IN THE CASE OF:	

		BOARD DATE:	  29 September 2015

		DOCKET NUMBER:  AR20150001243 


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 date of rank (DOR) to lieutenant colonel (LTC) in the Georgia Army National Guard (GAARNG) from 1 November 2014 to 1 May 2014. 

2.  The applicant states:

	a.  He was mobilized on 29 November 2013 (per Orders 291-006) and selected for mandatory promotion by the Fiscal Year 2014 (FY14) LTC Department of the Army (DA) promotion board that convened on 13 January 2014 and was released 1 May 2014, while on Title 10 mobilization.  He reached 7 years of time in grade (TIG) as a major (MAJ) on 7 February 2014.  He was demobilized on 3 November 2014, placed into an LTC position for which he is duty military occupational specialty qualified (DMOSQ) (Unit Identification Code W91YAA 040 01) and promoted effective 1 November 2014.  He should have been promoted effective 1 May 2014 in accordance with DA Promotion Policy Guidance regarding mobilized National Guard officers.

	b.  DA Personnel Policy Guidance (PPG), dated 28 June 2011, paragraph  13-10(b)(3)(d) states "a mobilized officer who is selected for promotion by a DA mandatory promotion board and is on an approved promotion list shall (if not promoted sooner or removed from the promotion list by the President or declination) be promoted without regard to the existence of a vacancy, on the date on which the officer completes the maximum years of service in grade as indicated on table 1."  The GAARNG did not consider this policy and promoted him as if he had not been mobilized with 7 years TIG when he was DA selected.
3.  The applicant provides:

* Email exchanged with the National Guard Bureau (NGB)
* An excel worksheet titled August 2014 FGAC (Field Grade Assignment Committee)
* NGB Special Orders (SO) Number 33 AR
* NGB SO Number 344
* Promotion memorandum
* DA Form 1559 (Inspector General Action Request)
* Mobilization and demobilization orders
* By-name selection list 

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 5 December 1997.  He completed the Ordnance Maintenance Management Officer Basic Course.  He served on active duty as a U.S. Army Reserve (USAR) officer from January 1998 to January 2002. He was promoted to captain in March 2003. 

2.  He transferred from the USAR to the GAARNG on 17 June 2003 and he again served on active duty as an ARNG officer from December 2004 to June 2006.  He was promoted to MAJ on 8 February 2007, and in April 2011, the NGB published orders extending him Federal Recognition for a branch transfer to Logistics (90A). 

3.  On 29 November 2013, he was ordered to active duty not to exceed 400 days and served in Afghanistan from 31 December 2013 to 6 September 2014 with the 2nd Battalion, 121st Infantry.  He was honorably released from active duty to the control of his State on 3 November 2014. 

4.  He was considered for promotion to LTC by the FY14 LTC DA promotion selection board that convened in January 2014 and was released in May 2014.  The promotion board selected him for promotion.

5.  On 1 November 2014, the NGB published SO Number 344 AR extending him Federal Recognition for promotion to LTC with an effective date and DOR of 
1 November 2014. 

6.  On 6 November 2014, the GAARNG published Orders Number 310-790 transferring him from the Plans Officer (O-4 position), 2nd Battalion, 121st Infantry, GAARNG, to the Chief of Georgia Garrison Training Center (GGTC) 
(O-5 position), GAARNG, Fort Stewart, GA, effective 5 November 2014. 
7.  On 9 March 2015, the GAARNG published Orders 068-816 amending Orders Number 310-790, dated 6 November 2014, to show the effective date as 1 November 2014. 

8.  He provides an excel worksheet titled "August 2014 FGAC" that shows his current assignment with the 2nd Battalion, 121st Infantry (Mobilized) and future assignment as Chief, GGTC, effective 1 February 2015, vice another officer who was retiring.

9.  On 14 April 2015, an advisory opinion was received from the NGB in the processing of this case.  An NGB official stated: 

	a.  The applicant requests a DOR to LTC of 1 May 2014.  The NGB recommends disapproval of his request and the GAARNG concurs with this recommendation.  The applicant believes he should have been promoted effective 1 May 2014 and not 1 November 2014 because he falls under the DA PPG, dated June 2011, paragraph 13-10b(3)(d) that states, "A mobilized officer who is selected for promotion by a DA mandatory promotion board and is on an approved promotion list shall (if not promoted sooner or removed from the promotion list by the President or declination) be promoted without regard to the existence of a vacancy, on the date on which the officer completes the maximum years in grade as indicated on table 1."

	b.  The timeline of events in this case are as follows:

* 29 November 2013, he received Order Number 291-006, dated 18 October 2013, placing him on active duty not to exceed 400 days
* 1 November 2014, he received Federal Recognition (Fed Rec) Special Order Number 344, dated 24 November 2014, promoting him to LTC
* 1 November 2014, he received amended Order Number 068-816, dated 9 March 2015, changing his assignment transfer date from 5 November 2015
* 3 November 2014, he received Order Number 253-0097 dated 9 September 2014, releasing him from active duty including his leave time
* 5 November 2014, he received Order Number 310-790 dated 6 November 2014, reassigning him to a vacant LTC slot

	c.  The recommendation for his DOR to remain 1 November 2014 is based on the facts below.

