IN THE CASE OF:	  

		BOARD DATE:	  26 May 2011

		DOCKET NUMBER:  AR20100028247 


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) for promotion to major (MAJ)/pay grade O-4 from 27 May 2010 to 7 November 2009 with all back pay and allowances due as a result of the correction.

 2.  The applicant states he was promoted to captain (CPT)/pay grade O-3 on
28 December 2001.

   a.  He was selected for promotion to MAJ by the Department of the Army (DA) Promotion Board on 9 July 2009.  Following his selection for promotion, he was mobilized.  However, prior to issuance of his mobilization orders, he was not notified by his command and/or afforded the opportunity to request promotion to pay grade O-4.

   b.  He was mobilized as the Adjutant/S-1, 105th Engineer Battalion, on
7 November 2009, and he subsequently deployed to Kandahar, Afghanistan.

   c.  He was selected for State promotion in the Army National Guard (ARNG) with follow-on Federal recognition (FEDREC) orders, effective 27 May 2010.

   d.  He states that DA promotion policy for officers selected for promotion who are mobilized provides for automatic eligibility for promotion by the date of the mobilization order.  Specifically it states, "ARNG officers recommended for promotion to the grades of captain through lieutenant colonel mobilized under the provisions of Title, United States 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 (TIG), will be promoted without regard to a position vacancy unless that officer has voluntarily delayed or declined promotion."

   e.  He states that he reached his maximum TIG for CPT on 28 December 2008, which was prior to the date he was mobilized, and there was no delay of promotion in effect prior to the date his mobilization orders were issued.  As a result, his DOR for promotion to MAJ should be established on the first eligible retroactive date, which was 7 November 2009.

3.  The applicant provides copies of a promotion policy memorandum, his qualification record, mobilization orders, and two promotion documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior honorable enlisted service in the U.S. Army and Army National Guard of the United States (ARNGUS) from 8 June 1987 through
2 August 1996.  He attained the rank of staff sergeant/pay grade E-6.

2.  The applicant was appointed as a Reserve commissioned officer in the ARNGUS and extended FEDREC as a second lieutenant/pay grade O-1 in the North Carolina ARNG (NCARNG) effective 3 August 1996.

3.  The applicant was promoted to CPT (O-3) effective 28 December 2001.

4.  In support of his request the applicant provides the following documents:

	a.  National Guard Bureau (NGB), memorandum, dated 1 September 2004, subject:  Clarification of Policy to Promote DA Select Mobilized Officers at Maximum Time in Grade (NGB-ARH memo #04-0025), that provides clarification to procedures for promoting mobilized ARNG officers who are selected for promotion by a DA mandatory promotion board (as quoted by the applicant).

	b.  State of North Carolina, Office of the Adjutant General, Raleigh, NC, Orders 292-135, dated 19 October 2009, that ordered the applicant to active duty as a member of his Reserve Component unit on 7 November 2009 for a period not to exceed 400 days.

   c.  NGB, Special Orders Number 110 AR, dated 27 May 2010, that announced the extension of FEDREC in the ARNG of the applicant's promotion to MAJ, effective 27 May 2010.

5.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB.

	a.  The advisory official recommends approval of the applicant's request for adjustment of his DOR to MAJ to 7 November 2009.

   b.  Upon reaching the maximum TIG of 7 years, the applicant's records went before the 2008 DA Board for consideration for selection for promotion to MAJ.  The applicant was non-selected.  He reached his maximum TIG on 28 December 2008.

   c.  The following year, the applicant's records went before the 2009 DA Board for consideration for selection for promotion to MAJ.  He was selected by the board on 9 July 2009.  The applicant was not promoted by the State due to lack of a position in the higher rank.

   d.  The applicant was mobilized in support of Operation Enduring Freedom from 7 November 2009 to 2 December 2010.  The State promoted the applicant to MAJ on 27 May 2010 while he was deployed. 

   e.  The applicant was eligible for promotion under the provisions of NGB, memorandum, dated 1 September 2004, subject:  Clarification of Policy to Promote DA Select Mobilized Officers at Maximum Time in Grade, but he was not afforded the opportunity to request promotion prior to deployment.

   f.  The NCARNG concurs with the adjustment of the applicant's DOR to MAJ to 7 November 2009.

