BOARD DATE:	  8 August 2013

		DOCKET NUMBER:  AR20130000591 


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 military records to show his date of rank (DOR) for major, pay grade O-4, as 1 December 2008.

2.  The applicant states the promotion board sent him a letter stating his DOR would be 1 December 2008.  The DOR he was given is based upon his transfer into the U.S. Army Reserve (USAR).  He was an Army National Guard (ARNG) Active Guard Reserve (AGR) Soldier at the time of his promotion.  He delayed his promotion effective date, but not his DOR, to continue serving in an AGR status.  When The Adjutant General (TAG) informed him that he would be passed over for promotion in the ARNG for political reasons, he requested his promotion in the USAR.  He was informed by the ARNG that his DOR would be 
1 December 2008; but, the USAR promoted him with a DOR of 15 February 2009.  He has since appealed to the USAR for a correction and he was told that he was in the ARNG at the time; therefore, he could not receive a DOR earlier than the transfer date.  He requested ARNG review the record, but they have not taken any action because he is not an ARNG Soldier.   Upon accession into the USAR AGR program, he noticed the DOR was incorrect.  He has made several requests to have the problem resolved.  He was first informed by his unit administrator that the DOR was correct.  He contacted the ARNG and he was told they would look into it.  This 2-month difference in his DOR is essential, because the board for LTC announced the cutoff date as 31 December 2008. Therefore, the correction is required for him to be properly considered.



3.  The applicant provides copies of:

* Memorandum, from Joint Force Headquarters, Connecticut, dated 8 July 2008
* Orders B-05-903495, U.S. Army Human Resources Command (HRC), dated 20 May 2009
* DA Form 4187 (Personnel Action), Correction of DOR, dated 6 November 2012
* Email, 88th Reserve Support Command, dated between 6 November and 3 December 2012

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  Orders Number 310-078, HRC, dated 6 November 2001, announced the applicant's promotion to captain, pay grade O-3 with an effective date and DOR of 1 December 2001.  He entered active duty in an AGR status on 10 December 2005.

3.  A memorandum for the applicant, dated 8 July 2008, from the Deputy Chief of Staff for Personnel, Connecticut ARNG (CTARNG), in essence stated:

	a.  A promotion board had convened on 10 March 2008 and considered him for promotion to the next higher grade.

	b.  He was informed that he had been selected for promotion and his DOR would be 1 December 2008, and that this date would be used as a basis for determining his eligibility for his next Reserve promotion.

	c.  He was informed of his options, which included acceptance of promotion with continued assignment in the ARNG provided he was in a promotable position; delay of promotion with continued assignment in the ARNG in the present grade; delay of acceptance with subsequent assignment to the USAR; or to decline promotion with continued assignment in the ARNG.

	d.  He was informed that for promotion to major, he could delay his promotion for any period of time not to exceed 3 years from the date the promotion board had adjourned.  If he delayed for less than 3 years, he must request an extension prior to the expiration of the delay, not to exceed a total of 3 years.  However, he could be promoted at any time in the ARNG based on a unit vacancy.

	e.  He was also informed that acceptance of promotion with a subsequent assignment to the USAR required him to be transferred from the CTARNG the day following such acceptance.

	f.  His option election is not available.

4.  An NGB Form 22 (Report of Separation and Record of Service), effective 
14 February 2009, shows the applicant was transferred to the Individual Ready Reserve.

5.  Orders C-02-903815, HRC, dated 25 February 2009, transferred the applicant to a troop program unit effective 24 February 2009.

6.  Orders B-05-903495, HRC, dated 20 May 2009, announced the applicant's promotion to major with an effective date and DOR of 15 February 2009.

7.  A DA Form 4187, Correction of DOR, dated 5 November 2012, indicates the applicant requested his DOR for major be corrected to 1 December 2008.  He stated that he had "delayed the effective date in awaiting a control grade."  When informed that a control grade was not forthcoming, he accepted the promotion and left the ARNG AGR program.  He had attached both the letter announcing his promotion and his promotion orders.

8.  An email, dated 6 November 2012, from the 88th Reserve Support Command to HRC, requested that the applicant's DOR for major be changed to 1 December 2008 as soon as possible.

9.  Email from elements of the 88th Reserve Support Command, dated between 26 November and 3 December 2012 stated the USAR could not amend the applicant's DOR to 1 December 2008 because he was a member of the CTARNG at that time.  Furthermore, it stated that if the ARNG could not amend his DOR, then the applicant could apply to this Board for relief.

