IN THE CASE OF:	  

		BOARD DATE:	  7 November 2013

		DOCKET NUMBER:  AR20120022967 


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 her record to show she was promoted to the rank of lieutenant colonel (LTC)/O-5 effective 15 January 2010, the date she reached maximum time in grade (TIG).

2.  The applicant states she was eligible to be promoted to LTC based on the September 2008 LTC Department of the Army (DA) Selection Board.  She requested to be promoted while she was deployed to Iraq in accordance with a National Guard Bureau (NGB) memorandum entitled "Promotion of Mobilized Army National Guard Officers who are Selected for Promotion by a Department of the Army Mandatory Selection Board."  She further states the U.S. Army Human Resources Command was required to promote her on 15 January 2010 when she reached maximum TIG and was on Title 10 orders; however, the New York Army National Guard (NYARNG) did not process her promotion as required.

3.  The applicant provides:

* two memoranda
* an Information Paper
* a letter with enclosure to a Member of Congress
* three pages of electronic mail
* Orders 293-0002
* Orders 150-0004
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 215 (Correction to DD Form 214)

CONSIDERATION OF EVIDENCE:

1.  Having served in various positions and completed several military training courses, Orders 352-029, dated 18 December 2002, show the applicant was promoted to the rank of major (MAJ) effective 15 January 2003.

2.  NGB Special Orders Number 12 AR, dated 15 January 2003, show she was extended Federal recognition for promotion to MAJ, effective 15 January 2003.

3.  Evidence shows she was considered and selected for promotion to LTC by the DA Mandatory Promotion Board held 8 September through 24 September 2008.

4.  On 18 February 2009, she was ordered to active duty as a member of her unit for a period not to exceed 400 days in support of Operation Iraqi Freedom (OIF).

5.  Evidence contained in her records shows while she was deployed in support of OIF, she was involved in a Mine Resistant Ambush Protected vehicle accident on 13 October 2009.

6.  Her record contains a DD Form 214 for the period ending 2 February 2010, which shows she was honorably released from active duty for completion of required active service.  Item 18 (Remarks) shows she served in Iraq for the period 27 March 2009 through 9 January 2010.

7.  She was again ordered to active duty on 3 February 2010.  On 1 August 2012, the applicant was honorably retired in the rank of MAJ.  The narrative reason for separation indicated on her DD Form 214 is "Disability, Temporary."

8.  The applicant provides and her record contains a DD Form 215 which shows her DD Form 214 was corrected to show her rank as LTC with an effective date of pay grade of 1 August 2012.

9.  During the processing of this case, on 25 February 2013, an advisory opinion was obtained from the Deputy Chief, Personnel Policy Division, NGB.  The advisory official recommended approval of the applicant's request to adjust her date of rank to LTC to 15 January 2010, based on NGB Policy Memorandum #04-0025, dated 1 September 2004.  The advisory official opined:

   a.  Based on NGB Policy Memorandum #04-0025, dated 1 September 2004, subject:  Clarification of Policy to Promote DA Select Mobilized Officers at Maximum Time in Grade, paragraph 3 states:  "ARNG Officers recommended for promotion to the grades captain (CPT) through LTC mobilized under the provisions of Title 10, U.S. Code, sections 12301(a), 12302 and 12304 and who are on an approved mandatory selection board promotion list who reach their maximum time in grade (first lieutenant=5 years, CPT=7 years, MAJ=7 years) will be promoted without regard to a position vacancy unless that officer has voluntarily delayed or declined promotion."

   b.  The same memorandum goes on to state in paragraph 4:  "In the event the State either does not desire to promote the officer or does not have a vacant position at the higher grade against which to promote the officer, the officer will sign a statement acknowledging that he or she is being promoted due to reaching maximum time in grade and that if the officer does not occupy a position at the higher grade within six months after redeployment the officer will be involuntarily transferred to the Individual Ready Reserve."

   c.  The applicant was selected by a DA Mandatory Promotion Board for promotion to LTC, met the maximum time in grade as a MAJ and was in a mobilized status under Title 10.  Following the instructions of the policy memorandum referenced in paragraph "a" and "b" above, the applicant prepared and submitted paperwork while in a deployed environment requesting promotion to LTC.  The NYARNG did not act on the Soldier's request to be promoted under NGB Policy Memorandum #04-0025.

   d.  Upon her return from deployment, the applicant was separated for medical reasons due to injuries incurred while mobilized, transferred to the U.S. Army Reserve Control Group (Retired) and placed on the Temporary Disabled Retired List.  Her separation documents have been amended to read LTC with a DOR of 1 August 2012.  The State concurs with this recommendation.

10.  On 27 February 2013, a copy of the advisory opinion was forwarded to the applicant for information and to allow her the opportunity to submit comments or a rebuttal.  She did not respond.

11.  NGB Memorandum, subject: Clarification of the Policy to Promote DA Select Mobilized Officers at Maximum TIG (NGB-ARH Memorandum #04-0025), dated 1 September 2004, states in paragraph 3 that ARNG officers recommended for promotion to the grades of CPT through LTC under the provisions of Title 10, U.S. Code, sections 12301, 12302, and 12304, who are on an approved mandatory selection board promotion list who reach their maximum TIG will be promoted to the next higher grade without regard to position vacancy unless that officer has voluntarily delayed or declined promotion.

12.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers, Other Than General Officers) prescribes the policies and procedures for the promotion of Reserve and ARNG officers.  Chapter 2 (Promotion Eligibility and Qualification Requirements), Table 2-1 (TIG Requirements for Commissioned Officers, Other Than Commissioned Warrant Officers), provides that the maximum TIG as a MAJ for promotion to LTC is 7 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that her record should be corrected to show she was promoted to LTC effective 15 January 2010, the date she reached maximum time in grade, has been carefully examined and found to have merit.

2.  The available evidence shows the applicant was promoted to MAJ on 
15 January 2003.  She was selected for promotion to LTC by the DA Mandatory Promotion Board in September 2008.  She reached her maximum TIG of 7 years as a MAJ on 15 January 2010.  There is no evidence that she voluntarily delayed or declined promotion.  Although she was mobilized to active duty under Title 10, U.S. Code, section 12302, on 18 February 2009, she attained maximum TIG as a MAJ on 15 January 2010, while she was on active duty.  

3.  Therefore, she is entitled to promotion to LTC with an effective date and DOR of 15 January 2010, and to the associated retroactive pay and allowances as the result of the promotion.

BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all State ARNG records and DA records of the individual concerned be corrected by:

   a.  promoting her to LTC with an effective date and DOR of 15 January 2010  and paying her any pay and allowances due her based on this correction; and

   b.  amending her DD Form 214 for the period ending 2 February 2010 to show her rank/grade as LTC/05 and her effective date of pay grade as 
15 January 2010.




      _______ _   _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)                                         AR20120022967





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ABCMR Record of Proceedings (cont)                                         AR20120022967



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