BOARD DATE: 18 November 2014
DOCKET NUMBER: AR20140004416
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) and promotion effective date (PED) to major (MAJ) from 12 December 2011 to 7 June 2011.
2. The applicant states he received his promotion letter to MAJ on 7 June 2011 and he was already working in a MAJ duty position. He was in the correct position prior to his promotion selection. He did not receive his MAJ promotion from the New York Army National Guard (NYARNG) until 12 December 2011, 6 months after he had been selected for promotion by the Department of the Army (DA). He believes he should have been promoted when he received his DA mandatory promotion, not 6 months after the approval.
3. The applicant provides:
* notification of selection for promotion letter
* National Guard Bureau (NGB) Special Orders Number 345 AR, dated 22 December 2011
CONSIDERATION OF EVIDENCE:
1. The applicant was appointed as a first lieutenant in a U.S. Army Reserve (USAR) troop unit program (TPU) on 16 December 2000. He was promoted to captain on 24 March 2005.
2. He transferred from the USAR TPU to the NYARNG on 1 March 2011. His DA Form 67-9 (Officer Evaluation Report) covering the period 14 March 2011 through 13 March 2012 shows his designated area of concentration (AOC) as 73A (Social Work) and his position AOC as 67D (Behavioral Science).
3. He provided a notification of selection for promotion letter, dated 7 June 2011, which states a DA Reserve Components (RC) mandatory selection board selected him for promotion to MAJ.
4. NGB Special Orders Number 345 AR, dated 22 December 2011, extended him Federal recognition for promotion to MAJ effective 12 December 2011.
5. In the processing of this case, a staff advisory opinion was obtained from the Chief, Personnel Policy Division, NGB which recommends approval of the applicant's request and noted the following:
a. The applicant was assigned to a USAR TPU when he was considered and selected by a DA RC promotion board. The results were published on 7 June 2011 after he transferred to the ARNG.
b. The applicant's promotion packet was submitted by his unit in November 2011 and to NGB by the NYARNG in December 2011. His promotion was Federally recognized on 12 December 2011.
c. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 4-3, states that when an officer is selected by a DA board and transfers from the USAR to the ARNG, "[t]he losing command will notify the gaining command of the selection board results so that the officer may be informed at the proper time" in order to promote the officer, if otherwise qualified.
d. Paragraph 4a of the notification of selection of promotion letter sent to the applicant, dated 7 June 2011, states, "Your effective date of promotion and date of rank will be the date you are in a duty position as required by AR [Army Regulation] 135-155 for your area of concentration
." In accordance with Army Regulation 135-155, paragraph 4-15s, the officer must be assigned to a position of the higher grade to be promoted upon release of the promotion board results.
e. The applicant was assigned to a MAJ position in the NYARNG effective 14 March 2011. His AOC was 73A and he was assigned to an AOC 67D duty position. DA Pamphlet 611-21 (Military Occupational Classification and Structure), paragraph 3-67, indicates an AOC 67D duty position is an immaterial position requiring an officer holding an AOC of 73. Therefore, the applicant met the duty position requirement for promotion when the DA RC promotion board results were published on 7 June 2011.
f. The applicant could not have been promoted prior to the 7 June 2011 release of the board results. Army Regulation 135-155, paragraph 4-21b(2), states, "Unit officers selected by a mandatory board will have a PED no earlier than the date the board is approved or the date of Senate confirmation (if required), provided they are assigned to a position in the higher grade."
g. The NYARNG concurs with this recommendation.
6. A copy of the advisory opinion was forwarded to the applicant for comment and/or rebuttal. He did not respond.
7. Title 10, U.S. Code, section 14308(f), states the effective date of a promotion of a Reserve commissioned officer in the Army who is extended Federal recognition in the next higher grade in the ARNG shall be the date on which such Federal recognition in that grade is so extended.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests correction of his DOR and PED to MAJ to 7 June 2011 with the applicable back pay. He contends he should have been promoted to MAJ when he received his DA mandatory promotion on 7 June 2011, not 6 months later on 12 December 2011.
2. The evidence of record shows he was assigned to a USAR TPU prior to his selection for promotion to MAJ by a DA RC promotion board. He then transferred to the NYARNG and he was assigned to a MAJ position effective 14 March 2011. He met the duty position requirement for promotion when the DA RC promotion board results were published on 7 June 2011.
3. Based on the foregoing evidence and per the NGB advisory opinion, it would be appropriate to adjust his DOR and PED to MAJ to 7 June 2011.
BOARD VOTE:
___X_____ __X______ ___X__ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adjusting his DOR and promotion effective date to MAJ to 7 June 2011.
__________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) AR20140004416
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ABCMR Record of Proceedings (cont) AR20140004416
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