IN THE CASE OF:	  

		BOARD DATE:  31 January 2013

		DOCKET NUMBER:  AR20110022102


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 his date of rank (DOR) to captain (CPT/O-3) be corrected to show 3 March 2011 instead of 16 August 2011, and that he be paid all associated back pay and allowances to which he is entitled due to this correction.

2.  He states at the time he was selected for promotion to CPT/O-3 by the Fiscal Year 2011 (FY11) CPT Army Promotion List (APL) Reserve Component (RC) Selection Board, he was working in a CPT's position and was fully qualified for promotion.  He attempted to have his DOR corrected by the Division G1, which directed him to apply to this Board.

3.  He provides:

* Headquarters and Headquarters Company (HHC), 3rd Battalion, 144th Infantry, Unit Manning Report, prepared 13 November 2009
* Orders Number 225-343, dated 13 August 2010
* FY11 CPT APL (RC) Selection Board Results, release date 3 March 2011
* Recommendation for promotion memorandum, dated 5 April 2011
* Special Orders Number 208 AR, dated 2 September 2011
* National Guard Bureau (NGB) promotion memorandum, dated                   2 September 2011



CONSIDERATION OF EVIDENCE:

1.  On 31 August 2005, he was commissioned as a second lieutenant in the Texas Army National Guard (TXARNG).

2.  He was granted Federal recognition and promoted to first lieutenant on 
31 August 2007.

3.  On 1 August 2010, he was reassigned to HHC, 36th Infantry Division, TXARNG, to an unspecified grade position in paragraph/line number 304/01A, Austin, TX, as an Operations Officer.

4.  He was called to active duty in support of Operation Iraqi Freedom on 
26 September 2010.  He was released from active duty on 24 November 2011.

5.  On 3 March 2011, he was selected for promotion to CPT by the FY11 CPT APL (RC) Selection Board.

6.  A memorandum dated 5 April 2011, from Company B, 36th Infantry Division Special Troops Battalion (DTSB), recommended the applicant for promotion to CPT.

7.  In a memorandum from the Texas Military Forces, Joint Forces Headquarters (JFHQ), Adjutant General's Department, dated 15 July 2011, the NGB was notified that the applicant would be promoted in accordance with "NGB-ARH memorandum dated 30 January 2004, subject:  Promotion of Mobilized Army National Guard Officers who are Selected for Promotion by a Headquarters, Department of the Army (HQDA) Mandatory Promotion Board."  This memorandum shows he was projected to be assigned as a Tactical Intelligence Officer in paragraph/line number 104/01 within 180 days of his release from mobilization.

8.  On 2 September 2011, the NGB notified the applicant that he was selected for promotion to CPT effective 16 August 2011 and Federal recognition was extended to the applicant in the rank of CPT on the same day.

9.  In the processing of this case an advisory opinion was obtained from the NGB, Personnel Policy Division which recommends that his DOR to CPT/O-3 be adjusted to a date on or about 3 March 2011 per the release of the FY11 CPT APL RC Selection Board results.  This recommendation stated that the 


TXARNG erroneously processed the applicant through a State Federal Recognition Board even though he had been named on the DA Promotion Selection Board to the CPT APL FY11, which delayed his promotion by 
6 months.  The State concurred with this recommendation but recommended his DOR be adjusted to 5 April 2011, the date his promotion packet was forwarded for confirmation.

10.  National Guard Regulation 600-100 (Commissioned Officer-Federal Recognition and Related Personnel Actions) states in:

   a.  Paragraph 8-11c that if a commissioned officer has been selected for promotion by HQDA board convened under mandatory selection criteria, the State may promote the officer under unit vacancy criteria prior to the mandatory promotion eligibility date.  The requirement to conduct the Federal Recognition Board is waived if the unit vacancy promotion is in the same branch and AOC as for which the officer received mandatory promotion selection; and
   
   b.  Paragraph 8-12 that a memorandum of recommendation from the applicant's immediate commander, properly endorsed by all commanders concerned and by the Adjutant General is sufficient copies is required to promote officer who are to fill unit vacancies.

11.  Personnel Policy Guidance 2004, ARNG Promotions, states a mobilized officer who is selected for promotion by a DA Mandatory promotion board, may be promoted immediately when appointed in the state against a position of the higher grade the officer will occupy upon demobilization.  The officer must be assigned to the position within 180 days following demobilization or release from active duty (REFRAD).

12.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) states, in part, that the effective date of promotion for commissioned officers may not precede the date on which the promotion memorandum is issued and the promotion memorandum will not be issued before the date the promotion board results are approved and confirmed by the Senate (if required).  In addition, the officer must be assigned or attached to a position in the higher grade. 



DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his DOR to CPT/O-3 be corrected to show he was promoted on 3 March 2011 instead of 16 August 2011, and that he be paid all associated back pay and allowances to which he is entitled due to this correction. There appears to be sufficient evidence to grant him partial relief.

2.  The evidence of record shows he was selected for promotion to CPT by the HQDA CPT APL FY11 selection board on 3 March 2011.  A memorandum from the Texas Military Forces, JFHQ, informed the NGB that the applicant would be promoted in accordance with Personnel Policy Guidance 2004, ARNG Promotions, which states a mobilized officer who is selected for promotion by a DA Mandatory promotion board, may be promoted immediately when appointed in the State against a position of the higher grade the officer will occupy upon demobilization.  This memorandum also states he would be assigned as the Tactical Intelligence Officer.

3.  Further, by regulation, if a commissioned officer has been selected for promotion by HQDA board convened under mandatory selection criteria, the State may promote the officer under unit vacancy criteria prior to the mandatory promotion eligibility date.  The requirement to conduct the Federal Recognition Board is waived if the unit vacancy promotion is in the same branch and AOC as for which the officer received mandatory promotion selection.  Information provided by the NGB shows the TXARNG erroneously processed the applicant through a State Federal Recognition Board which delayed his promotion.  Therefore, because the delay was no fault of the officer's, his DOR to CPT should be corrected to 5 April 2011, the date his promotion packet was forwarded for confirmation.

4.  In view of the above, he should be granted partial relief.

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 records and all Department of the Army records of the individual concerned be corrected by showing he was promoted to CPT and granted Federal recognition as a CPT effective 5 April 2011 and paying him all back pay and allowances, providing he met all other requirements for promotion.

2.  The Board further determined that the evidence presented is 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 correcting his DOR to CPT to 3 March 2011.




      _______ _  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)                                         AR20110022102





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