BOARD DATE:	  27 October 2011

		DOCKET NUMBER:  AR20110004741 


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, reconsideration of the previous request to change his date of rank (DOR) to lieutenant colonel (LTC) from 21 October 2009 to 14 January 2009.

2.  The applicant states the Discussions and Conclusions portion of his previous Army Board for Correction of Military Records (ABCMR) Record of Proceedings noted he had signed a letter requesting a delay in promotion on 19 February 2009 after mobilizing and that there was no evidence showing exactly when he accepted promotion.  He now has new evidence, in the form of a letter from his former battalion commander, which shows he verbally expressed his desire to be promoted once the unit was mobilized under Title 10 U.S. Code (USC).

3.  The applicant provides:

* His previous ABCMR Record of Proceedings
* A memorandum from his former battalion commander
* A memorandum from the J1, State of North Carolina, Department of Crime Control and Public Safety Joint Force Headquarters, North Carolina Army National Guard (NCARNG)

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20100008365, on 29 April 2010.
2.  The applicant's record shows that following a period of service in the NCARNG as an enlisted Soldier, he was commissioned a second lieutenant in the NCARNG on 7 May 1988.  He served in a variety of positions with increasing responsibility and was subsequently promoted to first lieutenant and then captain.

3.  He was promoted to major on 14 January 2002.

4.  He was selected for promotion to LTC by a Department of the Army (DA) Mandatory Selection Board that recessed on 28 September 2007.

5.  On 23 January 2008, his voluntary request for a delay of his promotion to the rank of LTC as a USAR and ARNG officer was approved.

6.  Orders 298-031 issued by the State of North Carolina, Office of the Adjutant General, Raleigh, NC, on 24 October 2008, ordered the applicant to active duty for training in the rank of major under the provisions of Title 32 USC for the period 1 December 2008 to 10 February 2009 for pre-mobilization training.

7.  Orders 332-533 issued by the State of North Carolina, Office of the Adjutant General, Raleigh, NC, on 27 November 2008, ordered the applicant to active duty as a member of his unit in support of Operation Iraqi Freedom in the rank of major under the provisions of Title 10 USC effective 11 February 2009 for a period not to exceed 400 days.

8.  On 19 February 2009, the applicant again voluntarily elected to request a delay of promotion to the rank of LTC as a USAR and ARNG officer.

9.  The applicant's record is void of any evidence showing when he accepted   his promotion.  However, Orders 292-848 issued by State of North Carolina, Department of Crime Control and Public Safety, Joint Force Headquarters, Raleigh, NC on 19 October 2009, promoted the applicant to LTC, effective 19 October 2009, with a DOR of 19 October 2009.  These orders stated the officer was selected by a Reserve Component selection board and elected to accept promotion to the next higher grade.

10.  A memorandum rendered by Chief Personnel Division, National Guard Bureau (NGB), Arlington, VA, dated 21 October 2009, Subject:  Promotion as a Reserve Commissioned Officer of the Army promoted the applicant to LTC in the USAR, effective 21 October 2009, with a DOR of 21 October 2009.

11.  Departments of the Army and the Air Force NGB, Washington, DC Special Orders Number 255 AR, dated 21 October 2009, extended the applicant Federal Recognition in the rank of LTC, effective 21 October 2009.

12.  The applicant's record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows he was ordered to active duty in support of Operation Iraqi Freedom on 11 February 2009 and released from active duty on 2 May 2010.  This form also shows his effective date of promotion to LTC as 21 October 2009.

13.  In the processing of the original case, an advisory opinion, dated 1 February 2010, was provided by the Chief, Personnel Division, NGB.  The applicant was provided a copy of this opinion and given 30 days to submit matters in rebuttal; however, the applicant has not responded.  The NGB recommended the applicant's DOR and effective date of promotion to LTC be corrected to 
11 February 2009, the date of his mobilization under the provisions of NGB-ARH memorandum #04-0025.  NGB stated that according to the memorandum officers mobilized under Title 10 USC who are on an approved mandatory selection board promotion list who reach their maximum time in grade (TIG) (major - 7 years) will be promoted without regard to the existence of a vacancy unless that officer has voluntarily delayed or declined promotion.  

