IN THE CASE OF:	  

		BOARD DATE:	  30 September 2014

		DOCKET NUMBER:  AR20140000771 


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 that his promotion effective date to captain (CPT) be changed from 14 May 2010 to 15 January 2008.  He also requests, based upon the requested change, promotion to major (MAJ)/O4 with an effective date of 
29 May 2012. 

2.  The applicant states he was told the Alaska Army National Guard (AKARNG) didn't or wouldn't promote anyone without them having gone through a Department of the Army (DA) Promotion Board, that they did not want to promote him out of a job.  The long-term effect is that due to his being placed on the Temporary Disability Retired List (TDRL) (tied to Operation Iraqi Freedom deployment) he couldn’t make MAJ before being retired.  If he could get his wish it would be a promotion date of 1 January 2008.  Four years would make him eligible for promotion to MAJ in January 2012, with his last OER dated 
31 January 2012, and transferred to the Army Reserve for retirement effective 
29 May 2012.  Essentially he could have been promoted to MAJ on 29 May 2012 and retired as a field grade officer.  Since retirement is using the high-3, his retirement pay wouldn’t be affected, just his retirement rank.  Serving as a commissioned officer for 9 years and being retired as a CPT tends to make a person believe your career was a sham.

3.  He further states that in August 2007 the AKARNG G-1 informed him that she wanted to see an Officer Evaluation Report (OER) covering a period of assignment in a CPT position before she would consider promotion.  In January 2008 he was placed in a CPT position and a year later he received an OER for that position.  He was considered by a DA Board and was placed on the promotion list published mid-April 2010.  In mid-May 2010 he was promoted to CPT.  In May 2012, he was placed on the TDRL.  He is asking to have his promotion effective date to CPT backdated to the day he was seen as capable of performing the duties of a CPT (the date he was assigned to a CPT position).  He further states that had his promotion date been in January 2008, he would have been able to successfully argue to stay in the Army until receiving promotion to MAJ, thereby being better able to take care of his family after being retired.

4.  The applicant provides:

* National Guard Bureau (NGB) Special Orders Number 97 AR
* two OERs
* NGB Special Orders Number 280 AR
* AKARNG Element Joint Forces Headquarters Orders 115-001
* AKARNG Element Joint Forces Headquarters Orders 132-013
* NGB Special Orders Number 101 AR
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 29 May 2012
* self-authored statement

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.  On 19 March 2002, with prior service, the applicant enlisted in the ARNG.  On 6 September 2003 he was discharged from the ARNG for the purpose of accepting a commission.  On 7 September 2003, he accepted an appointment as a Reserve commissioned officer of the Army.

3.  Effective 7 September 2005, he was promoted to first lieutenant.

4.  AKARNG Element Joint Forces Headquarters Orders 25-010, dated 25 January 2008, assigned him to a Tactical Director/O3/14A (Air Defense) position in Headquarters and Headquarters Battery, 49th Space Battalion Ground Based Mid-Course Defense (GMD).  The orders show in the additional instructions that the applicant was not qualified for the position and he was in an Active Guard Reserve (AGR) status.

5.  He provides two OERs covering the period 1 January 2008 through 31 July 2009 showing he was assigned to an S-3 Plans Officer position during the evaluation periods.  These OERs indicate he was an outstanding officer and both his rater and senior rater recommended his immediate promotion.

6.  NGB Special Orders Number 280 AR, dated 19 November 2009, changed his branch from Field Artillery to Air Defense effective 13 June 2009.

7.  NGB Special Orders Number 101 AR, dated 14 May 2010, promoted him to CPT in the AKARNG effective 14 May 2010.

8.  He provides a DD Form 214 for the period ending 29 May 2012 showing he was retired due to temporary disability.

9.  AKARNG Element Joint Forces Headquarters Orders 153-011, dated 1 June 2012, separated him from the ARNG in the rank of CPT effective 29 May 2012 and transferred him to the Retired Reserve.