6.  The applicant was provided a copy of the NGB advisory opinion in order to have the opportunity to comment; however, a response was not received.

7.  National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions) provides procedures for processing applications for FEDREC.

   a.  Paragraph 8-1 states the promotion of officers in the ARNG 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.

	b.  Paragraph 8-2b states that FEDREC will be accomplished only when an appropriate Modified Table of Equipment or Table of Distribution and Allowances position vacancy in the grade exists in the unit.

8.  Title 10, U.S. Code, section 14038, paragraph (f), states the effective date of a promotion of a Reserve commissioned officer of the Army who is extended FEDREC in the next higher grade in the ARNG under section 307 or 310 of Title 32 shall be the date on which FEDREC in that grade is so extended.  In addition, the Reserve Officer Personnel Management Act, section 1-2, provides that the effective date of promotion and DOR for an officer who is promoted under the position vacancy system will be the date the Chief, NGB, extends FEDREC.

9.  NGB memorandum, dated 1 September 2004, subject:  Clarification of Policy to Promote DA Select Mobilized Officers at Maximum Time in Grade (NGB-ARH memo #04-0025), provides clarification to procedures for promoting mobilized ARNG officers who are selected for promotion by a DA mandatory promotion board.  In pertinent part, it states:

   a.  "ARNG officers recommended for promotion to the grades of captain through lieutenant colonel mobilized under the provisions of Title, United States Code, sections 12301(a), 12302, and 12304, and who are on an approved mandatory selection board promotion list who reach their maximum [TIG] (first lieutenant = 5 years, captain = 7 years, major = 7 years) will be promoted without regard to a position vacancy unless that officer has voluntarily delayed or declined promotion."

   b.  "In the event the State either does not desire to promote the officer or does not have a vacant position at the higher grade against which to promote the officer, the officer will sign a statement acknowledging that he or she is 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.  The signed statement will be included in the packet sent to NGB for Federal recognition."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he was promoted to MAJ (O-4) in the ARNGUS and NCARNG effective and with a DOR of 7 November 2009 and entitlement to all back pay and allowances due as a result of the correction because he was eligible for promotion; however, his promotion was delayed by the State through no fault of his own.

2.  Records show the applicant was promoted to CPT (O-3) on 28 December 2001 and he reached his maximum TIG for CPT on 28 December 2008.

3.  The applicant was selected for promotion to MAJ by the DA Board on 9 July 2009; however, he was a not promoted by the State due to lack of a position in the higher rank.

   a.  The applicant was mobilized in support of Operation Enduring Freedom on 7 November 2009 and the State promoted him to MAJ on 27 May 2010. 

   b.  The applicant was eligible for promotion under the provisions of the NGB policy to promote DA select mobilized officers at maximum TIG.  However, the applicant was not afforded the opportunity to request promotion prior to his deployment.

	c.  Therefore, in view of the foregoing and as a matter of equity, it would be appropriate to correct the applicant's records to show he was promoted to MAJ (O-4) in the ARNGUS and NCARNG effective and with a DOR of 7 November 2009.

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 Department of the Army records of the individual concerned be corrected by:

	a.  showing he was promoted to the rank of MAJ (O-4) effective and with a DOR of 7 November 2009, and

	b.  granting him FEDREC in the rank of MAJ (O-4) effective and with a DOR of 7 November 2009.


2.  As a result of the above corrections, the Defense Finance and Accounting Service shall be notified of the Board's determination to remit all back pay
(i.e., pay and allowances, less any withholdings and/or deductions) that may be due as a result of the 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)                                         AR20100028247



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ABCMR Record of Proceedings (cont)                                         AR20100028247



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