IN THE CASE OF:	

		BOARD DATE:	  8 April 2014

		DOCKET NUMBER:  AR20130016374 


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 adjustment of his promotion effective date to captain to 7 May 2009 or any date which the Board deems appropriate.

2.  The applicant states:

	a.  In the interest of justice and fairness, he requests a review of the facts surrounding his promotion to captain and a finding that equity demands adjustment of his date of rank (DOR) to 7 May 2009 or any date which the Board deems appropriate.

	b.  He believes the record clearly demonstrates that his promotion was unfairly delayed due to reasons outside of his control.  Every time an action was required on his part, he completed it in a timely manner.  Had a lieutenant colonel not misunderstood the Officer Management Plan, he would have been promoted upon minimum time in grade (TIG) on 7 May 2009.  Had his officer evaluation report (OER) been completed in a timely fashion, he would have been promoted after 24 March 2010.  Had his subsequent delinquent OER been completed in a timely fashion, he would have been promoted after 26 August 2010.

	c.  On 22 March 2010, he emailed his battalion commander, battalion executive officer, and battalion S-3 in reference to his promotion to captain.  At that time he had been eligible for a unit vacancy promotion since 7 May 2009.  That same day he was emailed by the battalion executive officer and informed that the battalion executive officer was not "dialed in" on his promotion status, but he was not aware of any reason the applicant would not be promoted and he advised him that he would look into the matter.

	d.  On 23 March 2010, he was contacted by the battalion commander who advised him that he misunderstood the Officer Management Plan and he understood that the battalion would not promote lieutenants until they reached maximum TIG.  He further explained that after speaking with the battalion executive officer, he discovered that he was working under an erroneous understanding and the applicant was supposed to have been promoted at minimum TIG under the management plan because of his prior service.  The battalion commander informed him that he would review his promotion status and get back to him, but that he would likely be promoted.

	e.  On 24 March 2010, he was emailed by the battalion S-3 requesting that he contact him.  When the applicant spoke with the battalion S-3, he was informed that he would be vacancy-promoted to the open assistant S-3 position.  He immediately spoke with the acting battalion S-1 in reference to his promotion packet.  At that time, the battalion S-1 had not yet been informed that the applicant was to be promoted, but he filled him in on what he knew at the time.

	f.  On 5 April 2010, the acting battalion S-1 emailed the battalion commander and requested confirmation as to whether he should transfer and push forward the applicant's promotion packet.  This confirmation was received on an unknown later date.

	g.  On 17 May 2010, a promotion packet was submitted for his promotion to captain, but it was returned to his battalion without action and he was informed he could not be promoted until his OER was completed (the senior rater needed to sign it).

	h.  In June 2010, he was deployed to Iraq.  His senior rater was involved in pre-mobilization training and did not sign the OER until August 2010.  His promotion packet was resubmitted on 26 August 2010.

	i.  In September 2010, he was notified he was scheduled to be considered by a Department of the Army (DA) mandatory promotion board.  After subsequent communication with the acting battalion S-1, he learned that the vacancy promotion packet had been returned without action because he was due a change-of-rater OER.  Because he was under consideration by a DA board at this point, he was informed that he could not be promoted based on the unit vacancy system.  The OER covering the period 1 March 2010 through 16 June 2010 was not completed by his rater until November 2010.  It was signed by his senior rater on 3 January 2011.  He received his OER on 31 January 2011 via email and he signed it on 4 February 2011.

	j.  On 3 March 2011, he was notified he was selected for promotion by the DA mandatory promotion board.  On 10 March 2011, the recommendation for promotion against the unit vacancy was submitted by his battalion S-1.  On 22 March 2011, he received State promotion orders.  On 24 March 2011, his name appeared on the DA promotion list.

3.  The applicant provides:

* email correspondence
* promotion packet, dated May 2010
* OER for the period 1 March 2009 through 28 February 2010
* DA mandatory promotion board notification
* OER for the period 1 March 2010 through 16 June 2010
* packet resubmitted on 26 August 2010
* memoranda of support from his battalion commander and battalion executive officer
* DA promotion notification memorandum

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the Regular Army and Army National Guard (ARNG), the applicant was appointed as a second lieutenant in the ARNG on 13 May 2005.  He was promoted to first lieutenant on 7 May 2007.

2.  He completed the UH-60M Aviator Qualification Course on 28 August 2008.

3.  He was ordered to active duty on 17 June 2010 in support of Operation Iraqi Freedom.  He arrived in Kuwait/Iraq on 6 August 2010.

