BOARD DATE:	 5 February 2013 

		DOCKET NUMBER:  AR20120004501 


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 correction of his date of rank (DOR) to major (MAJ)/
O-4 to 30 November 2010 instead of 4 October 2011.

2.  The applicant states he was selected for promotion and State orders were issued with an effective date of promotion of 30 November 2010.  This promotion was based on selection by a unit vacancy promotion board.  However, his unit vacancy promotion packet was not submitted to the National Guard Bureau (NGB) for Federal recognition in a timely manner.  He was subsequently selected for promotion by a Department of Army Mandatory Promotion Board with an effective date of promotion of 4 October 2011.  He was mobilized and deployed to the Middle East during this time and he returned from Iraq on 15 February 2011.  He believes his date of promotion should be the date of his original State promotion.  The delay in his promotion packet submission for Federal recognition was solely the fault of the North Carolina Army National Guard (NCARNG).

3.  The applicant provides:

* Orders 039-129, dated 8 February 2010 (mobilization orders)
* Orders 334-854, dated 30 November 2010 (State promotion orders to MAJ)
* Orders 009-809, dated 9 January 2011 (State promotion orders to MAJ)
* Orders 019-913, dated 19 January 2011 (amendment of additional instructions to Orders 334-854)
* Memorandum, subject:  Unit Vacancy Promotion of Mobilized ARNG Officer:  (applicant's name), dated 19 January 2011
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 6 April 2011
* Orders 024-858, dated 24 January 2012 (State promotion orders)
* Memorandum, subject:  Promotion as a Reserve Commissioned Officer of the Army, dated 23 February 2012
* NGB Special Orders Number 68 AR, dated 23 February 2012
* Memorandum, subject:  Exception to Packet Suspense Policy (Applicant's name)
* Memorandum, subject:  Request for DOR Adjustment  RE:  (Applicant's name)
* 6 pages of e-mail correspondence

CONSIDERATION OF EVIDENCE:

1.  The applicant, an NCARNG Soldier with 7 years of enlisted service, was commissioned in the NCARNG as an Ordnance/Logistics officer.

2.  He served on active duty in support of Operations Iraqi Freedom and New Dawn from 22 February 2010 through 6 April 2011 with service in Iraq from
14 April 2010 through 8 February 2011.  His DD Form 214 for the period ending 6 April 2011 shows he served as a captain (CPT)/O-3 during this period.

3.  Orders 334-854, issued by the State of North Carolina, Department of Crime Control and Public Safety, Joint Force Headquarters, dated 30 November 2010, promoted the applicant to MAJ/O-4 with an effective date and DOR of
30 November 2010.

4.  On 12 January 2011, the NCARNG J1 requested an Exception to Packet Suspense Policy on behalf of the applicant and another officer.  The J1 noted that both officers had been selected for promotion by the State Federal Recognition Board and the error in not processing their promotions to the NGB in a timely manner lay solely with the G1 section, not the officers.  He further stated the State was short 37 field grade officers and that granting the exception would not only be equitable for the officers but would also fill two of the vacancies and free up slots for accession of junior officers.

5.  On 19 January 2011, the NCARNG forwarded a memorandum to the NGB stating the applicant was mobilized on 25 February 2010 and he was being promoted in accordance with the Unit Vacancy Promotion of Mobilized Army National Guard Officers memorandum of 2 February 2009.

6.  Orders 009-809, issued by the State of North Carolina, Department of Crime Control and Public Safety, Joint Force Headquarters, dated 9 January 2012, promoted the applicant to MAJ/O-4 with an effective date and DOR of 1 June 2011.

7.  Orders 024-858, issued by the same headquarters, dated 24 January 2012, promoted the applicant to MAJ/O-4 with an effective date and DOR of 4 October 2011.

8.  NGB memorandum, dated 23 February 2012, notified the applicant he had been promoted as a Reserve Commissioned Officer of the Army to MAJ/O-4 with an effective date and DOR of 4 October 2011.

9.  NGB Orders 68 AR, dated 23 February 2012, extended Federal recognition to the applicant for the purpose of promotion to MAJ/O-4, effective 4 October 2011.

10.  On 4 March 2012, the NCARNG, G1 Plans and Policy Officer submitted a request of adjustment of the applicant's DOR to 30 November 2010, the date of his original state promotion.  The G1 officer stated the applicant's promotion packet was boarded, he was approved by the promotion board on 17 November 2010, and State promotion orders were issued with an effective date of
30 November 2010.  However, the G1 section failed to submit his unit vacancy promotion packet to the NGB.  The applicant was subsequently promoted to MAJ/O-4 by a mandatory Department of the Army Selection Board and given an effective date of promotion of 4 October 2011.  She stated the delay in the applicant's promotion was solely due to the fault of her section; therefore, the applicant should not be penalized for their mistake.