10.  On 19 March 2014, the Chief, Personnel Policy Division, NGB, provided an advisory opinion recommending disapproval of the applicant's request for a January 2008 promotion date to CPT and promotion to MAJ.  The advisory official stated:

	a.  The AKARNG did not promote the applicant through the unit vacancy promotion system; he was DA Board selected when he was in the primary zone of consideration and his date of rank corresponds with the date the DA Board results were published.  The maximum time in grade for a first lieutenant is 5 years.  The applicant was a first lieutenant for 4 years and 8 months.

	b.  The AKARNG did not violate any regulations in administering his promotion.  He was promoted within the requirements of Army Regulation 
135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) and National Guard Regulation 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions, 15 April 1994).

	c.  In accordance with Army Regulation 135-155, table 2-1, minimum time-in-grade for a CPT to be eligible for promotion to MAJ is 4 years.  Since his date of rank to CPT is 14 May 2010, he did not meet the minimum time-in-grade requirement to be considered for promotion to MAJ prior to being transferred to the Retired Reserve on 29 May 2012.

	d.  The AKARNG concurred with the recommendation.

11.  On 19 April 2014, the applicant responded to the advisory opinion.  He stated, in part, that the DA Board results were published on 16 April 2010.  The AKARNG historically delays officer promotions as much as possible for Soldiers in the GMD program.  He implied that the AKARNG has a verbal "do not promote policy" in effect for GMD officers.  He further implied that the AKARNG officer promotion policy is inequitable, based at least in part on preferential treatment.  He adds that the Alaska Governor had recently received approval to conduct a private investigation into the current Alaska National Guard command structure and all command policies, both written and verbal, over the last 10 years.

12.  He provides additional documents with his response.  These include:

	a.  AKARNG Element Joint Forces Headquarters Orders 125-10, dated 25 January 2008.

	b.  A copy of Title 10 U.S. Code, section 14304, eligibility for consideration for promotion: maximum years of service in grade.

	c.  An extract from Military Personnel Message Number 09-161, titled "Fiscal Year 2010, Reserve Component, CPT, ARNG of the United States, Army Reserve AGR and Army Reserve Non-AGR, Army Promotion List Competitive Categories Promotion Selection Boards."  The zone of consideration data was circled.

13.  Army Regulation 135-155 prescribes policy and procedures for selecting and promoting commissioned officers (other than commissioned warrant officers) of the ARNG of the United States and commissioned and warrant officers of the U.S. Army Reserve.  Table 2-1 of this regulation states the minimum time in grade as a first lieutenant for a position vacancy promotion to CPT is 2 years.

14.  National Guard Regulation 600-100 provides procedures for processing all applications for Federal Recognition.  

   a.  Paragraph 2-1 states 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 of the United States if they have not already accepted such appointment.
   
   b.  Promotion criteria will be based on efficiency, time in grade, time in commissioned service, demonstrated command and staff ability, military and civilian education, and potential for service in the next higher grade.  Promotion will not be used solely as a reward for past performance.  Except as provided in this chapter promotion will be accomplished only when an appropriate position vacancy in the grade exists in the unit.
   
   c.  A Federal Recognition Board (FRB) will review the records of commissioned officers recommended for promotion.  The FRB will consider documentary evidence submitted by the officer's commander together with appropriate official files, including medical records, performance evaluation reports, training certificates and academic reports, evidence of civilian education, and other pertinent documents that cite the officer's manner of performance.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions are noted.  However, the available evidence does not support his request for correction of his record to show he was promoted to captain in January 2008 and promotion to MAJ prior to his transfer to the Retired Reserve.

2.  Based on the available records, it appears the applicant was eligible to be considered for a position vacancy promotion to the grade of CPT in January 2008 based on his date of rank to first lieutenant and his assignment to a CPT position.  However, it appears he was not branch qualified for the position at the time of his initial assignment.  There is no evidence he was recommended for a position vacancy promotion by his commander or took all of the necessary steps to complete and submit a position vacancy promotion packet.

3.  He was considered by a mandatory DA Selection Board, recommended for promotion, and promoted to CPT effective 14 May 2010.

4.  There is no evidence that the AKARNG violated any regulations in administering his promotion.

5.  The minimum time in grade for a CPT to be eligible for promotion to MAJ is 4 years.  Absent a promotion effective date to CPT of January 2008, there is no basis for considering his request for promotion to MAJ.

6.  A review of the available records shows no error or injustice in the administration of the applicant's promotion to CPT.  Therefore, there is an 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 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)                                         AR20140000771



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ABCMR Record of Proceedings (cont)                                         AR20140000771



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