IN THE CASE OF:	  

		BOARD DATE:	  20 September 2012

		DOCKET NUMBER:  AR20110018406 


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 he be promoted to the rank of lieutenant colonel (LTC) and be advanced on the retired list in that rank and grade.

2.  The applicant states that while serving as a Title 10 Active Guard Reserve (AGR) officer he was selected for promotion to LTC by a Headquarters, Department of the Army promotion board.  The National Guard Bureau (NGB) delayed his promotion due to assignment availability and personnel management constraints.  He goes on to state that he should have been promoted when he separated/retired from active duty, with his date of rank being the date he became eligible for promotion and he should have been retired in the rank of LTC.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty); a printout of his promotion selection by the 2007 promotion selection board; a page from Title 10, U.S. Code, section 14311; a page from National Guard Regulation (NGR) 600-100; a page from Army Regulation 135-155; and a copy of orders withdrawing his Federal Recognition.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army National Guard on 31 October 1985 and served in the simultaneous membership program until he was appointed as a second lieutenant in the Iowa Army National Guard (IAARNG) on 21 May 1988.

2.  On 25 November 1989, he entered active duty as a Reserve officer and served until he was honorably released from active duty in the rank of captain.   He entered into the AGR program on 31 January 2001.  He was promoted to the rank of major on 14 November 2001 and he was serving in an LTC position at the time of his promotion to major.

3.  The applicant was serving on active duty at the Pentagon in a major’s position in 2007 when he was selected for promotion to the rank of LTC.  In August 2008, he was transferred to Fort Leavenworth, Kansas.

4.  On 31 October 2010, he retired and was transferred to the Retired List in the rank of major effective 1 November 2010.  He had served 21 years, 2 months, and 20 days of active service and had 24 years and 11 months of service for pay purposes.

5.  In the processing of this case a staff advisory opinion was obtained from the NGB which recommended that his request be disapproved because the applicant was not eligible for promotion by virtue of not being in a higher-graded position while serving as a Title 10 AGR officer.  Additionally, upon his retirement he was transferred to the Retired Reserve which is an inactive status and an officer promoted above the grade of major must serve on active duty in a higher grade for at least 3 years in order to retire at that grade.

6.  The advisory opinion was provided to the applicant for comment and he responded to the effect that the advisory opinion should be rejected because the NGB uses personnel management constraints to circumvent the Department of the Army promotion system.  He continues by stating that he was denied promotion due to NGB policies that clearly circumvent the intent of the law.  Additionally, had he been promoted when he was selected he would have served 3 years on active duty before he retired.

7.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) provides policy and procedures for the selection and promotion of Army National Guard and U.S. Army Reserve commissioned officers.  Paragraph 4-21 provides, in pertinent part, that AGR officers selected by a mandatory board will be promoted provided they are assigned or attached to a position in the higher grade.  AGR officers who are selected for promotion but who are not in a higher-graded position will be promoted on the date of assignment to a higher-graded position or the day after release from AGR status, provided they remain in an active status after release from AGR status.

8.  Title 10 of the U.S. Code, section 1370 (10 USC 1370), provides the legal authority for retirement in the highest grade held satisfactorily for commissioned officers.  It states, in pertinent part, that a commissioned officer who retires under any provision of law shall be retired in the highest grade in which they served on active duty satisfactorily, as determined by the Secretary of the military department concerned.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have been promoted to the rank of LTC has been noted and appears to lack merit.  While the applicant has shown that he was selected for promotion to the rank of LTC by the 2007 Promotion Selection Board, he has failed to show through the evidence submitted with his application and the evidence of record that he was serving in a higher-graded position. 

2.  The applicant’s contention that National Guard personnel management constraints circumvent the intent of the law has also been considered and appears to lack merit.  The applicable regulations provide that individuals must be fully qualified to accept a promotion and part of those qualifications include being assigned to a higher-graded position.  These same provisions were in effect at the time the applicant was promoted to the rank of major and are applied to all Soldiers in the same category as the applicant.

3.  The applicant’s contention that he should have been promoted to the rank of LTC the day following his retirement (1 October 2010) with an effective date of 13 June 2007 has also been noted and appears to lack merit.  The applicable regulations provide that individuals who are selected for promotion and who are not in a higher-graded position will be promoted the day after they are released from the AGR Program, provided they transfer to an active status position.  The Retired Reserve is not an active status position.  The effective date of such promotions is the date the individuals transfer to an active status position.  Additionally, because effective dates are not retroactive, he would not qualify for retirement as a LTC because he had not served in that rank for the minimum time required by law.  

4.  While the applicant may now not agree with the policies that support the applicable laws, the applicant volunteered for the AGR Program and as such accepted the policies that were in effect.  Those policies have been in effect as long as he has served and are applied to all personnel in the applicant’s circumstances.  

5.  Accordingly, it appears that the applicant was properly placed on the Retired List in the rank of major, the highest rank/grade he served in on active duty and  there appears to be no basis to grant his request for a retroactive promotion to LTC and advancement on the Retired List.   

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)                                         AR20110018406





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110018406



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1