IN THE CASE OF:	  

		BOARD DATE:	  1 December 2011

		DOCKET NUMBER:  AR20110003856 


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 captain (CPT) in the Michigan Army National Guard (MIARNG) from 5 May 2010 to 12 November 2009.

2.  The applicant states he had an eligibility date of 12 August 2009 for promotion to CPT.  His promotion paperwork was forwarded on 14 August 2009 but the promotion paperwork was not submitted to the brigade.  Therefore, the September 2009 MIARNG State board did not include his promotion packet.  The packet was then received and considered by the October 2009 board.  Accordingly, the State issued him a promotion order on 22 October 2009.  A month later, his packet was forwarded to the National Guard Bureau (NGB) for extension of Federal recognition.  In December 2009, his packet was returned to the MIARNG for correction.  However, the State neither made the corrections nor sent it back to the NGB.  His packet was ultimately resubmitted to the NGB in February 2010.  He received Federal recognition, nearly three months later, with an effective date and DOR as 5 May 2010.  It is clear that these administrative errors denied earlier promotion.  

3.  The applicant provides:

* Multiple email exchange between the State and the NGB
* NGB Special Orders Number 91 AR
* MIARNG Orders 034-015 (promotion to CPT)
* MIARNG Orders 034-014 (revocation of promotion to CPT)

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a second lieutenant in the MIARNG and executed an oath of office on 12 August 2005.  He subsequently entered active duty and completed the Aviation Basic Officer Leader Course from 11 March 2006 to 31 May 2007.

2.  He was promoted to first lieutenant and awarded Federal recognition for this promotion with an effective date and DOR as 12 August 2007.

3.  He entered active duty for special work on 10 November 2008.  He completed the Medical Evacuation Doctrine Course from 2 to 13 February 2009.  He was honorably released from active duty on 20 August 2009.

4.  He entered active duty on 21 August 2009 in support of Operation Iraqi Freedom and subsequently served in Iraq from 17 October 2009 to 13 August 2010.  He was assigned to Company C, 3rd Battalion, 238th Aviation Regiment.

5.  On 5 November 2009, while he was deployed, the MIARNG published Orders 309-030 promoting him to CPT effective 22 October 2009.  

6.  On 3 February 2010, while he was still deployed, the MIARNG published Orders 034-014 revoking the previous orders (Orders 309-030) that promoted him to CPT.

7.  Also on 3 February 2010, the MIARNG published Orders 034-015 again promoting him to CPT with an effective date and DOR of 22 October 2009.

8.  On 6 May 2010, the NGB published Special Orders Number 91 AR extending him Federal recognition for promotion to CPT with an effective date and DOR as 5 May 2010.

9.  He was honorably released from active duty on 8 September 2010 to the control of the MIARNG.

10.  An advisory opinion was obtained from the NGB on 27 October 2011 in the processing of this case.  An NGB official recommended partial approval of the applicant's request and stated that:

	a.  An email, dated 1 August 2011, from MIARNG shows the applicant's promotion packet for CPT was submitted to the Federal Recognition (FEDREC) Section on 24 November 2009.  The FEDREC Section returned the case without action on 2 December 2009 to the MIARNG to make corrections.  Documentation shows the MIARNG did not make the corrections or resubmit the promotion packet until 3 February 2010.  No statement was provided to explain why the applicant's packet was not immediately corrected and forwarded to FEDREC for processing.  

	b.  FEDREC has confirmed that the applicant's promotion to CPT was a unit vacancy promotion and was effective on 5 May 2010.  Title 10, U.S. Code (USC), section 14308f states "the effective date of a promotion of a Reserve commissioned officer of the Army who is extended Federal recognition in the next higher grade in the ARNG under section 307 or 310 of Title 32 shall be the date on which such Federal recognition in that grade is so extended."  Also, the Reserve Officer Personnel Management Act states, "the effective date of promotion and date of rank of an officer who is promoted under the position vacancy system is the date the Chief, NGB, extends Federal recognition…."

	c.  Even though the applicant’s promotion was a unit vacancy promotion, consideration should be given to the fact that the applicant was promoted late due to an administrative error.  Reasonable consideration can be given to the fact that the applicant could have been promoted to CPT as early as February 2010.  This would have been feasible if the State had made the necessary corrections once the promotion package was returned without action by FEDREC.  An NGB Form 89 (Proceedings of Federal Recognition on Examining Board) at the State level, dated 22 October 2009, recommended him for promotion.  MIARNG generated two separate orders promoting him to CPT, both with an effective date of 22 October 2009.  This suggests the State’s intent to promote the applicant to CPT as early as 22 October 2009.  

