IN THE CASE OF:	  

		BOARD DATE:	  11 October 2012
 
 		DOCKET NUMBER:  AR20120015137


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) and effective date of promotion to the rank/grade of lieutenant colonel (LTC)/O-5, and payment of any back-pay and allowances resulting from this correction.

2.  The applicant states:

	a.  He was selected for promotion to LTC by the Fiscal Year (FY) 2010 LTC Army Promotion List (APL) Board.

	b.  He was later assigned to an LTC position effective 1 June 2011 and promoted to LTC in March 2012.

	c.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 4-21d states, as an Active Guard Reserve (AGR) officer, "the date of rank will be the date the officer attained maximum time in grade (TIG) or the date on which assigned/attached to a position in the higher grade, whichever is earlier."

	d.  In his case, the DOR and pay [effective date] should be 1 June 2011, the date he was assigned to the position in the higher grade.

3.  The applicant provides:

* an extract of names of APL officers recommended for promotion to the rank/grade of LTC/O-5 in the Army National Guard (ARNG)
* Orders 202-6, issued by the National Guard Bureau (NGB), Arlington, VA, dated 21 July 2011
* NGB memorandum, subject: Promotion as a Reserve Commissioned Officer of the Army, dated 10 April 2012
* NGB Special Orders Number 114 AR, dated 10 April 2012

CONSIDERATION OF EVIDENCE:

1.  The applicant is a current member of the ARNG on active duty in the AGR Program.

2.  His record shows he enlisted in the U.S. Army Reserve (USAR) on 25 May 1990, completed initial entry training, and he was awarded military occupational specialty 73C (Finance Specialist).  On 29 August 1991, he reenlisted in the USAR as a Reserve Officers' Training Corps (ROTC) cadet.  

3.  On 18 August 1994, he was appointed as a Reserve Commissioned Officer of the Army, military intelligence branch, in the rank/grade of second lieutenant (2LT)/O-1.

4.  On 17 September 1994, he entered active duty and he served in a variety of command and staff positions.  He was promoted to:

* first lieutenant (1LT)/O-2 on 17 September 1996
* captain (CPT)/O-3 on 30 September 1998
* major (MAJ)/O-4 on 1 March 2005

5.  On 3 June 2005, he was honorably released from active duty at the completion of his required period of active service.

6.  On 4 June 2005, he was appointed as a Reserve Commissioned Officer of the Army in the Kansas ARNG (KSARNG) in the rank/grade of MAJ/O-4 in the AGR Program.  He was assigned to the Joint Force Headquarters, State of Kansas, and he was attached to the U.S. Army National Guard Readiness Center, Arlington, VA.  He was extended Federal recognition concurrent with this assignment.

7.  He was considered and selected for promotion by the FY2010 Department of the Army LTC APL Board.  The results of this board were approved by the Secretary of the Army on 3 January 2011 and released on 19 January 2011.

8.  Orders 202-6, issued by the NGB, dated 21 July 2011, show he was reassigned within NGB as a detailed Inspector General effective 1 June 2011.

9.  Orders 096-704, issued by the Joint Force Headquarters, KSARNG, dated
5 April 2012, promoted him to the rank/grade of LTC/O-5 effective 27 March 2012.  These orders show his DOR as 1 June 2011.

10.  On 10 April 2012, NGB issued him a promotion memorandum that notified him of his promotion to the rank/grade of LTC/O-5, effective 27 March 2012.  This memorandum shows his promotion eligibility date (which is his DOR) as
29 February 2012.

11.  Special Orders Number 114 AR, issued by the NGB, dated 10 April 2012, extended him Federal recognition for the purpose of promotion to LTC effective 27 March 2012, with a promotion eligibility date of 29 February 2012.

12.  In the processing of this case an advisory opinion was obtained from the Chief, Personnel Policy Division at NGB.  The advisory official recommended approval of the applicant's request for an adjustment of his DOR to LTC, citing Army Regulation 135-155, paragraph 4-21d, based on the fact the applicant was assigned to an O-5 position on 1 June 2011.  The State of Kansas concurred with the NGB advisory opinion.

13.  On 22 August 2012, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 22 August 2012, he stated he concurred with the recommendation for approval.

14.  Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve Component officers.

	a.  Paragraph 4-15c states that for commissioned officers serving on active duty in an AGR status, when assignment/attachment of an officer requires a higher grade than that currently held by the officer, the officer may be promoted to or extended Federal recognition in a higher grade provided the duty assignment/attachment requires a higher grade than currently held.  When not in a higher graded position, an AGR officer will receive an automatic delay in promotion without requesting such action.  The officer will remain on the promotion list, and on active duty in the AGR program, until assigned or attached to an AGR position calling for the higher grade.

	b.  Paragraph 4-21d states that AGR officers selected by a mandatory board will be promoted provided they are assigned or attached to a position in the higher grade.  An AGR officer who is selected for promotion by a mandatory promotion board, but who is not assigned/attached to a position in the higher grade will be promoted on the date of assignment/attachment to a higher graded position or the day after release from AGR status.  The DOR will be the date the officer attained maximum time in grade or the date on which assigned/attached to a position in the higher grade, whichever is earlier (emphasis added).

15.  Title 10, U.S. Code, section 1211 (Officers – ARNG of the United States), states when an officer of the ARNG, to whom temporary Federal recognition has been extended is appointed as a Reserve Commissioned Officer of the Army for service as a member of the ARNG of the United States, his appointment shall bear the date of the temporary recognition and shall be considered to have been accepted and effective on that date.  Section 14308(f) states the effective date of a promotion of a Reserve Commissioned Officer of the Army, who is extended Federal recognition in the next higher grade in the ARNG, shall be the date on which such Federal recognition in that grade is so extended.

DISCUSSIONS AND CONCLUSIONS:

1.  The applicant's request for correction of his DOR and effective date of promotion to the rank/grade of LTC/O-5 was carefully considered.

2.  With respect to his DOR, Army Regulation 135-155, the governing Army regulation, states the DOR (upon promotion) will be the date the officer attained maximum time in grade or the date on which assigned/attached to a position in the higher grade, whichever is earlier.  The evidence of record shows he assumed an LTC position on 1 June 2011; therefore, his DOR should be corrected to that date.

3.  He contends his effective date of promotion should be corrected and he should be paid back pay and allowances resulting from this correction.  Title 10, U.S. Code, section 14308(f) states the effective date of a promotion of a Reserve Commissioned Officer of the Army, who is extended Federal recognition in the next higher grade in the ARNG, shall be the date on which such Federal recognition in that grade is so extended.  The evidence of record shows he was extended Federal recognition effective 27 March 2012; therefore, he is not entitled to correction of his effective date of promotion to an earlier date.

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 the State Army National Guard records and the Department of the Army records of the individual concerned be corrected by amending NGB Special Orders Number 114 AR, dated 10 April 2012, to show his DOR as 1 June 2011.

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 correcting his effective date of promotion to the rank/grade of LTC/O-5 or paying him any back pay or allowances as a result of these Proceedings.



      ____________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)                                         AR20090019274



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120015137



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1