4.  Military Personnel Message Number 10-132 states mandatory Department of the Army promotion selection boards will convene on or about 2 November 2010 to consider Reserve of the Army first lieutenants for promotion to captain.

5.  In March 2011, the DA Reserve Components Fiscal Year 2011 Captain Army Promotion List Selection Board selected him for promotion.

6.  Michigan Army National Guard (MIARNG) Orders 081-101, dated 22 March 2011, show he was promoted to captain effective 22 March 2011.  These orders state the effective date of promotion in the Reserve of the Army and corresponding DOR will be the date the Chief, National Guard Bureau (NGB), extends Federal recognition of the State promotion.

7.  NGB Special Orders Number 67 AR, dated 24 March 2011, show he was extended Federal recognition for promotion to captain effective 22 March 2011.

8.  He departed Kuwait/Iraq on 8 June 2011 and he was released from active duty on 31 July 2011.

9.  The applicant provided a memorandum for record from his acting battalion 
S-1, dated 5 July 2013, who stated:

	a.  In March 2010, the applicant inquired about his potential for promotion.  After a few months of deliberation, he (the S-1) was informed by the battalion commander to generate the applicant's packet for a unit vacancy promotion.  In May 2010, a completed promotion packet was submitted.  Unfortunately, the applicant continued to wait until August 2010 at which time his OER (for the period 1 March 2009 through 28 February 2010) was finally signed by his senior rater.

	b.  The applicant's packet was again submitted; however, he was informed that now he needed to submit the applicant's corrected OER (for the period 1 March 2010 through 16 June 2010), which held up his promotion once again.  The applicant's corrected OER was not closed out until January 2011, 6 months after the due date.  By this time, the applicant was well within the zone of consideration for a DA mandatory promotion selection and could no longer be promoted against a unit vacancy.

	c.  The applicant was finally promoted to captain on 22 March 2011, 2 years after his eligibility period.

	d.  He believes the applicant completed all of the necessary requirements for promotion in 2010; however, through no fault of the applicant, his promotion was unfairly delayed.  He recommended adjustment of the applicant's DOR in accordance with the time frame of his original promotion packet submission, 17 May 2010.

10.  The applicant also provided a memorandum for record from his battalion executive officer, dated 30 August 2013, who stated:

	a.  He fully supports a change to the applicant's DOR.  The unnecessary delay in his promotion was the result of numerous administrative oversights and individual failures from the previous chain of command.  During that time, he was the battalion executive officer and aware of the undue lengthy delay in processing the applicant's OER and promotion packet.  None of these failures were the fault of the applicant.  The applicant completed all actions required by him to facilitate his OER and promotion packet and met all promotion criteria.

	b.  The applicant was eligible for promotion on 7 May 2009.  The battalion's aviation Officer Management Plan had placed him in a vacant captain/O-3 position and projected him for a unit vacancy promotion at minimum TIG.  At that time, there were a number of vacant captain/O-3 positions throughout the battalion and he was ahead of his peers in that selection process.

	c.  The applicant has recently been selected to serve in a vacant major/O-4 position as the battalion S-3 during their upcoming mobilization in support of Operation Enduring Freedom based on his demonstrated performance and abilities.  It is his intent to promote the applicant to major at the earliest opportunity.  He feels that correction of his DOR is both justified and necessary to support his assignment during this deployment.

	d.  Numerous oversights and failures resulted in the applicant's promotion being delayed nearly 2 years.  The net result has been that both the applicant and the unit have been negatively impacted.  The applicant has had his career progression unnecessarily slowed and the unit has been unable to fill vacancies for major due to having no promotable captains.

	e.  He requests a favorable finding to correct this unfortunate situation.

11.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Personnel Policy Division, NGB, dated 27 November 2013.  The advisory official recommends disapproval of the applicant's request for the following reasons:

	a.  The applicant requested the promotion effective date of 7 May 2009 because that is the date he reached 2 years of TIG as a first lieutenant.

	b.  The applicant was deployed from 17 June 2010 to 31 July 2011.  His unit attempted to promote him as allowed by the policy for unit vacancy promotion of mobilized ARNG officers.  The policy allows mobilized officers to be promoted by unit vacancy against other available positions within their States.  The applicant met all the criteria to be promotion eligible at that time.  The unit vacancy promotion packet, dated 17 May 2010, shows the duty position at the higher grade as the assistant S-3 officer.  The applicant could not be assigned to this duty position because he was deployed with a different unit.

