IN THE CASE OF:	  

		BOARD DATE:	  6 March 2012

		DOCKET NUMBER:  AR20110013483 


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 that her date of rank to lieutenant colonel (LTC)/O-5 be adjusted from 31 August 2010 to 4 October 2008.

2.  The applicant states she was selected for a battalion commander's position on 15 May 2008 and assigned to the position on 4 October 2008.  The State of Texas was over strength on AGR O-5 positions and the State did not get their control grade O-5 positions corrected until late 2010.  She contends that she was assigned to a valid O-5 position as of 4 October 2008 and was in an Area of Concentration (AOC) qualified for that specific position as of 15 May 2008.

3.  The applicant provides promotion orders, National Guard Bureau (NGB) Form 0122E (NGB Federal Recognition Orders), and reassignment orders.  

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed a Reserve commissioned officer on 19 May 1990.  She was promoted to major (MAJ)/O-4 on 18 August 2004 and she is currently serving in an Active Guard/Reserve (AGR) status in the rank of LTC.

2.  Texas Army National Guard (TXARNG) Orders Number 347-1135, dated 
12 December 2008, as amended by TXARNG Orders Number 050-1086, dated 19 February 2009, directed her transfer from Logistics Officer, HHC, 36th Infantry Division to Commander, HHC, 536th Brigade Support Battalion (BSB), effective 
4 October 2008.

3.  On 13 April 2010, TXARNG published Orders Number 103-1031 promoting her to LTC with an effective date of 18 March 2010 and a date of rank of
18 August 2004 (sic).  The orders stated, "Individual will not be paid for promoted rank until Federal recognition is confirmed."

4.  On 1 September 2010, the NGB published Special Orders Number 191 AR extending her Federal recognition as a LTC, effective 31 August 2010.

5.  In connection with the processing of this case, an advisory opinion was obtained from the NGB, Chief, Personnel Policy Division.  This office recommends disapproval of the applicant's request and states the following:

	a.  The Soldier states she was assigned to an O-5 position as of 4 October 2008.  TXARNG has confirmed the Soldier was eligible for promotion and was in a valid O-5 slot per their orders number 050-1086, dated 19 February 2009.  National Guard Regulation 600-100, section 8-1 states "the promotion of officers in the Army National Guard is a function of the State."

	b.  An email (not provided to the Board) from the TXARNG indicates there were no LTC control grades available prior to the date the Soldier was promoted to LTC on 31 August 2010.  

	c.  According to NGB Officer Policy Section, the fact that the Soldier may have been eligible for promotion and in an O-5 position does not negate the fact that the State did not have a LTC/O-5 controlled grade available at the time in question and she therefore was not promoted.  Had the officer been selected by a Department of the Army promotion board and reached maximum time in grade, it is possible that the Soldier's date of rank would have been amended, not her promotion effective date.  Evidence has not been provided supporting this possibility.  

	d.  The State concurs with this recommendation.

6.  The advisory opinion was forwarded to the applicant for information and to provide her the opportunity to submit comments or a rebuttal.  She responded and suggested the Board request information from the Texas AGR services on the number of AGR MAJs and LTCs that were promoted between 5 October 2008 and 31 August 2010 and how many of those AGR Soldiers promoted were battalion commanders.

7.  She also stated that she was selected for a battalion command in May 2008 but was not placed into the slot until October 2008.  She completed almost two years at the 536th BSB as a MAJ and deployed to Iraq in that rank and as a battalion commander returning in October 2010.  She further stated that she understands the issue with the availability of controlled grades but wanted to ensure that every option was covered and looked at prior to this Board's decision.

8.  National Guard Regulation 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions), Chapter 8 (Promotion for Other Than General Officers), states the promotion authority of officers in the Army National Guard is a function of The Adjutant General (TAG).  If TAG chooses not to promote an officer, he or she is not obligated to do so.  AGR control grade authorization must be available prior to promotion of AGR officers to any grade above captain.

9.  Title 10, U.S., Section 14311(e)(2), specifies that delay because of limitations on officer strength in grade or duties to which assigned under regulations prescribed by the Secretary of Defense, the promotion of a Reserve officer on the Reserve active-status list who is serving on active duty, or who is on full-time NG duty for administration of the Reserve or the NG, to a grade to which that strength limitations apply shall be delayed if necessary ensure compliance with those strength limitations.  The delay shall expire when the Secretary determines that the delay is no longer required to ensure such compliance.  The section also specifies that promotion shall be delayed while an officer is on duty unless the Secretary of the military department concerned determines that the duty assignment of the officer requires a higher grade than the grade currently held by the officer.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that her date of rank to LTC should be adjusted to 4 October 2008 has been carefully considered.  

2.  In her response to the NGB advisory opinion, she suggested the Board request information from the Texas AGR services pertaining to AGR MAJs and LTCs promotions; however, the Army Board for Correction of Military Records (ABCMR) decides cases on the evidence of record.  It is not an investigative body.  Additionally, the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

3.  The evidence shows that she was eligible for promotion to LTC on 4 October 2008; however, as stated in the NGB advisory opinion, the State of Texas did not have LTC/O-5 controlled grade available at the time she became eligible for promotion.  Army policy mandates that AGR control grade authorizations must be available prior to promotion of AGR officers to any grade above captain.
4.  In the absence of evidence showing there were control grade authorizations at the time she became eligible for promotion, she is not entitled to the requested relief.

5.  TXARNG Orders Number 103-1031 appear to show an incorrect date of rank to LTC.  The applicant should request to the TXARNG a review of these orders for accuracy.

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)                                         AR20110013483





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ABCMR Record of Proceedings (cont)                                         AR20110013483



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