy a position at the higher grade within 6 months after redeployment the officer will be involuntarily transferred to the Individual Ready Reserve.

	c.  He states that Title 10 U.S. Code, sections 14304(b) and 14316(d), states that mobilized Reserve Component officers who have been recommended for promotion by a mandatory promotion board and are on an approved promotion list will be promoted without regard to existence of vacancy or placement against a position in the higher grade when they complete the maximum years of service specified in section 14301(a).

	d.  He adds that the Director, Army National Guard memorandum, dated 30 January 2004, established the promotion policy for promotion of mobilized National Guard officers.  He states that it provides that mobilized officers who reach maximum time in grade and have neither delayed or declined their promotion will be promoted whether or not assigned against a position of the higher grade.

	e.  He states he was mobilized on 5 May 2009 and sent to Iraq.  He returned and departed back to Iraq on another set of orders on 6 July 2009.  He states he was Reserve Officer Personnel Management Act (ROPMA) select, maximum time in grade and in a promotion status.

3.  The applicant provides National Guard Bureau (NGB) Special Orders Number 254; Joint Force Headquarters Indiana Orders 177-001; U.S. Army Human Resources Command Orders A-04-911338; Personnel Policy and Readiness Division (NGB-ARH) Memo #04-0025, subject:  Clarification of Policy to Promote Department of the Army (DA) Select Mobilized Officers at Maximum Time in Grade; four pages of miscellaneous printouts; and a letter promoting him to LTC.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was discharged as an enlisted Soldier to accept an appointment as an Army National Guard officer in the rank of second lieutenant in the Infantry Branch effective 27 May 1989.  He was promoted to major on 18 December 2001.

2.  His DD Form 214 for the period 6 July 2009 to 30 September 2010 shows he served on active duty in support of Operation Iraqi Freedom.

3.  U.S. Army Human Resources Command Orders A-09-026568, dated 29 September 2010, ordered the applicant to active duty for 365 days for contingency operation for active duty operational support (CO-ADOS) effective 1 October 2010. 

4.  NGB Special Orders Number 254 AR, dated 18 November 2010, show Federal recognition was extended to him for the rank of LTC effective 18 November 2010.  There is no evidence in his records showing he was assigned to an authorized LTC Active Guard Reserve (AGR) or other LTC position in the Indiana ARNG prior to this date.

5.  In the processing of this case an advisory opinion was provided by the Chief, Personnel Policy Division, NGB.  The advisory official recommended disapproval of the applicant's request since as an AGR Soldier, he was not entitled to be promoted until placed in a position at the higher grade.

6.  The NGB indicated per Army Regulation 135-155, paragraph 4-17, the term promotion eligibility date is no longer used with respect to officers other than warrant officers and second lieutenants with the correct terminology being that of DOR.  The NGB stated the applicant was promoted to the rank of major on 18 December 2001 under the position vacancy system.

7.  The NGB continued by stating the applicant was DA select for promotion to the grade of LTC on 31 December 2008.  The applicant was mobilized to Iraq as part of an advanced party, returned to the Continental U.S. and was mobilized to Iraq with the main body on 6 July 2009. 

8.  The NGB stated that prior to the applicant's mobilization he was serving as a Title 32 AGR Soldier (state funded) and planned to return to an AGR status upon release from active duty (REFRAD).  The NGB stated that upon REFRAD the Indiana ARNG did not have an LTC position available.  The applicant was informed that he would be promoted immediately if he were to resign from the AGR program and transfer to the Individual Ready Reserve from the Indiana ARNG.  The NGB stated that the applicant chose not to resign from the AGR program.

9.  The NGB stated that the applicant subsequently accepted a Title 10 ADOS tour (U.S. Army Human Resources Command Orders A-09-026568, dated 29 September 2010).  The Indiana ARNG promoted him to LTC against the ADOS billet effective 18 November 2010.  NGB stated that because the applicant initially chose not to resign from the AGR program, he was not eligible to be promoted until the later date.  The NGB indicated the State concurred with their recommendation.

10.  On 29 March 2011, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not provide a response.

11.  In a memorandum for MILPO's, dated 1 September 2004, the NGB stated that the mobilization promotion policy applied to ARNG officers recommended for promotion to the grades of captain through LTC who are mobilized under the provisions of Title 10, U.S. Code, sections 12301(a), 12302 and 12304.  A clarification memorandum to this policy, dated 1 September 2004, indicated that in the event the State either did not have or did not desire to promote the officer or did not have a vacant position at the higher grade against which to promote the officer, the officer would sign a statement acknowledging that he or she was being promoted due to reaching maximum time in grade and that if the officer did not occupy a position at the higher grade within 6 months after redeployment the officer would be involuntarily transferred to the Individual Ready Reserve.

12.  Army Regulation 135-155, paragraph 4-15(c), states in part that AGR officers who have been selected for promotion and are not assigned/attached to a position calling for a higher grade will receive a delay of promotion without requesting such action.  AGR officers will remain on the promotion list and serve on active duty in the AGR program until they are:

	a.  removed from the promotion list under paragraph 3-18;

	b.  promoted to the higher grade following assignment/attachment to an AGR position calling for the higher grade; or

	c.  promoted to the higher grade, if eligible, following release from active duty.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant is attempting to apply promotion provisions for Reservists mobilized in support of contingency operations.  The applicant technically was a mobilized Guardsman when he reached his maximum time in grade as a major.  Therefore, he technically was covered under the NGB promotion memorandum.  However, since he did not resign his Title 32 AGR position, he was expected to return to that full-time position when he was REFRAD.  If he had been promoted under the NGB policy, he would have lost his full-time position.  As such, when he chose not to resign from the AGR program, he forfeited his right to be promoted under the NGB promotion policy.

2.  The applicant was DA selected for promotion to the grade of LTC on 31 December 2008.  As an AGR officer he could only be promoted to LTC while remaining in the AGR program if he were assigned to a higher graded AGR position.  The NGB stated there was no AGR LTC position available for him to be promoted into.  As long as he chose not to resign from the AGR program he was not in a promotable status.  While he contends he did not sign a delay waiver, as an AGR officer that was not required as he received a delay of promotion without requesting such action. 

3.  Evidence indicates the applicant later resigned from the AGR program, accepted an ADOS position, and was promoted to LTC against that position effective 18 December 2010.
4.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20100027948



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ABCMR Record of Proceedings (cont)                                         AR20100027948



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