IN THE CASE OF:	

		BOARD DATE:	  13 December 2012

		DOCKET NUMBER:  AR20120000732 


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 adjustment of his effective date of promotion and date of rank (DOR) to major (MAJ) in the Pennsylvania Army National Guard (PAARNG) from 15 December 2011 to 9 March 2011.

2.  The applicant states:

	a.  The injustice occurred due to slow promotion packet staffing at three levels to include the division to which he was assigned, the state to which he was affiliated, and the organization to which he is assigned, in that order of processing.  This entire process normally takes 4 to 5 months.  In his case, it took 1 year and 23 days for his promotion packet to process from his division to the State and back to the National Guard Bureau (NGB) for processing through Headquarters, Department of the Army and Office of the Secretary of Defense. 

	b.  Most of the delay occurred at the NGB level.  His promotion recommendation was initiated in October 2010 but not forwarded until April 2011. Although he knows there is no hard date for a vacancy promotion, but he also knows the delay was due to mismanagement on the part of the division rather than a purposeful late recommendation.  His officer evaluation reports (OER) and the email traffic with the division clearly show the mismanagement of an officer who demonstrated high potential for promotion ahead of peers. 

3.  The applicant provides:

* Recommendation for promotion memorandum, dated 3 January 2011
* DA Form 1059 (Service School Academic Evaluation Report)
* DA Form 705 (Army Physical Fitness Test Scorecard)
* DA Form 5500 (Body Fat Content Worksheet)
* Medical Protection System - Individual Medical Readiness
* Email exchange with various individuals, 2010 - 2011
* DA Form 1559 (Inspector General Action Request)
* State Orders 166-1048
* Promotion memorandum
* Special Orders Number 326 AR
* OERs for the rating period 20060912 - 20070911, 20070901 - 20080421, 20080421 - 20090420, 20090421 - 20100420, and 20100421 - 20110420
* Self-authored timeline for promotion packet staffing

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant's records show he was appointed as a commissioned officer in the NYARNG and executed an oath of office on 1 July 2001.  He completed the Armor Officer Basic Course from June to October 2002.  He was promoted to captain (CPT) on 29 November 2006.

2.  He entered active duty in the Active Guard Reserve (AGR) program on 24 February 2007.  He was assigned to the Joint Force Headquarters, PAARNG, with duty at the U.S. Army Infantry Center, Unit Identification Code (UIC) W8BWAA, Fort Benning, GA.  

3.  On 15 June 2010, he was reassigned to the Human Capital Management Division, ARNG Readiness Center, a CPT's position in paragraph/line number 415a/04, UIC W39LAA, Arlington, VA, as a Training Center Team Chief.  

4.  On 3 January 2011, by memorandum to the PAARNG, while assigned to the Joint Force Headquarters, PAARNG with duty at the NGB, the Chief, Training Division, recommended him for promotion to MAJ as a TAMIS (Training Ammunition Management Information System) Officer, a Title 10 (T-10) MAJ position in paragraph/line number 415B/01, UIC W39LAA.  The recommending official stated the applicant demonstrated the required fitness for the responsibilities and duties of the position, grade, and branch for which recommended.  

5.  It is unclear from the official records if the promotion recommendation was staffed to the PAARNG or considered by his state Federal Recognition Board (FRB).  However, the email exchange he provides indicates the promotion recommendation was sent to the State in an attempt to have it considered by the April 2011 FRB but it did not make it.  He inquired via email but was told the promotion was slowed down during staff routing and that AGR MAJ positions are controlled grades.   

6.  On 25 May 2011, by email, he contacted the NGB and provided a timeline of his promotion packet processing.  He stated that he intended to file a claim through the Army Board for Correction of Military Records (ABCMR).

7.  In early June 2011, by email, an official of the PAARNG informed him that the PAARNG was reviewing his promotion packet but there was a concern regarding a physical profile (back injury sustained during physical training).  The response came back that he was cleared from his profile.

8.  On 7 June 2011, an FRB convened by the PAARNG to determine if the applicant should be promoted to MAJ in the PAARNG, paragraph/line number 999/99A in UIC W8BWAA, as a TDA Position Officer.  The FRB determined he was physically, morally, generally, and professionally qualified.  He was also told T-10 positions, coded 999/99A positions, do not get automatically upgraded to a higher-graded position without approval from the Chief, NGB, prior to a Soldier occupying the additional position.

9.  On 15 June 2011, the PAARNG published Orders 166-1048 promoting him to MAJ in the PAARNG, Joint Force Headquarters, UIC: W8BWAA, paragraph/line number 999/99, effective 9 June 2011.  

10.  On 6 July 2011, by email to the NGB, he inquired about the status of his promotion packet.  The Federal Recognition tracker showed "Electronic Packet Entry from State." 

11.  On 26 September 2011, after multiple email exchanges, an NGB official notified him that in reference to his unit vacancy packet, there were no issues within the Federal recognition branch that would have slowed this process.  However, as an AGR officer, his packet required additional authorization for control grade position.  Other than that, his packet travelled through the Federal Recognition section at approximately the same rate as all other vacancy packets. 