10.  In the processing of this case, an advisory opinion was obtained from the Chief, Officer Promotion Management, HRC.  This opinion stated that based on the applicant's assignment to the USAR on 14 February 2009, the earliest DOR he could receive was 15 February 2009, in accordance with Army Regulation 135-155, paragraph 4-21.  The applicant's assertion that his DOR to major was administratively incorrect and that he should have been promoted to major effective 1 December 2008, the date he was initially eligible to be promoted to major in the CTARNG, is without merit.

11.  On 27 June 2013, the applicant responded to the advisory opinion.

	a.  He stated the advisory opinion is incorrect in its basic reading/ interpretation of the regulation and it represents the problem he has been having with the correction of the obvious error.

	b.  He contends that per the letter concerning the promotion board and his options, and the applicable regulations, his DOR should be 1 December 2008.

	c.  He argues that the USAR is failing to recognize his transfer from an AGR status into the ARNG.

	d.  He contends that Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 4-15c, states commissioned officers serving on active duty (AD) in an AGR status may be promoted to or extended Federal Recognition in a higher grade provided the duty assignment of the officer requires a higher grade than that currently held by the officer.  Effective date of promotion of AGR officers will be as shown in paragraph 4-21.  AGR officers who have been selected for promotion and are not assigned to a position calling for a higher grade will receive a delay of promotion without requesting such action.  AGR officers will remain on the promotion list and serve on AD in the AGR program until they are removed from the promotion list; promoted to the higher grade following assignment to a higher-graded position; or promoted to the higher grade following release from AD.

	e.  He further contends that Army Regulation 135-155, paragraph 4-21d states AGR officers selected by a mandatory board will be promoted provided they are assigned 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 to a position in the higher grade will be promoted on the date of assignment 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 (TIG) or the date on which assigned to a position in the higher grade, whichever is earlier.

	f.  He contends the advisory opinion is incorrect by stating that the earliest DOR he can have is 15 February 2009, based on the previous paragraph.  This is because his maximum TIG was 1 December 2008 which is earlier than the date of his assignment.

12.  Army Regulation 135-155 provides policy for selecting and promoting commissioned officers of both the ARNG and the USAR.

	a.  Paragraph 4-6, promotion on transfer, states an ARNG officer with honorable service who is transferred to the USAR may be transferred in grade to the USAR.

	b.  Section III, Dates of Promotion, paragraph 4-15c states commissioned officers serving on AD in an AGR status may be promoted to or extended Federal recognition in a higher grade provided the duty assignment/attachment of the officer requires a higher grade than that currently held by the officer.  The effective date of promotion of AGR officers will be as shown in paragraph 4-21. AGR officers who have been selected for promotion and are not assigned/ attached to a position calling for a higher grade will receive a delay of promotion without requesting such action.  AGR officers will remain on the promotion list and serve on AD in the AGR program until they are: (1) Removed from the promotion list under paragraph 3-18; (2) Promoted to the higher grade following assignment/attachment to an AGR position calling for the higher grade; or 
(3) Promoted to the higher grade, if eligible, following release from AD.

	c.  Paragraph 4-21d, Effective Dates for Promotion of AGR officers, states AGR officers selected by a mandatory board will be promoted provided they are assigned/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 TIG or the date on which assigned/attached to a position in the higher grade, whichever is earlier.

	d.  Table 2–1, TIG Requirements for promotion of captains, pay grade O-3 to major, pay grade O-4:  Minimum Years: 4; Maximum years: 7.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show his DOR for major, pay grade O-4, as 1 December 2008.  Because he was promoted in the ARNG, he only delayed his effective date, and not his DOR.

2.  Notwithstanding the advisory opinion, the available evidence clearly shows the applicant was serving in an AGR position with the CTARNG at the time of his mandatory selection for major.  He was subsequently notified of his promotion selection via memorandum wherein he was informed that his DOR would be
1 December 2008.

3.  Because the CTARNG did not have a higher-graded position for the applicant, he chose to delay his promotion and acquire another position in the USAR.  He was promoted with an effective date and DOR of 15 February 2009.

4.  While the applicant's effective date of promotion is properly 14 February 2009, regulatory guidance provides that the applicant's DOR for major is based on his mandatory promotion selection.  Accordingly, the orders published by HRC on 
20 May 2009 should be amended to show his DOR as 1 December 2008.

5.  Based on the above correction, the applicant's records should be reviewed to determine if this change makes him eligible to be considered for promotion selection to lieutenant colonel, pay grade O-5.

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

	a.  amending Orders B-05-903495, HRC, dated 20 May 2009, to show his DOR as 1 December 2008;

	b.  correcting all appropriate military personnel data bases to reflect his DOR for major as 1 December 2008; and


	c.  reviewing his records based on this correction to determine his eligibility for promotion consideration to lieutenant colonel, pay grade O-5.




      _______ _  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)                                         AR20130000591



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ABCMR Record of Proceedings (cont)                                         AR20130000591



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