IN THE CASE OF:	  

		BOARD DATE:  3 July 2012

		DOCKET NUMBER:  AR20110020561 


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 effective date for promotion to captain (CPT)/O-3 from "21" April 2011 to 22 September 2009.

2.  He states he was selected for promotion by a Special Selection Board (SSB) under the 2009 selection board criteria.  He adds the state took a year to process his promotion packet and he was not officially promoted until April 2011.  He states his date of rank (DOR) is listed as 22 September 2009, but the effective date of his pay and incentives is listed as 22 April 2011.  He opines that the difference in his DOR and the effective date of pay and entitlements is unjust because he was eligible for promotion and was in an O-4 position.

3.  He provides the following:

* Memorandum, Subject:  Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty, dated 18 February 2010
* Order 253-190, dated 9 September 2004
* Special Orders Number 116 AR, dated 23 May 2011
* Orders 112-135, dated 22 April 2011
* Memorandum, Subject:  Promotion as a Reserve Commissioned Officer of the Army, dated 23 May 2011

CONSIDERATION OF EVIDENCE:

1.  After having prior enlisted service in the Air Force, on 23 April 1999 the applicant enlisted in the Army National Guard (ARNG).  On 9 August 2002, he was honorably discharged to accept an appointment as a second lieutenant in the ARNG which was accomplished the following day.

2.  Orders 253-190, dated 9 September 2004, show he was promoted to first lieutenant with an effective date and a DOR of 10 August 2004.

3.  Memorandum, Subject:  Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty, dated 18 February 2010, shows he was selected for promotion to CPT under the provisions of Title 10, section 14502 by a 2009 SSB. The board adjourned on 22 September 2009.  The memorandum stated the effective date of the promotion would be either 9 August 2009 or the date Federal recognition was extended in the higher grade. 

4.  Orders 112-135, dated 22 April 2011, promoted him to CPT, with an effective date and a DOR of 22 April 2011.

5.  A Memorandum, Subject:  Promotion as a Reserve Commissioned Officer of the Army, dated 23 May 2011, stated that his Reserve of the Army promotion and authorization for pay and allowances in the higher grade were effective on 
22 April 2011.  Time in grade for promotion to the next grade would be computed from his promotion eligibility date of 9 August 2009.  The memorandum further stated that if the promotion was a result of a recommendation by an SSB, the DOR, effective date for pay and allowances and position on the Reserve active-status list was the same as if he had been recommended by the selection board which did not recommend or consider him. 

6.  Special Orders Number 116 AR, dated 23 May 2011, extended him Federal recognition in the grade of CPT, effective 22 April 2011.  Special Orders Number 274 AR, dated 28 October 2011, amended his promotion eligibility date to 
9 August 2009.

7.  The Integrated Total Army Personnel Database lists his grade as CPT with a DOR of 22 September 2009 and an effective date of 22 April 2011.

8.  A copy of Federal recognition orders and the Unit Manning Report (UMR) were obtained from the Maryland ARNG.   Special Orders Number 274 AR show the applicant's Federal recognition was effective on 8 December 2010 after being transferred from the Transportation Corps (TC) to the Adjutant General (AG) Corps.  The UMR, also dated 8 December 2010, shows he was assigned to paragraph 023 line 14, in a position titled Company Grade Officer in grade O3, AG, in specialty 42B (Human Resources Officer).  The UMR further shows he was assigned to this position as a first lieutenant, TC.

9.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for the promotion of Reserve and ARNG officers.  This regulation states that officers selected by an SSB are eligible for the same DOR that they would have received by the original board in which the error occurred.  

10.  Title 10, U.S. Code, section 14502(e)(2) provides that an officer who is promoted to the next higher grade as the result of the recommendation of a SSB convened under this section shall, upon such promotion, have the same date of rank, the same effective date for the pay and allowances of that grade, and the same position on the Reserve active-status list as the officer would have had if the officer had been recommended for promotion to that grade by the selection board which should have considered, or which did consider, the officer.

11.  National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions) states that the effective date of promotion of an ARNG officer who is promoted in the States is the date Federal Recognition is extended by the National Guard Bureau.  The officer's date of rank as a Reserve of the Army for an ARNG commissioned officer, who is promoted as a result of Federal recognition board selection is the date Federal Recognition is extended in the higher grade.  

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances, the applicant is entitled to correction of his effective date of promotion to CPT.  However, his DOR for promotion to CPT of 
22 September 2009 remains unchanged.  The available evidence shows he was extended Federal recognition in AG Corps and assigned to an O-3 position effective 8 December 2010.  There is no evidence and he has not provided any to show he held an O-3 position and/or was extended Federal recognition to the higher grade prior to 8 December 2010. 

2.  Further, the evidence of record shows he was selected for promotion to CPT by the 2009 SSB.  The memorandum stated the effective date of the promotion would be either 9 August 2009 or the date Federal recognition was extended in the higher grade.  The evidence further shows he was promoted to CPT with a DOR of 22 September 2009 and an effective date of 22 April 2011.

3.  As cited in Title 10, U.S. Code, section 14502(e)(2) if selected for promotion by an SSB, he is entitled to have the same DOR and the same effective date for the pay and allowances of that grade as other officers would have received by the original board which should have considered him for promotion.

4.  In view of the foregoing, the applicant is entitled to a partial grant.  Therefore, his records should be corrected to show his effective date for promotion to CPT as 8 December 2010.  Further, as a result of this correction, the Defense Finance and Accounting Service should pay him any due back pay and allowances.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  ___X ___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all State Army National Guard and Department of the Army records of the individual concerned be corrected by showing he was promoted to CPT and granted Federal recognition for this promotion with an effective date of 8 December 2010 with entitlement to any due back pay and allowances.

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to an effective date for promotion to CPT of 22 September 2009.



      _______ _   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)                                         AR20110020561





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ABCMR Record of Proceedings (cont)                                         AR20110020561



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