12.  On 27 September 2011, he submitted an Inspector General Action Request (IGAR) regarding the slow processing of his promotion packet.  It is unclear if the NGB Inspector General investigated the issue and/or responded to his concern.

13.  On 19 October 2011, by email, an NGB official stated that the State submitted the promotion packet on 15 June 2011.  The packet was reviewed and had no errors.  The applicant was on the Presidential Proclamation List 02-12; however, the scroll had not been forwarded to the Office of the Secretary of Defense yet.  The scroll should have been forwarded on 11 October 2011 but was delayed to 18 October 2011 (due to increased workload) and would be sent within a week. 

14.  On 16 December 2011, the NGB published Special Orders Number 326 AR extending him Federal recognition for promotion to MAJ with an effective date and DOR as 15 December 2011.  

15.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers, Other Than General Officers) prescribes policy and procedures used in the selection and promotion of commissioned officers of the Army National Guard of the United States 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) of this regulation outlines the service requirements for promotion and indicates that for promotion to MAJ the minimum years in the lower grade is 4 years and the maximum years in the lower grade is 7 years.

16.  Army Regulation 135-155 also specifies that the unit commander will initiate position vacancy promotion procedures and forward a memorandum listing all unit officers eligible for promotion consideration.  The memorandum will include the following information:  rank of position, branch, area of concentration, position title, unit, UIC, location of unit, table of organization and equipment/table of distribution and allowances number, PARA/LINE number, and date of position vacancy.  

17.  National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions) provides procedures for processing all applications for Federal recognition of ARNG commissioned officers.  Chapter 8 provides for promotions.  It indicates that unit vacancy promotions of qualified officers are based on the recommendations of the member's immediate commander, properly endorsed by all commanders concerned and the Adjutant General.  It also provides procedures for processing all applications for Federal recognition by the NGB. 

	a.  Section II explains promotions to fill unit vacancies (now called positions vacancies) and states to be considered for Federal recognition and subsequent Reserve of the Army promotion following State promotion to fill a position vacancy, an ARNG commissioned officer must meet the medical, educational, physical, security, and years of service requirements.  

	b.  Section IV explains procedures for promotion of ARNG officers on active duty under Title 10.  It states upon selection for assignment and promotion to a position requiring a higher grade, the AGR Management Branch would send correspondence to the State to promote the officer to the next higher grade effective on a specific date.  If acceptable, the State will issue the promotion order and forward immediately to the NGB.  States are authorized to promote Title 10 AGR officers if certain conditions had been met, among them is that the officer is serving in the higher grade authorized position and an appropriate grade authorization has been provided to the State by the NGB.  

18.  Title 10, U.S. Code, section 14308(f) states that the effective date of a promotion of a Reserve commissioned officer in the Army who is extended Federal recognition in the next higher grade in the ARNG shall be the date in which such Federal recognition in that grade is so extended.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his promotion effective date and DOR to MAJ should be adjusted from 15 December 2011 to 9 March 2011 was carefully considered.  However, there is insufficient evidence to support this request.

2.  By regulation, unit vacancy promotions are within the purview of the State and NGB.  When an officer has been selected for promotion, and he or she is being promoted in the State for a unit vacancy, the officer must meet all promotion requirements and a promotion packet containing all required documents must be forwarded to the Chief, NGB.  The effective date of a promotion will be the date Federal recognition in the higher grade is so extended.  

3.  The applicant's DOR to CPT is 29 November 2006.  The earliest he would have qualified for consideration for promotion by a position vacancy would have been 29 November 2010.  His supervisor recommended him for promotion on     3 January 2011.  The recommending official stated the applicant demonstrated the required fitness for the responsibilities and duties of the position, grade, and branch for which recommended.  

4.  It is unclear from the official records if the promotion recommendation was staffed to the PAARNG or considered by his State FRB.  It is equally unclear if a higher-position was authorized by the State and the NGB.  He was in an AGR status and promotion of ARNG officers in the AGR program under a position vacancy is subject to the existence of a controlled grade.  Furthermore, it is also unclear if his promotion recommendation was timely endorsed by his chain of command or timely forwarded, error free and with no missing documents to the State.  

5.  Making things even more unclear, in June 2011, a State FRB convened and recommended he be granted Federal recognition in the higher grade but for a different position and different UIC.  The FRB found him qualified and, accordingly, the State published the promotion order on 7 June 2011.  The promotion action was staffed through the NGB and ultimately scrolled to the Office of the Secretary of Defense.  Once the scroll was approved, the NGB published the Federal recognition order effective 15 December 2011.  

6.  He could not have been promoted to MAJ in March 2011 as he contends because an FRB did not consider him until June 2011.  But even if he were considered by an FRB earlier than June 2011 and recommended for promotion to MAJ, he could not have been promoted to MAJ until the scroll was approved by the Secretary of Defense.  Scrolling actions are not within the purview of this Board.  

7.  After a comprehensive review of his case, it appears his June 2011 promotion process may have been slightly scrolled but that was due to the huge volume of scrolling actions at the time.  Therefore, no effective relief can be granted.  

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)                                         AR20120000732





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ABCMR Record of Proceedings (cont)                                         AR20120000732



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