* Maximum TIG of 7 years was not reached prior to the start of his mobilization (29 November 2013 - Orders 291-006) nor before the FY14 DA board convened and adjourned (13-29 January 2014); he reached 7 years TIG on 07 February 2014
* He was recommended and approved for promotion on Presidential List (PL) 93-579, dated 16 April 2014, which was publically released on 
1 May 2014
* The Assistant Adjutant General approved his reassignment effective 
1 November 2014
* The State of Georgia holds its own field grade assignments committee (FGAC) led by the Assistant Adjutant General - Army and determines when and where to promote

	d.  This case recommendation was coordinated and reviewed with the NGB Federal Recognition Section on 9 and 11 March 2015 and the NGB DA Boards Section on 12 March 2015.  Additionally, the GAARNG provided input on a memorandum for record, dated 27 February 2015.  The GAARNG concurs with this recommendation.

10.  The applicant was provided a copy of this advisory opinion.  He responded on 10 May 2015 and stated: 

   a.  The section of the DA PPG (dated 28 June 2011) which would govern his mandatory promotion (paragraph 13-10b(3)(d)) does not mandate that the timeline of events occur in a specific order, only that all conditions are met.  As of 16 April 2014, he had met all conditions (DA selection, 7 years' TIG, mobilized under Title 10) required for mandatory promotion of ARNG officers under DA policy.  Paragraph 13-10b(3) states "ARNG officers DA selected for promotion by a DA Mandatory promotion board, but not promoted before being mobilized, or who were selected for promotion by a DA Mandatory promotion board while mobilized, will have the following options."  The option outlined in paragraph 
13-10b(3)(d) applies. 

	b.  This applicable section states the promotion shall occur without regard to a vacancy.  Assignment to an O-5 position via the FGAC within the GAARNG at the time of his DA selection was not required to execute the promotion under 
DA policy.  He is now changing his request that his DOR to LTC be amended to 16 April 2014 to comply with DA PPG and U.S. Code (USC) with full back pay and allowances.

11.  DA PPG for Overseas Contingency Operations, dated 1 July 2009, with periodic updates, is a publication that has been revised (last was on 28 June 2011) to update personnel guidance related to mobilized, employed, deployed, redeployed, and demobilized personnel in support of overseas contingency operations.  
	a.  Chapter 13, Personnel Management:  Discusses personnel procedures conducted throughout mobilization and deployment.  It addresses personnel functions and actions such as promotions, awards, evaluations, and personnel records.  Paragraph 13-10 pertains to promotion of commissioned officers. 

	b.  Paragraph 13-10(a)(1), TIG Requirement:  By law, all Reserve component (RC) officers, mobilized or non-mobilized, whose promotions are not voluntarily delayed, involuntarily delayed, or declined, must be promoted on the date on which they complete the maximum TIG:  5 years for first lieutenants and 7 years for captains and majors.  Mobilized officers promoted upon reaching their maximum TIG will be transferred immediately to the Individual Ready Reserve (IRR) upon demobilization.

	c.  Paragraph 13-10(a)(2)(a) Mobilized Officers and Officers on Active Duty for Operational Support (ADOS):  Officers mobilized under Title 10, USC, section 12302, and officers other than Army Reserve officers on ADOS tours (Title 10, USC, section 12301(d)) may be matched against a vacant higher-grade Selected Reserve position to be promoted.  Upon release from active duty/completion of the tour of active duty on which the officer is promoted, the officer will be assigned against that position within 180 days.  If the officer, upon completing his or her current tour of active duty, declines or is unwilling or unable to occupy the position against which the officer was matched or appointed, then the officer - whether a member of the USAR or ARNG - shall be transferred immediately to the IRR unless assigned to some higher grade RC position within 180 days after completing his/her current tour of active duty.

	d.  Paragraph 13-10(b)(1) states mobilized ARNG (M-Day and AGR) officers who are on an approved mandatory selection board promotion list may be promoted immediately when appointed in the State against a vacant position of the higher grade in a federally recognized unit in the National Guard.  All ARNG officers promoted under the provisions of this new policy must be assigned to that position against which they are matched or appointed within 180-days after demobilization or transfer to the IRR.  The promotion authority for ARNG officers and warrant officers ordered to active duty under the provisions of Title 10, USC, section 12302 or 12304 is the Chief, NGB.  Mobilized ARNG officers, regardless of the units to which they are assigned or mobilized, may be unit vacancy promoted against positions within their respective States provided they meet the qualifications outlined in National Guard Regulation (NGR) 600-100 (Commissioned Officers, Federal Recognition and Related Personnel Actions), chapter 8-7.  The position to which the officer will be assigned upon promotion must be a valid and vacant (no double-slotting) Modified Table of Organization or Equipment or Table of Distribution and Allowances position of the higher grade.  

	e.  Paragraph 13-10(b)(3) states ARNG officers DA selected for promotion by a DA Mandatory promotion board, but not promoted before being mobilized, or who were selected for promotion by a DA Mandatory promotion board while mobilized, will have the following options:

		(1)  Officers may be promoted immediately when appointed in the State against a position of the higher grade the officer will occupy upon demobilization. This policy applies only to DA mandatory promotion selectees; it does not apply to unit promotions or to officers selected for promotion to captain who do not possess a baccalaureate degree.  While this is authorized, the States are not required to promote individuals utilizing this procedure.  Guidance on the procedures to be utilized for promotion of officers was published in a memorandum, subject:  Promotion of Mobilized ARNG Officers who are Selected for Promotion by a DA Mandatory Promotion Board, dated 30 January 2004.

