IN THE CASE OF:	  

		BOARD DATE:	  8 August 2013

		DOCKET NUMBER:  AR20120017050 


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 that his date of rank (DOR) to major (MAJ) be changed from 15 December 2005 to 13 April 2005.  Upon correction of his DOR to MAJ, he further requests his DOR to lieutenant colonel (LTC) be changed to 12 April 2012.

2.  The applicant states:

   a.  He was selected for promotion to MAJ by a mandatory Department of the Army Promotion Board on 21 July 2004.  He was selected to fill a vacancy in a higher position on 13 April 2005.  The Puerto Rico Army National Guard (PRARNG) failed to prepare documentation for promotion and Federal recognition in the higher grade; therefore, his promotion to MAJ was not granted until 15 December 2005.

   b.  Based on the adjustment of his DOR to MAJ from 15 December to 13 April 2005, he completed the maximum 7 years time in service and grade for MAJ.  Therefore, he should have been promoted to LTC on 12 April 2012.

3.  The applicant provides:

* 4 memoranda
* Orders 69-2
* Special Orders Number 349 AR
* Orders 237-5
* Orders A-06-917546
* Orders A-07-920528
* Orders A-07-021184
* Orders A-08-116564
* Orders A-08-116564A01
* North Atlantic Treaty Organization Travel Order Number 200114
* Orders 200-114
* Fiscal Year 2011 LTC APL National Guard
* Special Orders Number 7 AR
* Orders 349-501

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving as an LTC in the PRARNG.

2.  Evidence shows the applicant's DOR to captain (CPT) was 2 June 1997.

3.  The applicant was selected for promotion to MAJ with a promotion eligibility date of 21 July 2004, by a board which adjourned on 19 March 2004.

4.  The applicant provides and his record contains Orders 69-2, issued by Puerto Rico National Guard Element, Joint Forces Headquarters, dated 13 April 2005, which show the applicant was reassigned on 13 April 2005 to the position of Plans Officer (11A00) Paragraph 108, Line 03.

5.  Orders 237-5, issued by Puerto Rico National Guard Element, Joint Forces Headquarters, dated 30 November 2005, promoted the applicant to MAJ effective 15 December 2005.  The additional instructions show the applicant was promoted in Paragraph 108, Line 03.

6.  Special Orders Number 349 AR, dated 15 December 2005 authorized the applicant's Federal recognition as a MAJ, effective 15 December 2005.

7.  He was promoted to LTC with a DOR and effective date of 13 December 2012.

8.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) provides policy for selecting and promoting 

commissioned officers of both the Army National Guard of the United States (ARNGUS) and the U.S. Army Reserve (USAR), and warrant officers of the USAR.  Chapter 2 (Promotion Eligibility and Qualification Requirements) contains promotion eligibility criteria.  

9.  Paragraph 2-10 of the Reserve officer promotion regulation states, in pertinent part, that mandatory selection boards convene each year for consideration of ARNGUS and USAR officers on the Reserve Active Status List for promotion to CPT through LTC without regard to vacancies in the next higher grade.  First consideration for promotion will occur well in advance of the date the officer will complete the maximum years in grade.  Table 2-1 (Time in Grade Requirements Commissioned Officers, Other Than Commissioned Warrant Officers) outlines time in grade requirements for promotion and states, in pertinent part, that the minimum time in grade as a CPT for promotion to MAJ is 4 years and the maximum time in grade is 7 years.  For promotion to the rank/grade of LTC/O-5, the minimum years in lower grade (i.e., MAJ/O-4) is 4 years and the maximum years in lower grade is normally 7 years, subject to the needs of the Army.

10.  National Guard Regulation 600-100 provides procedures for processing all applications for Federal Recognition for commissioned officers.  Paragraph 8-4 states, in pertinent part, that ARNG commissioned officers will be mandatorily considered for promotion as Reserve commissioned officers of the Army when they meet the minimum promotion service requirements prescribed for the zone of consideration.  Paragraph 8-7 states, in pertinent part, that to be considered for Federal recognition and subsequent Reserve of the Army promotion to fill a unit vacancy, an ARNG commissioned officer must be meet the following requirements: be in an active status and meet medical standards, height and weight standards, time in grade requirement, time in service requirement, minimum military education requirement, minimum civilian education requirements, and Army Physical Fitness Test requirement.  

11.  Paragraph 8-16d of National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions) states, in pertinent part, that upon notification from the Commanding General, Army Reserve Personnel Command (AR-PERSCOM), that an officer has been selected for promotion, and he or she is being promoted in the State, a promotion packet containing a copy of AR-PERSCOM memorandum announcing promotion selection, copy of state promotion orders, evidence of completion of required civilian education, and a copy of current medical examination and Annual Medical Certificate will be forwarded to the Chief, National Guard Bureau.


12.  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.

13.  Title 10, USC, section 12203, provides that appointments of Reserve officers in the grades of lieutenant colonel and below shall be made by the President.  This authority has been delegated to the Secretary of Defense via Section 1, Executive Order 13384, dated 27 July 2005.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his effective date of promotion to MAJ should be adjusted to 13 April 2005 and therefore, upon correction, his DOR to LTC should be changed to 12 April 2012 was carefully considered and found to have merit; however, there are some errors the Army Board for Correction of Military Records (ABCMR) may not correct.  

2.  The applicant was promoted to CPT on 2 June 1997.  He was selected for promotion and was eligible for promotion with an effective date of 21 July 2004.  
The evidence of record shows he was assigned to a MAJ position in the ARNG on 13 April 2005.  Since he was assigned to an appropriate position or vacancy in the higher grade, he was entitled to be promoted to the higher grade on that date.  Therefore, his records should be corrected by adjusting his DOR to MAJ from 15 December 2005 to 13 April 2005.

3.  With respect to his DOR to LTC, 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 (based on the correction of the applicant's DOR to MAJ to 13 April 2005), he achieved maximum time in grade to LTC on 12 April 2012; therefore, his DOR should be corrected to that date.

4.  Title 10, USC, section 1552, the statutory authority for the ABCMR, gives the Board broad authority to correct Army records to remove errors or to remedy an injustice; however, the authority granted by this statute is not unlimited.  The ABCMR may only correct Army records.  The Board has no authority to correct records created by the other Services or the Department of Defense.

5.  Any correction by the ABCMR must comport with other laws.  The Board may not ignore a requirement contained in, or outcome dictated by, another statute.  Typically, the ABCMR achieves this by changing an operative fact in the record, thereby making a correction in compliance with that statute.  Where officer personnel issues are involved that require approval by the Secretary of Defense, the Board's hands are often tied.

6.  Consequently, based on the authorities cited above, any correction to the applicant's effective date of promotion would effectively amend the Secretary of Defense's action and goes beyond the authority of this Board.

7.  However, when a valid appointment has been accomplished, the Board can take action to grant an officer an earlier DOR if warranted by the facts in the case.  Based upon this guidance, and as a matter of equity, it would be appropriate to grant the applicant partial relief in this case by amending the applicant's DOR to MAJ to 13 April 2005 with an effective date of promotion of     15 December 2005.  Based on this correction, it would also be appropriate to amend the applicant's DOR to LTC to 12 April 2012 with an effective date of promotion of 13 December 2012.

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 amending the applicant's DOR to MAJ to read 13 April 2005 and his DOR to LTC to read 12 April 2012.








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 changing his effective date of promotion to MAJ to read 13 April 2005 and his effective date of promotion to LTC to read 12 April 2012.




      _______ _   _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)                                         AR20120017050





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ABCMR Record of Proceedings (cont)                                         AR20120017050



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