	d.  The delay in re-submitting his promotion packet was due to administrative error and was of no fault of his.  The MIARNG confirms a similar promotion packet (peer of the applicant) went before the same State board; the packet was processed simultaneously without issue and was also a UVP.  The peer received an effective date of 23 February 2010.  Consideration can be given to the circumstances and conclude that the applicant would have received the same effective date for promotion to CPT as his peer if the delay in processing his packet had not occurred.  If consideration is given to amending his promotion effective date, he should receive all back pay and allowances that may be due as a result of the potential correction.  The State concurs with this recommended course of action. 

11.  The applicant was provided with a copy of this advisory opinion and he concurred. 

12.  Title 10, USC, section 14308f (Effective date of promotion after federal recognition) states the effective date of a promotion of a reserve commissioned officer of the Army who is extended Federal recognition in the next higher grade in the ARNG under section 307 or 310 of Title 32 shall be the date on which such Federal recognition in that grade is so extended. 

13.  National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions) prescribes policies and procedures governing the appointment, assignment, temporary Federal recognition, Federal recognition, reassignment, and other personnel issues related to commissioned officers of the ARNG.  It states commissioned officers of the ARNG are 
appointed by the several States.  These appointments may be federally recognized by the Chief, NGB, under such regulations as the Secretary of the Army may prescribe and under the provisions of this regulation.  Officers who are federally recognized in a particular grade and branch shall be tendered an appointment in the same grade as Reserve commissioned officers of the Army with assignment to the ARNG, as provided by law.

14.  National Guard Regulation 600-100, chapter 8, provides for promotion of officers.  It states, in pertinent part, that the promotion of officers in the ARNG is a function of the State, and 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 promotion requirements.  Chapter 8 of this regulation states a commissioned officer must complete the required minimum years of promotion service prior to being considered for promotion and Federal recognition in the higher grade.  Promotion from 1LT to CPT requires a minimum of 2 years time in grade.  

DISCUSSION AND CONCLUSIONS:

1.  According to email traffic from the MIARNG, the applicant's promotion packet for CPT was submitted to the Federal Recognition Section on 24 November 2009 and that Section returned it for correction on 2 December 2009.  However, it appears the MIARNG did not make the corrections or return it on time.  The MIARNG ultimately resubmitted the promotion packet on 3 February 2010 without an explanation for this delay. 

2.  The Federal Recognition Section has confirmed the applicant's promotion to CPT was a Unit Vacancy Promotion and was effective on 5 May 2010.  By law, the effective date of a promotion of a Reserve commissioned officer of the Army who is extended Federal recognition in the next higher grade in the ARNG is the date on which such Federal recognition in that grade is so extended.  
3.  Nevertheless, although the applicant's promotion was a unit vacancy promotion, the delay in his promotion was not his fault.  He could have been promoted to CPT as early as February 2010.  This would have been feasible if the State had made the necessary corrections once the promotion package was returned without action.  The Federal Recognition Board recommended him for promotion on 22 October 2009 and the MIARNG generated two separate orders promoting him to CPT both with an effective date of 22 October 2009.  This suggests the State’s intent to promote him to CPT as early as 22 October 2009.  

4.  The delay in re-submitting his promotion packet was due to administrative error and was not his fault.  The MIARNG confirms a similar promotion packet (peer of the applicant) went before the same State board; the packet was processed simultaneously without issue and was a unit vacancy promotion.  The peer received an effective date of 23 February 2010.  It appears that the applicant would have received the same effective date for promotion to CPT as his peer if the delay in processing his packet had not occurred.  

5.  As a matter of equity, the applicant's effective date of promotion and date of rank should be corrected to 23 February 2010 with entitlement to all back pay and allowances as a result of the potential correction.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  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 partial relief.  As a result, the Board recommends that the state Army National Guard records and the Department of the Army records of the individual concerned be corrected by:

* amending NGB Special Orders Number 91 AR, dated 6 May 2010, to show he was extended Federal Recognition for promotion to CPT effective and with a date of rank of 23 February 2010
* paying to him all back pay and allowances due as a result of the above correction
2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to an effective date of promotion and a date of rank to CPT as 12 November 2009.



      _______ _   _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)                                         AR20110003856



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ABCMR Record of Proceedings (cont)                                         AR20110003856



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