BOARD DATE:   20 November 2014

		DOCKET NUMBER:  AR20140002710 


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 an adjustment to his date of rank as a captain (CPT) to 17 August 2006 and consideration of his records by a special selection board (SSB) for promotion to major (MAJ).

2.  The applicant states that:

	a.  During his 2005 deployment to Iraq his troop commander was relieved for cause and the applicant was placed in that captain (CPT)/O-3 position.  He became eligible for a unit vacancy promotion on 17 August 2006.  He remained in the troop commander position until June 2009.  He was not promoted to CPT until 29 November 2007. 

	b.  Through no fault of his own his unit vacancy promotion packet was not processed a timely manner by his chain of command.  

3.  The applicant provides:

* orders showing he was transferred to the troop commander position effective 8 July 2006
* DA Forms 67-9 (Officer Evaluation Report (OER)) for the period 
20 October 2005 through 28 June 2009
* DA Form 1059 (Service School Academic Report) (AER) showing he completed the Armor Officer Basic Course
* DA Form 1059 showing he completed the Armor CPT's Career Course 
* DA Form 873 (Certificate of Clearance and/or Security Determination), dated 2 May 2002

CONSIDERATION OF EVIDENCE:

1.  Following prior enlisted service, the applicant was appointed as a second lieutenant (2LT)/O-1 in the Pennsylvania Army National Guard (PAARNG) effective 17 August 2002.

2.  He was promoted to first lieutenant (1LT)/O-2 effective 17 August 2004.

3.  He completed the Armor Officer Basic Course on 13 November 2003 and the Armor Captain's Career Courser on 29 November 2006.

4.  He provides orders showing he was released from the position of Executive Officer, Headquarters and Headquarters Troop, 1st Squadron, 104th Cavalry and transferred to the position of Commander, Troop B, 1st Squadron, 104th Cavalry effective 8 July 2006. 

5.  Orders show he was promoted to CPT with effective date and DOR of 
29 November 2007.  

6.  In the processing of this case, an advisory opinion, dated 5 July 2014, was obtained from the Chief, Personnel Policy Division, National Guard Bureau (NGB).  The advisory official recommended granting part of the applicant's request by adjusting his DOR to 19 August 2007.  That date is recommended because it is the earliest signature date in which packets from the States were in processed to the Federal Recognition (FEDREC) section and placed on scroll Presidential List (PL) 23-07.

	a.  The official stated:

		(1)  The applicant was assigned to a CPT position on 8 July 2006.

		(2)  On 17 August 2006, he was eligible to submit a Time in Grade (TIG) Unit Vacancy Promotion packet for promotion to CPT.  In accordance with Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) TIG requirements in table 2-1 states, "…minimum years in lower grade is two years from 1LT to CPT." 

		(3)  on 17 July 2007, the applicant was recommended for promotion by the Commander of the PAARNG.

		(4)  On 25 July 2007, FEDREC Board proceedings were approved and signed.  Also, the initial effective promotion date by the PAARNG State order Number 212-1016 was dated and effective.

		(5)  On 26 July 2007, PL 23-07 was submitted to the Secretary of Defense for approval and signed on 19 August 2007.

		(6)  On 29 November 2007, Secretary of Defense approved and signed PL 
32-07.

		(7)  On 30 November 2007, Special Order Number 300 AR was published for promotion to CPT with an effective date of 29 November 2007.

	b.  A review of the applicant's FEDREC processing history was conducted.  The applicant's promotion to CPT was a Unit Vacancy Promotion (UVP).  The Reserve Officer Promotion Act states, "The effective date of promotion and date of rank of an officer promoted under the vacancy system is the date the Chief, National Guard Bureau extends Federal recognition.  It is not the date of assignment into the position, nor is it the date of Federal recognition board action if either of those dates is an earlier date.  Therefore, there is no entitlement to pay and allowances prior to the date the Chief, National Guard Bureau extends Federal recognition."

	c.  The applicant's FEDREC processing history shows his unit recommended him for a UVP.  National Guard Regulation (NGR) 600-100, paragraph 8-1, states, "The promotion of officers in the ARNG is a function of the State."  CPT S------ states the unit delayed processing his UVP packet; however, once he became eligible, his promotion packet was successfully boarded at the State level.  NGB FEDREC Section received the packet, it was processed, and the applicant was federally recognized as a CPT effective 29 November 2007.  Taking into account the approximate 90 days needed for a UVP packet to go through the necessary approval channels, the applicant's current promotion effective date falls within or near this time line; therefore, the delay in the processing of his UVP packet has no bearing on the approval of the board.

	d.  The applicant's request to have his DOR adjusted to 17 August 2006, when he first became eligible, is not recommended.  Consideration has been given to the earliest date available due to processing which was no fault of the applicant.  The DOR should be adjusted from 29 November 2007 to 19 August 2007 to include back pay and allowances.  The date of 19 August 2007 was given because it is the earliest signature date in which packets from the State were in processed to the FEDREC section and placed on scroll 23-07.  

	e.  The PAARNG concurs with this recommendation.

	f.  The applicant has transferred from the PAARNG to the New York ARNG and coordination between the States is required.