14.  A memorandum, dated 30 January 2004, from the NGB states mobilized officers who reach maximum time in grade and have neither delayed nor declined their promotion will be promoted whether or not assigned against a position of the higher grade.  This memorandum also states mobilized officers who are promoted because they have reached their maximum TIG (major - 7 years) and who are not in a position of the higher grade within six months after demobilization, will be transferred to the Individual Ready Reserve.

15.  A memorandum, dated 1 September 2004, from the Chief of Personnel Policy and Readiness Division, NGB, Subject: Clarification of Policy to Promote DA Select Mobilized Officers at Maximum Time in Grade (NGB-ARH memorandum #4-0025), states that ARNG officers recommended for promotion to the grades of captain through LTC mobilized under the provisions of Title 10, USC, sections 12301(a), 12302, and 12304 and who are on an approved mandatory selection board promotion list who reach their maximum TIG (major - 7 years) will be promoted without regard to the existence of a vacancy unless that officer has voluntarily delayed or declined promotion.

16.  The applicant provides a memorandum from his former battalion commander, addressed to the ABCMR and dated 23 September 2010, wherein he states that during the unit's pre-mobilization the applicant verbally expressed his desire to be promoted to LTC once the unit was in Title 10 USC status.

17.  The applicant provides a memorandum from the J1 of the State of North Carolina, Department of Crime Control and Public Safety Joint Force Headquarters, addressed to the ABCMR and dated 28 September 2010, wherein he recommends partial approval of the applicant's request.  The J1 explains the applicant signed the delay memorandum, dated 19 February 2009 (8 days after he was mobilized), because it was required by the NCARNG G1 in order to submit his promotion packet to the NGB.  He adds that it is a State requirement for all DA Select officers submitting promotion packets as a standard business practice to ensure packets are not rejected by the NGB.  The J1 recommends granting the applicant relief with a DOR change backdated to his mobilization date of 11 February 2009, but no later than 19 February 2009 when he signed the required delay memorandum.

18.  Army Regulation 135-155 (Army National Guard and U.S. Army Reserve, Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) states officers who are selected for promotion to the next higher grade may voluntarily request delay of the promotion for a period of 1 year, which may be extended in 1-year increments to a maximum of 3 years from the date on which the officer would otherwise be promoted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DOR to LTC should be changed to 
14 January 2009, the date he met maximum TIG requirement for promotion.

2.  Upon his selection to LTC the applicant was approved for a 1-year delay in promotion commencing 23 January 2008.

3.  When the applicant was mobilized on 11 February 2009 he was eligible to be promoted without regard to a position vacancy unless he voluntarily delayed or declined promotion.  Therefore, under the provisions of NGB-ARH memorandum, dated 30 January 2004, the applicant's earliest effective date and DOR would have been 11 February 2009.

4.  Both memoranda, dated 30 January 2004 and 1 September 2004, from the NGB stated that mobilized officers recommended for promotion to the grades of captain through LTC may be promoted without regard to a position vacancy unless that officer has voluntarily delayed or declined promotion.
5.  The applicant's former battalion commander attests that the applicant requested to be promoted immediately upon mobilization under Title 10 USC status (11 February 2009).

6.  The State J1 attests the applicant was required to sign the delay memorandum, dated 19 February 2009 (8 days after he was mobilized), as a matter of standard business practice as required by the NGB.

7.  In view of the foregoing and in the interest of equity, it would be appropriate to amend the applicant's DOR and effective date to LTC to 11 February 2009 and pay him all retroactive pay and allowances to which he is entitled as a result of this correction.

BOARD VOTE:

__x___  __x______  ____x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20100008365, dated 29 April 2010.  As a result, the Board recommends that all Department of the Army and State ARNG records of the individual concerned be corrected by:

	a.  Amending the following documents to show his DOR and effective date of promotion to LTC as 11 February 2009:

		(1)  State of North Carolina, Department of Crime Control and Public Safety, Joint Force Headquarters, Raleigh, NC, Orders 292-848, dated 19 October 2009;

		(2)  NGB, Arlington, VA, Promotion memorandum, dated 21 October 2009;

		(3)  Departments of the Army and the Air Force, NGB, Washington, DC, Special Orders Number 255 AR, dated 21 October 2009; and

		(4)  DD Form 214, dated 2 May 2010.
	b.  Paying him all retroactive pay and allowances he is entitled 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)                                         AR20110004741



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ABCMR Record of Proceedings (cont)                                         AR20110004741



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