IN THE CASE OF:	  

		BOARD DATE:	  22 February 2012

		DOCKET NUMBER:  AR20110025089 


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 promotion to captain (CPT) in the Idaho Army National Guard (IDARNG).

2.  The applicant states:

* he was assigned to the 1st Battalion, 186th Aviation, IDARNG
* he was submitted for promotion to CPT in May 2008 and was incorrectly prevented from being promoted
* he was told he was not promoted because he was not on flight status and had to be on flight status to be promoted in an aviation unit
* the State officer strength manager made up the requirement to be on flight status that prevented him from being promoted
* he was not on flight status due to an injury he sustained while deployed to Afghanistan
* the regulation did not require him to be on flight status, it only required him to meet medical fitness standards
* he was also selected for promotion by an active duty mandatory promotion board that adjourned on 13 November 2009; the results were released in April 2010, but he was still not promoted
* he disputed the officer strength manager's position and he filed a dispute with the Inspector General, but nothing came of it
* he was finally able to show his battalion commander the accurate regulation, but by then all the CPT slots had been filled


3.  The applicant provides the following documentary evidence:

* memorandum of eligibility for promotion as a Reserve commissioned officer not on active duty
* certificate of appreciation
* Fiscal Year 2009 U.S. Army Judge Advocate General's Corps Summer Intern Evaluation Report
* Army Achievement Medal Certificate
* DA Forms 67-9 (Officer Evaluation Report (OER)) for the period 2 July 2007 through 31 August 2011

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a second lieutenant in the IDARNG and he executed the oaths of office on 15 May 2004.  He was assigned to Company A, 1st Battalion, 183rd Aviation.

2.  He entered active duty on 15 May 2004 and completed the Aviation Officer Basic Course and the Initial Entry Rotary Wing Course.  He was honorably released from active duty on 21 April 2005.

3.  On 20 April 2006, the IDARNG published Orders 427-090 promoting him to first lieutenant (1LT) as a platoon leader effective 14 May 2006.  This was followed by the issuance of National Guard Bureau (NGB) Special Orders Number 123 AR extending him Federal recognition for promotion to 1LT.

4.  He entered active duty on 22 October 2005 in support of Operation Enduring Freedom and he subsequently served in Afghanistan from February 2006 to February 2007.  He was honorably released from active duty to the control of the IDARNG on 6 April 2007.

5.  On 22 June 2007, the IDARNG published Orders 425-019 transferring him from the position of Platoon Leader to the position of S-2, Headquarters and Headquarters Company (HHC), 1st Battalion, 183rd Aviation.

6.  On 1 August 2008, he was assigned as the Liaison Officer, HHC, 1st Battalion, 183rd Aviation.  On 25 September 2009, the IDARNG published Orders 438-009 reassigning him from the Liaison Officer position to the position of Assistant S-3, HHC, 1st Battalion, 183rd Aviation.

7.  On 14 April 2010, the IDARNG issued him a memorandum of eligibility for promotion as a Reserve commissioned officer.  The memorandum stated he had been selected for promotion to CPT under the provisions of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) by a board that adjourned on 13 November 2009.  The promotion eligibility date (PED) is shown as 14 May 2011.  His effective date of promotion would be either of the following dates:

* PED of 14 May 2011
* date Federal recognition is extended in the higher grade
* date following the date Federal recognition is terminated in the current Reserve grade

8.  On 18 March 2011, the IDARNG published Orders 077-028 transferring him from the position of S-4 to the position of Liaison Officer, HHC, 1st Battalion, 183rd Aviation.

9.  On 30 April 2011, he submitted a memorandum of delay of promotion as a Reserve of the Army and ARNG until 14 May 2014.  He indicated he understood:

* he would be retained on the promotion list for 3 years and he could be promoted at any time during the delay
* he must be promoted into the higher grade if the higher grade was made available to him
* if there is no higher-graded position and he desired to be promoted, his Federal recognition would be withdrawn and he would be transferred to the Individual Ready Reserve and be promoted
* he may choose to decline promotion at which time his name would be removed and he would be considered non-selected for promotion

10.  On 11 May 2011, the IDARNG approved his request for delayed promotion through 14 May 2014.

11.  On 22 October 2011 subsequent to his acceptance of a commission or appointment in the Regular Army, he was honorably discharged from the ARNG. His NGB Form 22 (Report of Separation and Record of Service) shows he was honorably discharged on 22 October 2011 in the rank of 1LT by reason of accepting another appointment.  He completed 7 years, 5 months, and 8 days of total ARNG service.

