IN THE CASE OF:

		BOARD DATE:    26 September 2013

		DOCKET NUMBER:  AR20130001473 


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 the date of rank (DOR) for his promotion to Major (MAJ) be changed to an earlier date, his records referred to special selection boards (SSBs) as appropriate, and his retirement pay recalculated accordingly. 

2.  The applicant states that in February 1997, he transitioned from a traditional Pennsylvania Army National Guard (PAARNG) Soldier to the PAARNG AGR (Active Guard Reserve) Force.

	a.  In June 1997, he was DA Select for MAJ, but had to decline due to AGR controlled grade availability.  In August 2001, a controlled grade was made available, and he was promoted to MAJ and received Federal Recognition (FEDREC) orders with an effective date of 22 August 2001, but with a DOR of 
11 February 1998.  This DOR is in keeping with the maximum time in grade (TIG) policy referenced in Army Regulation 135–155, paragraph 4-21e(2).  Based on this DOR, he should have appeared before the 2005 DA Reserve Components Selection Board for Lieutenant Colonel (LTC), Army Promotion List (APL) board in 2005. 

	b.  However, because of an administrative error on his state orders, his DOR indicated in the G1 database remained the effective date of August 2001, not the February 1998 date as shown on his FEDREC orders.  There is a hand-annotated comment stating “Title 32 AGR PED 980211” at the top of his state promotion order.  Unfortunately, that promotion eligibility date (PED) was never 


properly entered into the system.  Consequently, as he was erroneously considered not eligible for the 2005 board, he was never notified of any board action and never had the opportunity to submit his packet for consideration.

	c.  Compounding the issue was the fact that he was deployed to Afghanistan in support of Operation Enduring Freedom (OEF) from June 2004 to August 2005 and disconnected from the usual AGR administrative support network.  Had that not been the case, the error may have been discovered in time to appear before the 2005 board, which convened on 13 September 2005.  At the time of the board, he had met the promotion standards for maximum time in grade and military education, had multiple company commands, held key staff assignments as a field grade officer, and also deployed.  

	d.  Furthermore, in 2005 the Army had an 86 percent MAJ to LTC selection rate.  Based on those facts, there is no reason to think he would not have been selected had he submitted his promotion packet to the September 2005 selection board.  Upon his return from OEF the error concerning his DOR was discovered during a discussion with the Deputy G1 and subsequent records review in approximately March 2006.  

	e.  However, he was advised that it was too late to do anything about it, as he would be appearing before the next LTC board the following year.  As a result, he did not appear before the LTC board until December 2007, and was then DA select for LTC in January 2008.  However, AGR controlled grades being what they are, he was not actually promoted until December 2011.  At the time of his promotion to LTC, his effective date was 11 December 2011, with a DOR of 
10 February 2005.  This DOR of 2005 reflects the ripple effect resulting from the adjustment made in the G1 database to his DOR for promotion from captain (CPT) to MAJ (from 2001 to 1998) and serves as proof that an error was made with his initial DOR.  

	f.  Not appearing before the LTC Board when he should have in 2005 had the following short and long-term repercussions:

		(1)  Prevented him from being placed on the PAARNG AGR LTC order of merit list (OML) to compete for an LTC controlled grade for 3 years.

		(2)  Prevented him from being considered for LTC assignments for 
3 years.  Upon his return from OEF, he served in a MAJ assignment from August 2005-August 2008.  He was assigned to an LTC Deputy Commander slot in November 2008, and again in February 2010 as a Battalion Commander, but remained a MAJ until December 2011. 


		(3)  Prevented him from competing for or being considered for a Senior Service College (SSC).  Not being an SSC graduate has significantly hindered his ability to compete for brigade-level command.

		(4)  Effectively eliminated the possibility of becoming an AGR O6 before his mandatory retirement date (MRD) in May 2013, and thereby extending his MRD to 2015. 

		(5)  Significant loss of pay differential between MAJ-LTC from 2005-2011.  Significant loss of retirement pay within the “high-three” system:  With a promotion date of December 2011 and an MRD of May 2013, his retirement pension will only be calculated using approximately 18 months of LTC base pay, as opposed to three full years. 

		(6)  Using the correct promotion timeline, had he been promoted to LTC in 2005 rather than 2011, the probability exists that he could have been promoted to COL for an indeterminate amount of time prior to an extended MRD of 2015, and his retirement would have been based on an even higher base pay formula. 

		(7)  He requests back pay differential for MAJ-LTC from 10 February 2005-10 December 2011 and adjusted retirement pay formula based on LTC base pay for three years rather than 18 months.

3.  The applicant provides copies of a:  

	a.  6 June 1997 U.S. Total Army Personnel Command (TAPC) letter, Subject:  Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty with two endorsements.

	b.  22 August 2001 Department of the Army and Air Force National Guard Bureau (NGB) Special Orders Number 227 AR showing he was granted FEDREC as a MAJ, effective 22 August 2001.

	c.  8 August 2001 promotion orders to MAJ with a DOR of 8 August 2001.

	d.  30 December 2005 U.S. Army Human Resources Command (AHRC) memorandum, Subject:  Promotion List for LTC, Army Promotion List (APL), U.S. Army Reserve.

	e.  19 May 2005 document notifying him he had completed 50 percent of the Command and General Staff College Course.

	f.  28 January 2008 Department of Military and Veterans Affairs, Adjutant General's Office, Commonwealth of Pennsylvania, memorandum, Subject:  Eligibility for AGR Promotion as a Reserve Commissioned Officer.

	g.  DA Boards Results, Army National Guard, showing the applicant was "Recommended 1st Time Considered." 

