IN THE CASE OF:	  

		BOARD DATE:	  5 June 2012

		DOCKET NUMBER:  AR20110014217 


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) and effective date for promotion to lieutenant colonel (LTC) to 31 October 2009, no later than the maximum years in grade (MYIG) as a major (MAJ).  

2.  The applicant states the governing regulation provides for the requested adjustment of his DOR and effective date for promotion to LTC.  He further states his request is in accordance with the findings and recommendations contained in an Inspector General (IG) report enclosed with his application.  He claims his request is based on the failure of the Minnesota Army National Guard (MNARNG) to manage its Active Guard Reserve (AGR) officer force structure as documented in the enclosed IG report.  

3.  The applicant provides 13 enclosures identified as supporting documents in his application to the Board in support of his request.  

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that after having had prior enlisted service in the U.S. Army Reserve (USAR) and ARNG, he was commissioned a Reserve second lieutenant on 22 December 1990, and he was appointed in the MNARNG.  He was promoted to MAJ/0-4 on 1 November 2002. 



2.  On 11 April 2011, The Adjutant General of the State of Minnesota published a memorandum, Subject: Promotion as a Reserve Commissioned Officer of the Army.  It indicated the applicant was selected for promotion to LTC effective 
11 April 2011 with a DOR of 31 October 2009 based on his promotion eligibility date (PED). 

3.  On 1 April 2011, Joint Force Headquarters-Minnesota Orders 091-1024, as amended by Order 119-1020, dated 29 April 2011, promoted the applicant to LTC, effective 1 April 2011, with a DOR of 31 October 2009.

4.  In connection with the processing of this case an advisory opinion was obtained from the National Guard Bureau (NGB) Chief, Personnel Policy Division.  This official recommends disapproval of the applicant's request.  According to the MNARNG, he was not promoted when he reached the MYIG because he was not assigned to an LTC position.  He was not assigned to a position because he was not determined to be the best qualified candidate among the available AGR Soldiers when the LTC positions became available.  Although the applicant was eligible for promotion the State did not have an LTC controlled grade available during the time in question.  Once controlled grade positions became available, the State utilized their selection process to place qualified officers into the positions.  

5.  The NGB advisory opinion further indicates the applicant is conflating two related, but distinct, concepts in DOR (eligibility for subsequent promotions) and promotion effective date (entitlement to pay).  The rationale for maintaining a separate DOR earlier than the promotion effective date is that this provides an AGR officer whose promotion was delayed due to controlled grade limitations the opportunity to catch up in his career progression with officers not subject to controlled grade limitations (that is, traditional officers or military technicians) who were promoted ahead of the AGR officer solely due to the impact of controlled grade limitations.  It is not intended to vest the AGR officer subject to the delay with a claim for compensation from the government for the period of delay.  The applicant's assertions that he would have been promoted prior to or at the time of the 2008 promotion list as his traditional National Guard peers in MTOE and TDA positions is speculative and even if true does not constitute an error or injustice given AGR officers and traditional Guardsmen are necessarily managed differently.  



6.  The NGB further opines the applicant's allegation that the MNARNG controlled allocations are arbitrary is supported only by anecdotes.  ARNG controlled grades are a function of law, not an arbitrary creation of either the ARNG or the State Adjutants General.  Controlled grades are allocated to the States by the ARNG Personnel Programs, Manpower, and Resources Division according to an objective process factoring in force structure, end strength, and other considerations.  The State Adjutants General retain full funding flexibility in the manner in which they distribute controlled grade allocations within their States, but this hardly renders such distribution arbitrary.  It is the prerogative of the Adjutant General to allocate scarce resources, including manpower resources such as AGR controlled grades according to the command priorities of his or her State.  That such allocation may appear arbitrary to a particular officer whose promotion is delayed due to controlled allocation constitutes neither error nor injustice.  

7.  On 19 April 2012, the applicant responded to the NGB advisory opinion.  He stated that in regard to the assertions that he was not best qualified for promotion once positions became available, an e-mail message from the battalion commander that indicates he could not be promoted due to controlled grades availability.  This, combined with his performance records as evidenced by the Officer Evaluation Reports (OERs) he provides which recommended his promotion ahead of peers, contradict the assertion that he was not best qualified.  He states that other than the involuntary delay memorandum, he was never counseled that he was not qualified, fully qualified or even best qualified for promotion, only that controlled grade issues were the reason he was not promoted.  