12.  On 23 October 2011, he executed an oath of office for appointment as a Regular Army commissioned officer.

13.  On 9 November 2011, NGB published Special Orders Number 288 AR withdrawing his Federal recognition as a commissioned officer of the ARNG.

14.  He submits:

* a summer intern evaluation report from 22 June to 20 August 2009 that shows he was being trained as a Judge Advocate General’s Corps officer
* a certificate of appreciation in support of a legal mission
* a certificate showing he was awarded the Army Achievement Medal for exceptional service from 8 to 24 July 2008
* multiple OER's between July 2007 and August 2008 showing he was rated fully or best qualified in the various positions he held in the 1st Battalion, 183rd Aviation

15.  Army Regulation 135-155 prescribes policy and procedures used in the selection and promotion of commissioned officers of the ARNG and commissioned and warrant officers of the U.S. Army Reserve.  Table 2-1 (Time in Grade Requirements for Commissioned Officers Other Than Commissioned Warrant Officers) outlines the service requirements for promotion and indicates that for promotion to CPT the minimum years of service in the lower grade is 2 years and the maximum years in the lower grade is 5 years.

16.  National Guard Regulation 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions) prescribes policies and procedures governing the appointment, assignment, temporary Federal recognition, Federal recognition, reassignment, and other personnel issues related to commissioned officers of the ARNG.  It states commissioned officers of the ARNG are appointed by the several States.  These appointments may be Federally recognized by the Chief, NGB, under such regulations as the Secretary of the Army may prescribe and under the provisions of this regulation.  Officers who are Federally recognized in a particular grade and branch shall be tendered an appointment in the same grade as Reserve commissioned officers of the Army with assignment to the ARNG, as provided by law.

17.  National Guard Regulation 600-100, chapter 8, provides for promotion of officers.  It states the promotion of officers in the ARNG is a function of the State, and as in original appointments, a commissioned officer promoted by State authorities has a State status in the higher grade under which to function.  However, to be extended Federal recognition in the higher grade, the officer must have satisfied the promotion requirements.  Paragraph 8-2a(2) states the DOR as a Reserve of the Army for an ARNG traditional commissioned officer, who is promoted as a result of selection by a mandatory selection board, is the date the Chief, NGB, extends Federal recognition.

18.  Title 10, U.S. Code, sections 14304(b) and 14316(d), state that a mobilized Reserve Component officer who has been recommended for promotion to the grades of CPT through LTC by a mandatory promotion board and who is on an approved promotion list shall be promoted without regard to the existence of vacancy or placement against a position of a higher grade under the policy memorandum on the date on which the officer completes the maximum years of service as specified in section 14304(a), unless the officer has voluntarily delayed or declined the promotion.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should have been promoted to CPT in the ARNG.

2.  With respect to State vacancy promotions, there is no evidence in his records and he provided none to show he was recommended by his chain of command for promotion to CPT.  He provided no evidence to confirm his contention that he was told he was not promoted because he was not on flight status.  An Inspector General investigation would have helped to confirm his contentions.

3.  With respect to the mandatory promotion board, the applicant was promoted to 1LT on 14 May 2006.  His PED to CPT was 14 May 2011.  He was selected for promotion by a mandatory board in November 2009.  He would have been promoted on his PED, but he was never assigned to a CPT position and, again, he provided no evidence to confirm his contentions he was erroneously denied promotion.  He then requested a delay of promotion to CPT prior to reaching his PED.

4.  He ultimately accepted an appointment in the Regular Army and he was discharged from the ARNG without having met the criteria for promotion to CPT.  There is insufficient evidence to confirm either an error or an injustice occurred. Therefore, there is no evidence to support his promotion to CPT in the ARNG.

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 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)                                         AR20110025089



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110025089



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1