BOARD DATE:	  5 February 2013

		DOCKET NUMBER:  AR20120002770 


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 an adjustment of his effective date of promotion to colonel (O-6) from 27 October 2011 to 5 March 2010 and that he receive all back pay and allowances due as a result of the adjustment.

2.  The applicant states:

* he was unjustly delayed in being federally recognized for promotion to colonel due to an administrative error between the State of Texas and the National Guard Bureau (NGB)
* the error was not of his making and it denied him 19 months of differential pay creditable towards his "high three" for retirement
* he was selected for promotion to colonel by a Department of the Army Selection Board in June 2009 and he was reassigned to a colonel's position in December 2009
* the Adjutant General (AG) of Texas directed that he be promoted to colonel in January 2010
* a State promotion order and a Federal Recognition packet was prepared and submitted to the NGB on or about 5 March 2010
* no action was ever taken by the NGB on his application for Federal Recognition
* his application remained at the NGB for 4 months
* interpretation of controlled grade authorization came into question
* his application for Federal Recognition expired and his application was discarded without any feedback to him
* it took 19 months for controlled grades to be satisfactorily addressed resulting in a promotion effective date of 27 October 2011
* it is clear that it was the Texas AG's intent for him to be promoted in March 2010
* but for the failure to communicate effectively on the part of human resources personnel at the State and NGB level, he would have been promoted in March 2010

3.  The applicant provides:

* NGB Promotion Memorandum, dated 17 November 2011
* NGB Special Orders Number 300 AR, dated 17 November 2011
* Texas Army National Guard (TXARNG) Orders 021-1063, dated 21 January 2010
* TXARNG Orders 064-1019, dated 5 March 2010
* TXARNG Assignment Memorandum, dated 13 November 2008

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service in the TXARNG, the applicant accepted an appointment as a second lieutenant (O-1) in the U.S. Army Reserve on 17 May 1986.

2.  On 1 October 1989, the applicant accepted an appointment as a first lieutenant (O-2) in the TXARNG.  He was promoted through the ranks to lieutenant colonel (O-5) effective 22 April 2005.  

3.  On 5 March 2010, TXARNG Orders 064-1019 were published promoting the applicant to colonel (O-6), effective that date.  The orders state that the "individual will not be paid for promoted rank until Federal Recognition confirmed."

4.  On 17 November 2011, the NGB notified the applicant that he was promoted in the Reserve of the Army for service in the ARNG of the United States, effective 27 October 2011.

5.  NGB Special Orders Number 300 AR, dated on 17 November 2011, awarded the applicant Federal Recognition in the rank of colonel effective 27 October 2011.


6.  During the processing of this case an advisory opinion was received from the NGB Chief, Personnel Policy Division, recommending disapproval of the applicant's request.  The NGB Chief stated the following:

* there was no available controlled grade at the time the applicant's promotion packet was submitted to the ARNG Federal Recognition section
* TXARNG produced Order Number 064-1019, dated 5 March 2010; however no Federal Recognition order was published at the time
* ARNG-Human Recourses Management (HRM) oversees the allocation of "controlled grades" for Active Guard Reserve personnel in accordance with Title 10, U.S. Code, section 12011
* an email from ARNG-HRM-P, dated 24 September 2012, indicates the first communication pertaining the applicant's promotion to colonel was received on 4 October 2010
* at that time the TXARNG was overexecuting their O-6 controlled grades and did not have any available
* after several months of discussion with the TXARNG, the promotion request was denied by HRM
* after several more months, the TXARNG brought its controlled grades into compliance with ARNG management controls and the ARNG-HRM approved a temporary control grade to support his promotion request
* his promotion packet was approved for processing on 15 November 2011 and Federal Recognition Order 300 AR was published with a 27 October 2011 effective date of promotion to colonel

7.  A copy of the advisory opinion was forwarded to the applicant for his concurrence and/or possible rebuttal.  He submitted a rebuttal to the advisory opinion stating:

* other than the State promotion order, he has no additional documentary evidence available to him to support the fact that a Federal Recognition packet was submitted for him to the NGB in March 2010
* State promotion orders are normally only published by a State in conjunction with a Federal Recognition packet being transmitted to NGB
* absolutely no action was taken by the NGB with regard to his Federal Recognition packet
* NGB offered no documentary or anecdotal evidence that references the time between the State published promotion orders (5 March 2010) and October 2010
* the NGB indicates that Texas had exceeded its controlled grade allotment
* 
the referenced law that places limits on the number of active duty officers in the grade of colonel does not specifically limit Texas to a certain number, but, rather, limits the 54 States and Territories
* Texas may have exceeded its allotment; however, NGB as a whole had not exceeded the statutory limit otherwise the State would not have published a promotion order
* the NGB has provided no information as to why the State and NGB do not agree on this matter
* the NGB's advisory opinion indicates that enclosures accompanied the memorandum
* he saw no enclosures referenced in the text of the opinion and no enclosures associated with the advisory opinion were made available to him

8.  National Guard Regulation 600-100 (Commissioned Officer-Federal Recognition and Related Personnel Actions) provides procedures for processing all applications for Federal Recognition.  Paragraph 2-1 states that commissioned officers of the ARNG are appointed by the several States under Article 1, Section 8 of the U. S. Constitution.  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 of the United States if they have not already accepted such appointment.  

9.  Paragraph 8-1 of National Guard Regulation 600-100 states the promotion of officers in the ARNG is a function of the State.  Paragraph 8-3 states a commissioned officer who has been promoted by the State and extended Federal Recognition in the higher grade will be concurrently promoted to the higher grade in the Reserve of the Army with assignment to the ARNG of the United States.

10.  Paragraph 10-1 of National Guard Regulation 600-100 states that in order for an officer to be concurrently appointed, promoted, or receive a branch transfer as a Reserve commissioned officer of the Army, the State action must be federally recognized.  Federal Recognition action is the acknowledgment by the Federal Government that an officer appointed, promoted, or transferred to an authorized grade and position vacancy in the ARNG meets the prescribed laws and regulations.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions and his supporting evidence have been considered.

2.  According to the information contained in the advisory opinion, there was no available controlled grade at the time the applicant's promotion packet was submitted to the ARNG Federal Recognition section.  The ARNG-HRM-P stated the first communication pertaining to the applicant's promotion to colonel was received on 4 October 2010.  At that time the TXARNG was over executing and had exceeded their O-6 controlled grade allotment.  

3.  Orders show the applicant was promoted in the TXARNG under a unit vacancy position to the rank of colonel effective 5 March 2010.  This promotion was accomplished at the discretion of the AG of the State of Texas.  The applicant provides no supporting evidence from the state refuting NGB’s contention concerning exceeding their O-6 controlled grade allotment.

4.  While there was a delay in the processing of the applicant's promotion to colonel, the applicable regulation provides that in order for an officer to be concurrently appointed, promoted, or receive a branch transfer as a Reserve commissioned officer of the Army, the State action must be federally recognized.

5.  The applicant was awarded Federal Recognition for the purpose of promotion to the rank of colonel with an effective date of 27 October 2011 and he was properly promoted on this date.  His request for an adjustment of his effective date of promotion and back pay and allowances should be denied.

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)                                         AR20120002770



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ABCMR Record of Proceedings (cont)                                         AR20120002770



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