8.  The applicant further states regarding the NGB interpretation of Title 10 U.S. Code, Section 14311(1) and the Reserve Active Status List (RASL) that implies the process outlined in law, regulation and policy is actually used in promotion selections within the MNARNG.  He states that two e-mail messages he provides demonstrate his repeated attempts to document the arbitrary selection of officers for promotion selections within the MNARNG AGR program.  He asserts the RASL is not used and the MNARNG senior officer boards have directed unit vacancy promotions below the zone over fully qualified even best qualified officers which is his fundamental disagreement he has with the handling of his promotion.  He also disagrees with NGB’s interpretation of the regulatory guidance regarding promotion after an involuntary delay.  



9.  The applicant concludes his rebuttal by stating while he stipulates he agreed to willingly volunteer for AGR service and to continue this service with the full knowledge that his career would be impacted by controlled grade limitations, he did not knowingly volunteer to be a part of a promotion system that is capricious and unfair.  He requests that the Board right these errors and injustices.  

10.  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, in pertinent part, that the promotion of officers in the ARNG is a function of the State.  Chapter 10 contains guidance on the Federal recognition process and states, in pertinent part, that Federal recognition is extended by the Chief, NGB.

11.  Army Regulation 135-100 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the ARNG of the United States and of commissioned and warrant officers (WO) of the USAR.  

12.  Chapter 2, section III (Board Consideration) of Army Regulation 135-155, states that boards will convene each year and will consider officers on the RASL for promotion to captain through LTC without regard to vacancies in the next higher grade.  It also states, in pertinent part, that the first consideration for promotion will occur well in advance of the date the officer will complete the TIG requirements in table 2-1 or table 2-3, as appropriate.  Table 2-1 of this regulation outlines the service requirements for promotion and indicates that the MYIG requirement for promotion to MAJ is 7 years.  

13.  Chapter 4, section III (Dates of Promotion), Army Regulation 135-100 provides guidance on promotion dates.  It states, in pertinent part, that officers serving on active duty in an AGR status may be promoted to or extended Federal recognition in a higher grade provided the duty assignment/attachment of the officer requires a higher grade than that currently held by the officer.  AGR officers who have been selected for promotion and who are not assigned/attached to a position calling for a higher grade will receive a delay of promotion without requesting such action.  



14.  The same regulation further states AGR officers will remain on the promotion list and serve on active duty in the AGR program until they are removed from the promotion list, promoted to the higher grade following assignment/attachment to an AGR position calling for a higher grade, promoted to the higher grade, if eligible following release from active duty. It is also codified in the law that, in effect, if a RC officer’s promotion is adjusted to reflect a date earlier than the actual effective date of promotion, for example a DOR adjustment based on MYIG, this does not entitle him to additional pay or allowances.

15.  Paragraph 4-21 of Army Regulation contains guidance on promotion effective dates.  It states the effective date of promotion of AGR officers who have been selected for promotion and are not assigned/attached to a position calling for a higher grade AGR officers selected by a mandatory board will be promoted provided they are assigned/attached to a position in the higher grade.  An AGR officer who is selected for promotion by a mandatory promotion board, but who is not assigned/attached to a position in the higher grade will be promoted on the date of assignment/attachment to a higher graded position or the day after release from AGR status. The date of rank will be the date the officer attained maximum TIG or the date on which assigned/attached to a position in the higher grade, whichever is earlier. 

16.  10 USC 14304 provides the legal authority for eligibility for consideration for promotion based on MYIG provisions of the law.  Paragraph (a) states, in pertinent part, that officers shall be placed in the promotion zone and shall be considered for promotion to the next higher grade by a promotion board convened under section 14101(a) of this title, far enough in advance of completing the MYIG so that, if the officer is recommended for promotion, the promotion may be effective on or before the date on which the officer will complete those years of service.  This provision of the law establishes the MYIG for CPT going to MAJ as 7 years.  Paragraph (b) states, in effect, that a RC officer who is recommended for promotion to the next higher grade by a selection board the first time they are considered for promotion and who is placed on an approved promotion list shall be promoted, without regard to the existence of a vacancy, on the date on which the officer completes the MYIG specified in this law. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to correct the effective date of his promotion and DOR to LTC based on the 8 April 2011 findings and recommendations of the MNARNG IG has been carefully considered.  However, there is insufficient evidence to support this claim.   

2.  By law and regulation, the promotion of ARNG officers is a function of the State, as finally acknowledged by the office of the MNARNG IG as confirmed in the NGB advisory opinion.  Therefore, given the State confirms the applicant's promotion delay was not solely due to grade limitations, there is no basis to support a change to the effective date of his promotion.

3.  The effective date of the applicant's promotion effective date coincides with his assignment to an LTC position which is within the legal discretionary authority
of the State.  Further, the State promotion order complied with the MYIG provisions of law and regulation by assigning a DOR of 31 October 2009 based on his PED.  Therefore, 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 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)                                         AR20110014217



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ABCMR Record of Proceedings (cont)                                         AR20110014217



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