IN THE CASE OF:
BOARD DATE: 27 March 2012
DOCKET NUMBER: AR20110008411
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 her date of rank (DOR) for major (MAJ)/O-4 to 1 March 2006.
2. The applicant states she was originally promoted to MAJ/O-4 by the State of Texas effective 1 March 2006. However, based on an overstrength of Active Guard Reserve O-4 positions, the National Guard Bureau (NGB) denied her promotion. She claims the State did not get control of and correct the O-4 situation until later in the year and a new promotion order was generated with an effective date of 11 December 2006. This triggered a Federal order with an promotion date of 1 March 2007. She claims she was assigned to a valid O-4 position as of 1 March 2006.
3. The applicant provides the following documents in support of her application:
* assignment orders, dated 24 February 2006
* area of concentration memorandum, dated 9 March 2006
* State promotion orders, dated 3 May and 8 December 2006
* Federal recognition orders, 5 March 2007
CONSIDERATION OF EVIDENCE:
1. The record shows the applicant was appointed as a second lieutenant in the United States Army Reserve (USAR) on 31 May 1997. She was promoted to first lieutenant on 30 November 1998 and captain on 1 December 2001. On 1 July 2005, she was assigned to the Texas Army National Guard (TXARNG).
2. The record contains TXARNG Orders 342-1187, dated 8 December 2006, which promoted to the applicant to MAJ/O-4. The original promotion date on the orders was 11 December 2006; this date was lined through and changed to 1 March 2007.
3. The record also contains NGB Special Orders Number 51, dated 5 March 2007, which promoted and granted Federal recognition to the applicant in the grade of MAJ/O-4 on 1 March 2007.
4. In connection with the processing of this case an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB, with the concurrence of the State. The advisory opinion recommended disapproval of the applicant's request. The opinion contains State confirmation that there were no MAJ/O-4 controlled grades available prior to the date the applicant was promoted to MAJ/O-4 on 1 March 2007. It further confirms that NGB policy provides that the fact a Soldier may be eligible and in a position does not negate the fact the State does not have controlled grades available. An exception that would allow an adjustment to the applicant's DOR would be if she had been selected by a Department of the Army board and reached her maximum time in grade which there is no evidence of in this case.
5. On 18 January 2012, the applicant was provided a copy of the NGB advisory opinion in order to have the opportunity to reply or rebut its contents. To date, she has failed to reply.
6. National Guard Regulation 600-100 (Commissioned Officers-Federal Recognition and Related Personnel Actions) provides procedures for processing applications for Federal recognition. Chapter 8 provides guidance on promotion for other than general officers and states the promotion of officers in the ARNG is a function of the State. Chapter 10 contains guidance on the Federal recognition process and states that Federal recognition is extended by the Chief, NGB.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that her promotion and Federal recognition as a MAJ/O-4 should have been accomplished on 1 March 2006 has been carefully considered. However, there is insufficient evidence to support this claim.
2. By regulation, ARNG officer promotions are a function of the State. Further, members must be assigned to and filling an authorized position in the promotion grade in order to be promoted. In addition, the State must have available controlled grades that support the promotion.
3. The NGB advisory opinion states TXARNG officials confirmed there were no MAJ/O-4 controlled grades available in the State until the date the applicant was promoted on 1 March 2007. Given the applicant's promotion was effected by the State within its regulatory discretion, there is an insufficient evidentiary basis to support granting 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) AR20110008411
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