BOARD DATE: 14 August 2012
DOCKET NUMBER: AR20110023927
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 change of his date of rank (DOR) to lieutenant colonel (LTC) from 2 December 2008 to 17 March 2008 and payment of any back pay and allowances.
2. The applicant states National Guard Bureau (NBG) regulations specify that mobilized Army National Guard (ARNG) officers who have been selected by a Department of the Army (DA) mandatory promotion board and have reached their maximum time in grade (TIG) will be promoted without regard to a position vacancy. He contends he was mobilized to Germany on 18 February 2008 and met all requirements. His promotion packet was submitted in February 2008 but was not acted on until 20 November 2008 that resulted in almost a 9-month delay in his LTC DOR and loss of active duty pay and allowances.
3. The applicant provides a self-authored memorandum with the identification of 22 exhibits in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant was appointed a Reserve commissioned officer on 20 August 1984. He was promoted to major/O-4 on 16 March 2001. He is currently serving in the Massachusetts Army National Guard (MAARNG) in the rank of LTC.
2. Orders Number A-12-723917, issued by the U.S. Army Human Resources Command, dated 14 December 2007, as amended, ordered the applicant to active duty in support of Operation Enduring Freedom under the provisions of Title 10, U.S. Code, section 12301(d), with a reporting date of 18 February 2008.
3. He was selected for promotion to LTC by the 2007 Army Promotion List (APL) LTC Board.
4. He reached the maximum TIG for LTC (7 years) on 16 March 2008.
5. Orders Number 325-016, issued by the MAARNG, dated 20 November 2008, promoted him to LTC with an effective date and DOR of 20 November 2008.
6. NGB Special Orders Number 301 AR, dated 2 December 2008, extended him Federal recognition for his promotion to LTC effective 2 December 2008.
7. He was released from active duty and transferred to his ARNG unit on
2 February 2009. On 31 August 2012, he was transferred to the Retired Reserve.
8. By memorandum, dated 17 December 2003, the Office of the Assistant Secretary of the Army (Manpower and Reserve Affairs), established promotion policy for mobilized Reserve Component officers for promotion to the grades of captain through colonel. The policy memorandum provides an exception to Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers), paragraph 4-9a. As a condition for promotion, a U.S. Army Reserve Troop Program Unit officer selected by a mandatory promotion board be assigned or attached to a permanent Reserve Component position requiring the higher grade. To the extent that other provisions of other regulations, to include National Guard Regulation 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions) conflict with this policy memorandum, those provisions are waived with respect to those officers to whom this policy applies for as long as this policy memorandum is in effect.
9. The 17 December 2003 memorandum went on to state that a mobilized ARNG of the United States officer covered by this policy memorandum who has been recommended for promotion to the next higher grade by a mandatory promotion board and who is on an approved promotion list may be promoted immediately when appointed in the State against a vacant position of the higher grade in a federally recognized unit in the National Guard. An officer promoted under this policy memorandum should be assigned to that position against which the officer was matched or appointed within 180 days after demobilization.
10. The 17 December 2003 memorandum further stated, "If the Chief, Army Reserve, and the Director, ARNG, implement this policy memorandum for their
respective components, then they will ensure that promotions do not exceed the personnel strength and strength-in-grade limitations of Title 10, U.S. Code. Any proposed guidance to implement this policy memorandum that will be issued by either the Chief, Army Reserve, or the Director, ARNG, must be coordinated with the Deputy Chief of Staff, G-1, and approved by the Assistant Secretary of the Army (Manpower and Reserve Affairs)."
11. By memorandum, dated 30 January 2004, the Director, ARNG implemented the promotion policy outlined by the Assistant Secretary of the Army (Manpower and Reserve Affairs) memorandum, dated 17 December 2003. Effective the date of this memorandum (i.e., 30 January 2004) Army National Guard officers mobilized under the provisions of Title 10, U.S. Code, section 12301(a), 12302, and 12304, who have been 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. While the memorandum authorizes States to promote mobilized officers under this policy, there is no requirement to do so.
12. The 30 January 2004 memorandum went on to state that when a mobilized officer is promoted against a position in the State, the officer must be assigned to the position immediately following demobilization and release from active duty. If, within 180 days following demobilization, an officer declines or is unwilling or unable to occupy the position against which the officer was promoted, or is unable to occupy any other position of the higher grade for which he/she is qualified, then the officer shall be transferred immediately to the Individual Ready Reserve (IRR).
13. The 30 January 2004 memorandum further states that mobilized officers who reach maximum TIG and have neither delayed nor declined their promotion will be promoted whether or not assigned against a position of the higher grade. Mobilized officers in the grades of first lieutenant through major who are promoted because they have reached their maximum TIG and who are not in a position of the higher grade within 6 months after demobilization will be transferred to the IRR.
DISCUSSION AND CONCLUSIONS:
1. Evidence shows the applicant was selected for promotion to LTC by the 2007 APL LTC Board. Evidence further shows he was mobilized effective 18 February 2008 and that he reached the maximum TIG for the rank of LTC on 16 March 2008.
2. Therefore, in accordance with the 17 December 2003 and 30 January 2004 memoranda, he should have been promoted to LTC effective 16 March 2008, the date he reached the maximum TIG for the rank of LTC.
3. In view of the foregoing, it would be equitable to correct the applicant's record to show he was promoted to LTC with a DOR and effective date of 16 March 2008 and to pay him any back pay and allowances as a result of this correction.
BOARD VOTE:
___x_____ __x______ __x___ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that the State Army National Guard records and all Department of the Army records of the individual concerned be corrected by:
a. showing he was promoted to lieutenant colonel with a date of rank and effective date of 16 March 2008; and
b. paying him any back pay and allowances due as a result of this correction.
__________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) AR20110023927
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ABCMR Record of Proceedings (cont) AR20110023927
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