	c.  The applicant's unit first submitted a unit vacancy promotion packet on 17 May 2010.  The packet was delayed due to an incomplete OER.  The MIARNG will not allow unit vacancy promotion packets to be boarded if the officer has a delinquent OER.  This policy exists because the OER's are the only way to judge performance and potential in rendering a recommendation for promotion since officers do not appear before the board in person.  The through date of the OER was 28 February 2010, but the senior rater did not sign it until 11 August 2010.  Once the OER was signed, the applicant could not be promoted because he was in the zone of consideration for the DA mandatory promotion board.

	d.  The applicant was selected for promotion by a DA mandatory promotion board and was subsequently promoted on 22 March 2011.

	e.  After reviewing this case, the MIARNG recommended a promotion date of 7 October 2010.  This date is based on when another MIARNG Soldier whose promotion packet was boarded by the State in June 2010 and then sent to NGB for Federal recognition.  Federal recognition was extended to the other Soldier effective 7 October 2010.  The MIARNG stated this would be the same timeline for which the applicant's promotion packet should have been processed.  However, the MIARNG did not process the applicant's promotion packet at the time because their policy is not to allow unit vacancy promotions with a delinquent OER.

	f.  The Federally-recognized effective date of promotion cannot be modified because such action would effectively amend the Secretary of Defense's action which is beyond the authority of the Army Board for Correction of Military Records.  The NGB Federal Recognition Section confirmed this limitation.

	g.  The MIARNG does not support the original requested date of 7 May 2009 and non-concurs with the recommendation of disapproval; the MIARNG supports backdating the applicant's promotion to 7 October 2010.

12.  A copy of the advisory opinion was forwarded to the applicant for comment and/or rebuttal.  He did not respond.

13.  National Guard Regulation 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions) prescribes policies and procedures governing, in part, the appointment, Federal recognition, and separation of commissioned officers of the ARNG.


	a.  Paragraph 2-1 states that commissioned officers of the ARNG are appointed by the several States under Article 1, section 8, of the U.S. Constitution.  These appointments may be Federally recognized by the Chief, NGB, under such regulations as the Secretary of the Army may prescribe and under the provisions of this regulation.  Officers who are Federally recognized in a particular grade and branch shall be tendered an appointment in the same grade as Reserve commissioned officers of the Army with assignment to the ARNG.

	b.  Paragraph 8-1 states the promotion of officers in the ARNG is a function of the State.

	c.  Paragraph 8-2 states the effective date of promotion for an ARNG commissioned officer who is promoted in the State is the date the Chief, NGB, extends Federal Recognition unless otherwise provided by law.  An officer's DOR as a Reserve of the Army will be determined by his or her duty status, type of selection board which selected the officer, and delay status (if applicable), unless otherwise provided by law.

	d.  Paragraph 8-3 states a commissioned officer who has been promoted by the State and extended Federal recognition in the higher grade will be promoted to the higher grade in the Reserve of the Army with assignment to the ARNG of the United States.

	e.  Paragraph 8-7 states that States will not promote a commissioned officer who is being considered by a DA Selection Board from the time the board convenes until the recommendations are announced.

14.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), Table 2-1, states the minimum TIG as a first lieutenant for promotion to captain is 2 years and the maximum TIG is 5 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests adjustment of his promotion effective date to captain to 7 May 2009 because that is the date he reached 2 years of TIG as a first lieutenant.

2.  The evidence shows he was appointed as a first lieutenant in the ARNG on 7 May 2007.

3.  In March 2011, the DA Reserve Components Fiscal Year 2011 Captain Army Promotion List Selection Board selected him for promotion.  He was granted Federal recognition for promotion to captain effective 22 March 2011.

4.  He was promoted to captain within the TIG criteria.

5.  It is noted the MIARNG recommends the applicant’s effective promotion date to captain be adjusted to 7 October 2010 based on another MIARNG Soldier’s whose promotion packet was boarded by the State in June 2010 and then sent to NGB for Federal recognition.  The MIARNG states this should be the same timeline which the applicant’s promotion packet should have been processed.  However, the governing regulation states the effective date of promotion for an ARNG commissioned officer who is promoted in the State is the date the Chief, NGB, extends Federal Recognition unless otherwise provided by law.  

6.  Records indicate the State tried to promote the applicant against a unit vacancy prior to his selection by the DA mandatory promotion board.  However, once he was selected for promotion and Federally recognized for his DA mandatory promotion, he was no longer eligible for a unit vacancy promotion.

7.  In view of the foregoing, there is insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20130016374



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ABCMR Record of Proceedings (cont)                                         AR20130016374



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