		(2)  Delay the promotion for up to three years for LTC and below.  Upon approaching maximum TIG date while still mobilized, the officer can request a delay of promotion in accordance with Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), Chapter 4, section IV.  This may be to the officer‘s advantage if the officer‘s maximum TIG date is late in the period of mobilization, affording the officer a longer period to find a suitable position in the selected reserve.  Those officers DA-selected for promotion to COL/O-6 should refer to the memorandum published on an annual basis.

		(3)  Decline the promotion.  At any time prior to or upon reaching maximum TIG date, the officer can choose to decline the promotion.  Upon doing so, the officer‘s name will be removed from the promotion list and the officer will be considered to have been non-selected for promotion. The provisions of Army Regulation 135-155, paragraph 4-28, apply.

		(4)  A mobilized officer who is selected for promotion by a DA mandatory promotion board and is on an approved promotion list shall (if not promoted sooner or removed from the promotion list by the President or declination) be promoted without regard to the existence of a vacancy, on the date on which the officer completes the maximum years of service in grade as indicated on table 1. The reference for this is section 14304(b), Title 10.

12.  Title 10, USC, 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 in which such Federal recognition in that grade is so extended.

13.  Title 10, USC, section 12203 provides that appointments of Reserve officers in the grade of lieutenant colonel and below shall be made by the President.  This authority has been delegated to the Secretary of Defense via executive order.  

DISCUSSION AND CONCLUSIONS:

1.  There are three issues raised by the applicant:  The effective date of promotion versus the DOR; back pay and allowances; and the requested DORs, initially 1 May 2014, and in response to the advisory opinion, 16 April 2014. 

2.  First, the effective date of promotion and DOR generally fall on the same date (at times they may not) but mean different things.  The DOR is used to determine promotion eligibility for the next higher grade.  The DOR, even if changed, has no impact on his pay.  The effective date drives pay and allowances.  The effective date is announced in the promotion orders.  

3.  Second, amending the effective date of promotion is not within the purview of this Board.  Promotion and Scrolling is a function of the Secretary of Defense.  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.  Any correction by the ABCMR must comport with other laws.  The Board may not ignore a requirement contained in, or 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.  Consequently, 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.

4.  Third, the issue of his DOR to 1 May 2014 and now 16 April 2014: 

	a.  The applicant was promoted to MAJ on 8 February 2007.  He was ordered to active duty not to exceed 400 days and he was mobilized to active duty from 29 November 2013 to 3 November 2014, during which time he served in Afghanistan.  He reached his maximum TIG of 7 years on 8 February 2014.  His maximum TIG of 7 years was not reached prior to the start of his mobilization (29 November 2013) or before the FY14 DA board convened/adjourned 
(13-29 January 2014).



	b.  During his mobilization, he was considered, recommended, and approved for promotion on PL 93-579, dated 16 April 2014.  This list was publically released on 1 May 2014.  The Assistant Adjutant General approved his reassignment with an effective date of 1 November 2014.  

	c.  Upon his release from active duty, in November 2014, he was issued orders reassigning him to a vacant LTC slot effective 5 November 2014 but his orders were amended in March 2015 to show the effective date of his reassignment to the vacant slot effective 1 November 2014.  The NGB issued him Federal Recognition orders promoting him to LTC with an effective date and DOR of 1 November 2014.  This is the correct effective DOR.

	d.  Because the applicant reached his maximum TIG on 8 February 2014 and he had been selected by a mandatory board while mobilized, and because the promotion list was approved on 1 May 2014, it appears this should be the DOR he should have been assigned regardless of whether he was occupying a higher graded position.  Therefore, notwithstanding the NGB advisory opinion, although his effective date of promotion cannot be changed by this Board, any question regarding the applicable policy and statute should be resolved in his favor by adjusting his DOR to LTC to 1 May 2014, the date the applicable promotion list was approved.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending Special Orders Number 344 AR, issued by the National Guard Bureau on 24 November 2014 to show his date of rank to LTC as 1 May 2014.

2.  The Board further determined that the evidence presented was 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 effective date of promotion to LTC with entitlement to back pay and allowances to 16 April 2014 or 1 May 2014
* changing his date of rank to 16 April 2014



      __________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)                                         AR20150001243



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ABCMR Record of Proceedings (cont)                                         AR20150001243



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