IN THE CASE OF:	  

		BOARD DATE:  10 January 2013

		DOCKET NUMBER:  AR20120018243 


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 reconsideration of his earlier petition for promotion to captain in the Idaho Army National Guard (IDARNG).  

2.  The applicant states he was recommended for promotion by his unit in 2004 and denied by the State G-1 because he was not in a flight status which was a requirement for promotion.  He claims he was later selected for promotion by a mandatory board and was still not promoted.  He claims he filed a dispute with the Inspector General (IG) but nothing came of it.  He claims he was finally able to clarify the regulatory policy which showed he was eligible to be promoted; however, by that time there were no captain positions available.  

3.  The applicant provides the documents identified in the “Supporting Documentation Information” section of his application in support of his request.  

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110025089, on 22 February 2012.  



2.  During the original review of the case, the Board determined that in regard to vacancy promotions, there was no evidence to show he was recommended for promotion to captain by his chain of command.  Further, it found no evidence that he was told the only reason he was not promoted was because he was not in a flight status.  The Board concluded an IG investigation could have helped to confirm the applicant’s contention.  In regard to the mandatory promotion, the Board concluded he would have been promoted based on this selection on his Promotion Eligibility Date (PED); however, he was never assigned to a captain position; in addition, the applicant requested a delay of promotion prior to reaching his PED.  Finally, the Board noted the applicant ultimately accepted a Regular Army appointment and was discharged from the ARNG without having met the criteria for promotion to captain.  

3.  The applicant provides statements from two former battalion commanders and electronic mail (e-mail) messages from an IG representative as new evidence.  The applicant’s former battalion commander for the period June 2007 through June 2009 states a promotion packet was submitted on the applicant and was returned from the State in May 2008; however, it was returned because the State G-1 strength manager stated he could not be promoted while not in a flight status.  His battalion commander, who took command in June 2009 states he was informed the applicant had been submitted for promotion in May 2008 but was not promoted because the State G-1 strength manager stated he could not be promoted if he was not in a flight status and that this was the only reason why the applicant was not promoted.  He claims that while the applicant was in his command he wanted to promote him and the only reason he did not was because of the information provided by the State G-1 strength manager.  

4.  The applicant provides e-mail messages between him and an IG representative that contain no information regarding IG investigation findings.  The messages do indicate the applicant’s problem had been resolved and his complaint closed on 23 September 2010.  

5.  The record shows he was appointed a second lieutenant in the IDARNG on 15 May 2004, and was promoted to first lieutenant (1LT) on 14 May 2006.  

6.  On 14 April 2010, the IDARNG issued him a certificate of eligibility for promotion based on his selection for promotion to captain by a mandatory board.  His PED was established as 14 May 2011.  

7.  On 30 April 2011, the applicant submitted a request for delay of promotion until 13 May 2014.  This request was approved by the IDARNG on 11 May 2011.  



8.  On 22 October 2011, the applicant was discharged from the ARNG and on 
23 October 2011, he accepted an appointment in the RA as a 1LT and was subsequently promoted to captain on 8 May 2012.    

9.  Army Regulation 135-155 prescribes policy and procedures used in the selection and promotion of commissioned officers of the ARNG 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) outlines the service requirements for promotion and indicates that for promotion to CPT the minimum years of service in the lower grade is 
2 years and the maximum years in the lower grade is 5 years.

10.  National Guard Regulation 600-100 (Commissioned Officers — Federal Recognition and Related Personnel Actions) prescribes policies and procedures governing the appointment, assignment, temporary Federal recognition, Federal recognition, reassignment, and other personnel issues related to commissioned officers of the ARNG.  It states commissioned officers of the ARNG are appointed by the several States.  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, as provided by law.

11.  National Guard Regulation 600-100, chapter 8, provides for promotion of officers.  It states the promotion of officers in the ARNG is a function of the State, and as in original appointments, a commissioned officer promoted by State authorities has a State status in the higher grade under which to function. However, to be extended Federal recognition in the higher grade, the officer must have satisfied the promotion requirements.  Paragraph 8-2a(2) states the DOR as a Reserve of the Army for an ARNG traditional commissioned officer, who is promoted as a result of selection by a mandatory selection board, is the date the Chief, NGB, extends Federal recognition.

12.  Title 10, U.S. Code, sections 14304(b) and 14316(d), state that a mobilized
Reserve Component officer who has been recommended for promotion to the
grades of CPT through LTC by a mandatory promotion board and who is on an approved promotion list shall be promoted without regard to the existence of vacancy or placement against a position of a higher grade under the policy memorandum on the date on which the officer completes the maximum years of service as specified in section 14304(a), unless the officer has voluntarily delayed or declined the promotion.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s reconsideration request and the new evidence and argument has been carefully considered.  However, there remains insufficient evidence to support this claim.  

2.  The battalion commander statements indicate the only reason the applicant was not promoted under a vacancy promotion was because the State G-1 strength manager informed them he could not be because he was not on flight status.  These statements are not supported by any documentary evidence of record or promotion documents.  Further, notwithstanding the battalion commanders’ statements indicating they wanted the applicant promoted, there is no evidence they pursued his assignment to an authorized captain position.  As a result, absent any evidence of record or independent documentary evidence corroborating the information provided in the supporting statements, these alone are not sufficiently compelling to support a conclusion there was any error or injustice related to the applicant not receiving a vacancy promotion.  

3.  Further, the evidence of record confirms the applicant requested a delay of his promotion subsequent to his selection by a mandatory promotion board, and that this delay was approved by the appropriate ARNG officials.  The IG e-mails provided by the applicant also fail to show any substantive findings regarding an error or injustice in the applicant not being promoted and seem to show his issue was considered to have been resolved based on information he provided.  As a result, given the promotion of ARNG officers is a function of the State, there is an insufficient evidentiary basis to support amendment of the original Board decision in this case, and/or to grant the requested relief. 

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 to amend the decision of the ABCMR set forth in Docket Number AR20110025089, dated 22 February 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)                                         AR20120018243



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120018243



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1