IN THE CASE OF:
BOARD DATE: 5 December 2013
DOCKET NUMBER: AR20130004976
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 date of rank DOR) as a major.
2. The applicant states he was selected by a special selection board (SSB) after he demonstrated that his record as considered by the promotion board was incomplete through no fault of his own. He notes that the third paragraph of the National Guard Bureau (NGB) memorandum states his DOR would be what it would have been had he been selected by the 2009 Reserve Components (RC) Army Promotion List (APL) board. He believes an earlier DOR is justified because his late selection was due to an error by the South Carolina Army National Guard (SCARNG).
3. The applicant provides copies of:
* South Carolina Military Department Memorandum for the applicant, dated 27 September 2009
* U.S. Army Human Resources Command (HRC) Memorandum for the applicant, dated 24 March 2010
* NGB Special Orders Number 197 AR, dated 9 September 2010
* NGB Memorandum for the applicant, dated 9 September 2010
CONSIDERATION OF EVIDENCE:
1. The applicant, a captain in the SCARNG and ARNG of the United States, whose DOR was 28 August 2003 was notified that he had been non-selected for
promotion by the Department of the Army RC APL board that convened on
9 March 2009.
2. A 24 March 2010 HRC memorandum informed him that he had been selected for promotion by a special selection board. It stated that his DOR would be
27 August 2010 or possibly earlier but not earlier than the 26 June 2009 Presidential approval of 2009 APL results.
3. NGB Special Orders Number 197 AR, dated 9 September 2010, announced Federal recognition of the applicant as a major with an effective date of 9 September 2010.
4. An NGB memorandum, dated 9 September 2010, informed the applicant of promotion to major with an effective date and a DOR of 9 September 2010. It specifically states, "
If this promotion is the result of
a special selection board, the date of rank, effective date for pay and allowances and position on the reserve active-status list is the same as if you had been recommended by the board which did not recommend or consider you (10 USC 4502(e)(2))."
5. Army Regulation 135-155 (ARNG and USAR - Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the ARNGUS and of commissioned and warrant officers of the USAR.
a. Table 2-1 (Time in grade requirements commissioned officers) shows the minimum years in lower grade for promotion from captain to major is 4 years and the maximum is 7 years.
b. Paragraph 4-17 states the DOR is the date the officer actually or constructively was appointed or promoted to a specific grade. It is the date used to determine the relative seniority for officers holding the same grade.
c. Paragraph 4-21 (Effective dates) provides that promotion of unit officers selected by a mandatory board will have a promotion date and effective date no earlier than the date the board is approved, provided they are assigned to a position in the higher grade. When the board approval is before assignment to the position in the higher grade, the effective date and the date of promotion will be the date of assignment to the higher-graded position.
6. National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions) provides procedures for processing applications for Federal recognition.
a. Paragraph 8-1 states the promotion of officers in the ARNG is a function of the State. As in original appointments, a commissioned officer promoted by State authorities has a State status in the higher grade under which to function.
b. Paragraph 8-2b states that, except as provided in this chapter, promotion will be accomplished only when an appropriate modified table of organization and equipment or table of distribution and allowances position vacancy in the grade exists in the unit.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests correction of his DOR to what it would have been if he had been selected by the 2009 RC APL board. He believes an earlier DOR is justified because the late selection was not his fault. It was caused by an error by the SCARNG.
2. The NGB memorandum that the applicant cites does not say the DOR should be the same as if he were selected by the 2009 APL. That memorandum states the DOR is the same.
3. There is no available substantiating evidence that prior to 9 September 2010 there was a vacant major's position into which the applicant could have been promoted.
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 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) AR20130004976
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ABCMR Record of Proceedings (cont) AR20130004976
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