7.  Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve Component officers.  The regulation specifies unit position vacancy promotion system is designed to promote officers to fill vacancies that cannot be filled by local commanders with qualified officers of the authorized grade.  Occasionally, assignments cannot be made from local resources (officers assigned to units and other local non-unit officers on the Reserve Active Status List).  In this event, the commander of the unit experiencing the position vacancy will send to the appropriate area commander the names of all USAR unit officers in the next lower grade who meet promotion consideration/eligibility requirements.  Promotion to fill authorized valid position vacancies may be filled through promotion of the best-qualified and geographically available officer to the grades of captain through colonel.  All officers in the next lower grade must have met the minimum time in grade for promotion to the next higher grade and be geographically available (non-mobilized) to serve in the position for which considered.

8.  Army Regulation 135-155 also specifies that the unit commander will initiate position vacancy promotion procedures and forward a memorandum listing all unit officers eligible for promotion consideration.  The memorandum will include the following information:  rank of position, branch, area of concentration, position title, unit, unit identification code, location of unit, table of organization and equipment/table of distribution and allowances number, paragraph/line number, and date of position vacancy.  An officer is not eligible for consideration if he or she was not approved for the position per Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers).

9.  Army Regulation 135-155 states for promotion from 1LT to CPT, the minimum number of years in the lower grade is 2 years and the maximum number of years is 5 years. 

10.  Army Regulation 135-155 also specifies that SSBs will convene and consider commissioned officers who were erroneously not considered and reconsider commissioned officers who were considered but not selected by mandatory promotion boards.  Paragraph 2-10d(6), states "Special selection boards will not consider officers for below the zone promotion."

11.  Military Personnel (MILPER) Message Number 11-338, dated 28 October 2011, announced the policy, criteria, and zones of consideration for the FY12 MAJ APL ARNG, Army Reserve Active Guard Reserve (AR-AGR) and AR Non- AGR) Competitive Category Promotion Selection Board.  The MILPER Message stated:  Mandatory DA promotion selection boards would convene on or about
30 January 2012, to consider Reserve of the Army promotion list (APL) CPT's for promotion to MAJ.  Zones of consideration consist of all USAR and ARNG APL CPT's with a DOR: 

* Above the Zone (USAR & ARNG):  31 August 2005  and earlier
* Promotion Zone (USAR & ARNG):  1 September 2005 through 31 August 2006
* Below the Zone (USAR Only):  1 September 2006 through 31 August 2007

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DOR for promotion to CPT should be adjusted from 29 November 2007 to 17 August 2006, when he first became eligible for promotion to CPT.  His promotion packet was delayed due to no fault of his own. 

2.  An NGB advisory official recommend the applicant's DOR to CPT be adjusted to 19 August 2007 to include back pay and allowances because it is the earliest signature date in which packets from the State were in processed to the FEDREC section and placed on scroll 23-07.  

3.  The ABCMR may only correct Army records.  The Board has no authority to correct records created by the other services or the Department of Defense.

4.  Any correction by the ABCMR must comport with other laws.  The Board may not ignore a requirement contained in or an outcome dictated by another statute. Typically, the ABCMR achieves this by changing an operative fact in the record, thereby making a correction in compliance with that statute.  Where officer personnel issues are involved that require approval by the Secretary of Defense, the Board's hands are often tied.

5.  Consequently, based on the authorities cited above, any correction to the applicant's effective date of promotion would effectively amend the Secretary of Defense's action and goes beyond the authority of this Board.

6.  However, when a valid appointment has been accomplished, the Board may take action to grant an officer an earlier DOR if warranted by the facts in the case.  Based upon this guidance, and as a matter of equity, it would be appropriate to grant the applicant relief by amending his DOR to CPT to 
19 August 2007.  His effective date of promotion to CPT remains 29 November 2007.

7.  Although this adjustment of his DOR will place him in the zone of consideration "Below the Zone" for the Mandatory DA promotion selection board that convened on or about 30 January 2012, the governing regulation states that SSBs will not consider officers for below the zone promotion.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  ___X_____  ___X__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army and State ARNG records of the individual concerned be corrected by amending the applicant's DOR to CPT to read 19 August 2007.  
 
2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing his DOR to 17 August 2006, and consideration of his of his records by a special selection board for promotion to MAJ.



      __________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)                                         AR20120017871



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ABCMR Record of Proceedings (cont)                                         AR20140002710



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