11.  An advisory opinion was obtained from the Chief, Personnel Policy Division, NGB, who recommended partial relief.  The advisory official stated the applicant was selected for promotion by a unit vacancy promotion board on 17 November 2010 and given an effective date and DOR of 30 November 2010.  The NCARNG G1 admitted to failing to finalize and submit the applicant's unit vacancy promotion packet in a timely manner and requested an exception to policy.  The exception was denied.  As a result, the NCARNG resubmitted his promotion packet for review by a Department of Army Mandatory Promotion Board that selected the applicant for promotion and afforded him an effective date and DOR of 4 October 2011.  The advisory official stated if the promotion packet had been submitted properly the applicant would have been promoted based on the unit vacancy board selection.  Taking into consideration the Federal recognition processing time, it would be appropriate to correct the applicant's DOR to at least 1 January 2011.  Further, with such an adjustment the applicant's pay should also be adjusted affording him back pay in the higher grade and Federal tax relief for the period he was deployed based on the higher grade.

12.  On 30 November 2012, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

13.  NGB Memorandum, subject:  Unit Vacancy Promotion of Mobilized Army National Guard (ARNG) Officers, dated 2 February 2009, states:

	a.  Mobilized ARNG officers, regardless of the units to which they are assigned or mobilized, may be unit vacancy promoted against positions within their respective States.

	b.  A mobilized officer recommended for a unit vacancy promotion will be processed in accordance with current Federal Recognition Board (FRB) procedures as outlined in National Guard Regulation 600-100, paragraph 8-11.  Promotion will be effective the date Federal recognition is granted.

14.  NGB Memorandum, subject:  Suspense for Submission of Applications for the Federal Recognition of Army National Guard Officers in a Higher Grade by way of Unit Vacancy Promotion (ARNG-HRH Policy Memorandum #10-068), dated 3 November 2009, states;

	a.  The promotion of an ARNG officer is accomplished by the State or Territory to which that officer is assigned.  The Federal recognition of that promotion is facilitated by one of two specific board proceedings.   Those proceedings determine the suitability of the ARNG officer for Federal recognition at the higher rank; a positive finding by the board is required before Federal recognition at the higher rank can be extended.  They may be convened either at the State level in connection with a unit vacancy promotion when an individual officer is being considered to fill a particular vacancy (before the officer is approaching maximum time in grade) or at U.S. Army Human Resources Command (HRC) (when a group of officers is approaching maximum time in grade).

	b.  An FRB is the Department of the Army board that is convened at the State level to consider an individual officer's suitability for Federal recognition at the next higher grade.  These boards are used in connection with unit vacancy promotions (promotion of a particular officer to an indentified vacancy before the officer approaches maximum time in grade).

	c.  For Soldiers in the zone of consideration for a Mandatory DA Promotion Selection Board, no application may be submitted for Federal recognition of an officer's promotion based on the results of a State board within 90 days of the date that the Mandatory DA Promotion Selection Board is scheduled to convene. The Federal recognition section (Special Actions Branch) will not accept such applications for processing.

15.  National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions) sets forth the policies and procedures governing the appointment, assignment, temporary Federal recognition, Federal recognition, reassignment, transfers between States, branch transfers, area of concentration designation, utilization, branch detail, attachment, and separation of commissioned officers of the ARNG.

DISCUSSION AND CONCLUSIONS:

1.  The NCARNG issued orders promoting the applicant to MAJ/O-4 with an effective date and DOR of 30 November 2010.  This is the date of his State promotion, which can differ from the Federal promotion date.

2.  For Federal recognition of a State promotion and as an officer of the Reserve of the Army, an officer must also be approved by an FRB.

3.  Due to procedural errors on the part of the NCARNG, the applicant's promotion packet was not submitted within the proper time frame for review by an FRB.  The NCARNG accepted sole responsibility for the error in properly processing the promotion packet.

4.  It appears the requested exception to policy was denied because, at the time of that request, the applicant was being considered by a Mandatory DA Promotion Selection Board.  Requests for unit promotion recognition are not to be submitted within 90 days of a mandatory board.

5.  The mandatory promotion board selected the applicant for promotion and, based on that selection, he was granted Federal recognition and an effective date and DOR of 4 October 2011.  This resulted in an 11-month delay of the applicant's promotion.

6.  In view of the foregoing, especially considering the NGB advisory opinion's recommendation, it would be appropriate at this time to correct the applicant's records to show his State promotion packet was submitted in a timely manner and the applicant was extended Federal recognition for promotion to MAJ/O-4 with an effective date and DOR of 1 January 2011.

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 Department of the Army records of the individual concerned be corrected by:

	a.  showing the applicant was selected for and promoted to the rank/grade of MAJ/O-4 by a unit vacancy board;

	b.  amending NGB Special Orders Number 68 AR to show he was extended Federal recognition effective 1 January 2011 for the purpose of promotion to MAJ/O-4;

	c.  paying him all back pay due as a result of these correction; and

	d.  providing him any tax relief based his period of deployment.

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 an effective date and date of rank for promotion to MAJ/O-4 earlier than 1 January 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)                                         AR20120004501



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