IN THE CASE OF:	  

		BOARD DATE:  10 October 2013

		DOCKET NUMBER:  AR20130001045 


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 request to adjust his active date of rank (ADOR) to major (MAJ) to 15 December 2006.

2.  He states the main argument from the point of contact from the U.S. Army Human Resources Command (HRC) Officer Promotions Branch was that he required additional time to attain the mandatory experience and qualifications for promotion to lieutenant colonel (LTC).  He quotes the regulation concerning the requirements for promotion to LTC and lists his qualifications.  He maintains he meets those requirements.

3.  The applicant provides:

* self-authored statement
* excerpts from Title 10, U.S. Code
* excerpts from Department of the Army Pamphlet 600-3 (Commissioned Officer Professional Development and Career Management)
* excerpts from Department of Defense Instruction (DODI) 1310.01
* National Guard Bureau (NGB) Form 23 (Army National Guard (ARNG) Retirement Points History Statement )
* NGB Special Orders Number 318 AR, dated 15 December 2006
* Washington ARNG Orders 3231-003, dated 27 November 2006
* numerous officer evaluation reports (OER's) and service school academic evaluation reports
* e-mail, dated 15 November 2012

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 AR20120012808 on 23 October 2012.

2.  The applicant's self-authored statement and excerpts from Title 10, U.S. Code, section 741, and Department of the Army Pamphlet 600-3 were not previously considered by the Board.

3.  As stated in the applicant's previous case, he was promoted in the ARNG and granted Federal recognition to the rank of MAJ with an effective date and a date of rank of 15 December 2006.

4.  The applicant's NGB Form 23 shows the following membership status identifiers:

* 20 May 2006-22 January 2007 – ARNG mobilized service
* 23 January 2007-8 February 2009 – ARNG unit member
* 9 February 2009-9 February 2009 – ARNG active duty under Title 32
* 10 February 2009-21 February 2009 – ARNG unit member
* 22 February 2009-2 May 2010 – ARNG mobilized service
* 3 May 2010-30 November 2010 – ARNG unit member

5.  The applicant's OER's show he was consistently rated as a MAJ while assigned as the Battalion Executive Officer, Headquarters and Headquarters Detachment, 741st Ordnance Battalion, Tacoma, WA, from 23 April 2007 through 20 November 2010.

6.  He was separated from the ARNG effective 30 November 2010 and transferred to the U.S. Army Reserve Control Group (Reinforcement) for the purpose of being called to active duty which occurred the following day.

7.  In the previous Record of Proceedings, an advisory opinion was obtained from the Chief, Officer Promotions, HRC, who determined the applicant's ADOR of 2 April 2009 was the correct date.  The advisory official stated:

	a.  The adjustment was based in part on a computation of the applicant's active Federal commissioned service (AFCS) time spent in the rank of MAJ by using his certified DA Form 1506 (Service Computation), dated 11 May 2011, and his NGB Form 23, dated 2 February 2011.

	b.  The applicant was placed on the Active Duty List (ADL) on 1 December 2010, and by subtracting 608 days of AFCS, his ADOR was adjusted to 2 April 2009.

	c.  HRC stated the Assistant Secretary of Defense implemented the provision of adjusting the ADOR on 6 March 2000 and subsequently this change was incorporated into Army Regulation 600-8-29 (Officer Promotions) on 25 February 2005.  The Assistant Secretary of Defense stated in his memorandum that "'this change was necessary to ensure those officers (such as [Applicant]) are given the appropriate amount of time to gain the qualifications and experience necessary to be competitive for promotion to the next higher grade.'  "Keeping this in mind, [Applicant] currently has 30 months of evaluation time as a major and the current average of evaluation time for majors who fall into the primary zone of consideration for Lieutenant Colonel is 72 months."

8.  Title 10, U.S. Code, section 741 (Rank:  Commissioned Officers of the Armed Forces) states:

	a.  Except as otherwise provided by law, the date of rank of an officer who holds a grade as the result of a promotion is the date of his appointment to that grade.

	b.  Under regulations prescribed by the Secretary of Defense, the date of rank of a Reserve commissioned officer (other than a warrant officer) of the Army who is to be placed on the ADL and who has not been on continuous active duty since his original appointment as a Reserve commissioned officer in a grade above chief warrant officer five, or who is transferred from an inactive status to an active status and placed on the ADL or the Reserve Active Status List (RASL) may, effective on the date on which he is placed on the ADL or RASL, be changed by the Secretary concerned to a later date to reflect such officer's qualifications and experience.  The authority to change the date of rank of a Reserve officer who is placed on the ADL to a later date does not apply in the case of an officer who:

* has served continuously in the Selected Reserve of the Ready Reserve since the officer's last promotion
* is placed on the ADL while on a promotion list

9.  DODI 1310.1 states the authority to change the date of rank of a Reserve officer who is placed on the ADL to a later date does not apply in the case of an officer who has served continuously in the Selected Reserve or Ready Reserve since the officer's promotion.

10.  Title 10, U.S. Code, section 10143, states that within the Ready Reserve of each of the Reserve Components there is a Selected Reserve.  The Selected Reserve consists of units, and as designated by the Secretary concerned, or Reserves, trained as prescribed in section 10147(a)(1) of this title.

11.  Army Regulation 600-8-29 prescribes policy and procedures for promotion of commissioned officers.

	a.  Paragraph 1-10 states to be eligible for promotion to LTC, the officer must serve at least 3 years of time in grade as a MAJ.

	b.  Paragraph 7-2 states a special selection board (SSB) may be convened under Title 10, U.S. Code, section 628, to consider or reconsider commissioned or warrant officers for promotion when Headquarters, Department of the Army, discovers an officer was not considered from in or above the promotion zone by a regularly-scheduled board because of an administrative error.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's NGB Form 23, as well as his OER's, verifies that he served continuously in the Selected Reserve of the Ready Reserve since his last promotion on 15 December 2006.  Since there was no break in his service while he was assigned in the Selected Reserve, he fell into a different category than the one cited and used in his original Record of Proceedings.  Therefore, as cited in Title 10, U.S. Code, section 741, and DODI 1310.1, his ADOR is the date of his appointment to the grade of MAJ on 15 December 2006.

2.  Additionally, his records should be corrected to show he is entitled to an SSB if appropriate, as a result of this correction.

BOARD VOTE:

____X___  ____X___  ___X__ _  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20120012808, dated 23 October 2012.  As a result, the Board recommends that all Department of the Army and State ARNG records of the individual concerned be corrected by showing his ADOR to MAJ as 15 December 2006 and granting him entitlement to an SSB if appropriate as a result of this correction.



      _______ _  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)                                         AR20130001045



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ABCMR Record of Proceedings (cont)                                         AR20130001045



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