	h.  9 February 2012 Commonwealth of Pennsylvania, Department of Military and Veterans Affairs, Orders 040-1029, showing he was promoted to LTC with an effective date of 19 December 2011 and DOR of 10 February 2005.

	i.  22 February 2012 Departments of the Army and Air Force, NGB, Special Orders Number 56 AR, showing the applicant was granted FEDREC as an LTC effective 19 December 2011.

	j.  22 February 2012 NGB Memorandum, Subject:  Promotion as a Reserve Commissioned Officer of the Army showing he was promoted to LTC with an effective date of 19 December 2011 and DOR of 10 February 2005.

	k.  29 August 2005 Commonwealth of Pennsylvania, Department of Military and Veterans Affairs, Orders 241-242, ordering him to full-time National Guard duty in the AGR as a MAJ.

	l.  29 October 2008 Commonwealth of Pennsylvania, Department of Military and Veterans Affairs Orders 303-1-39, showing he was transferred from the unit commander position to an assistant operations officer position. effective 4 August 2008.

	m.  30 October 2008 Commonwealth of Pennsylvania, Department of Military and Veterans Affairs Orders 304-1054, showing he was transferred from an assistant operations officer position to an operations officer position effective 
2 September 2008.  

	n.  25 November 2008 Commonwealth of Pennsylvania, Department of Military and Veterans Affairs Orders 330-1011, showing he was transferred from an operations officer position to a deputy commander position effective 
4 November 2008.

	o.  1 October 2009 Commonwealth of Pennsylvania, Department of Military and Veterans Affairs Orders 274-1008, showing he was transferred from the deputy commander position to the unit commander position effective  
20 February 2012. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that all of his military service has been as a member of the PAARNG.  Following enlisted service he was appointed as a second lieutenant.  He continued to serve and as of the date of his application he was an LTC.  In his response to the NGB advisory opinion he indicates he was retired.

2.  In the processing of this case an advisory opinion was received from the Chief, Personnel Policy Division, NGB.  The opining official recommended the applicant's request be partially granted and related that:

	a.  The applicant went before the 2007 APL LTC Board and was DA selected for promotion; however, due to control grades for AGR LTC's he was not promoted until December 2011.  The errors that occurred regarding his MAJ promotion orders are not the fault of the applicant.  Nonetheless, it prevented him from going before the LTC board in 2005.  

	b.  It is recommended that the applicant be placed before an SSB.  The SSB would determine if he should have been promoted as a result of the 2005 DA APL LTC Board, pending available control grade and the state OML.  If it is determined that the applicant should have been promoted earlier than 
19 December 2011, his records should be recalculated based on the new effective date, to adjust the promotion eligibility date for colonel (COL), retirement pay and all other pay and allowances that may have been incorrect as a result of this error.

3.  The applicant was provided a copy of the advisory for his comments.  In his response he stated he concurred with the advisory opinion, subject to his concerns listed below:

	a.  He is concerned with the SSB process.  With other boards he was able to prepare and review the packet prior to the board.  He does not know the packet requirements for an SSB.  As a retiree, his ability to access records and secure documents in a timely manner is significantly reduced.  His original appeal packet, dated 9 January 2013, presented his case for promotion on 2005, along with proof of his having the required military education.  Furthermore, he believes most of the pertinent information needed for a Board would be available for retrieval from the interactive Personnel Electronic Records Management System (iPERMS), but he doesn’t know, as a retiree if he still even has an iPERMS file.  He would hate to have the Board's decision swayed by an incorrect perception of lack of concern or due diligence on his part.

	b.  His second concern is that the SSB finding will result in a halt to the appeal process.  Should the board determine that he was not DA select in 2005, he still requests that his back-pay and retirement be adjusted to show 
4 November 2008, which would account for being DA Select by the 2007 APL LTC Board, and reflect the opinion presented by the PAARNG G1 in his 12 April 2013 memorandum accompanying the advisory opinion.

4.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that:

	a.  Officers selected by an SSB are eligible for the same date of rank that they would have received by the original board in which the error occurred.  

	b.  Reserve officers selected by a mandatory board will be promoted provided they are assigned or attached to a position in the higher grade.  A Reserve officer who is selected for promotion by a mandatory promotion board, but who is not assigned/attached to a higher-graded position, will be promoted on the date of assignment/attachment to a higher-graded position.  The DOR will be the date the officer attained the maximum time in grade or the date on which assigned/attached to a position in the higher grade, whichever is earlier.  The effective date of promotion cannot be prior to approval of the respective board. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DOR for his promotion to MAJ should be changed to an earlier date, his records be referred to SSBs as appropriate, and his retirement pay recalculated accordingly.

2.  When he was DA selected for promotion to MAJ his DOR was incorrectly coded to reflect the effective date rather than his promotion eligibility date.  He received FEDREC as a MAJ on 22 August 2001 with a DOR of 11 February 1998.  Based on that DOR he should have appeared before the 2005 DA Reserve Components Selection Board, APL for LTC.  As a result of an administrative error he did not go before the 2005 APL Board.

3.  The NGB opining official stated the applicant's record should be placed before an SSB to determine if he should have been promoted as a result of the 2005 DA APL LTC Board, pending available control grades and the State OML.  

4.  However, notwithstanding the NGB advisory opinion, the applicant did not exercise due diligence in monitoring his own professional career.  The alleged 


error occurred in August 2001, over 12 years ago.  Additionally, there is no evidence that, if he had been selected for promotion earlier, there would have been an AGR position available for him, or that he would have accepted said position.

5.  In view of the above, the applicant's request should be denied.

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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _  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)                                         AR20130000543



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ABCMR Record of Proceedings (cont)                                         AR20130001473



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