IN THE CASE OF: BOARD DATE: 9 June 2009 DOCKET NUMBER: AR20090001471 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 date of rank to captain be corrected to 15 April 2004. 2. The applicant states, in effect, that he was in a captain's position and fully qualified for promotion at the time the Reserve Component Army Promotion List (APL) for captain was announced. He states that his promotion to captain was delayed due to administrative error. He states his record was flagged while his unit was under investigation by the U.S. Army Criminal Investigation Division (CID). The flag was removed when the investigation was closed favorably and all persons were cleared of wrong doing. 3. The applicant provides copies of DA Forms 268 (Report to Suspend Favorable Personnel Action [FLAG]) dated 9 December 2004 and 19 July 2005; and a copy of a memorandum dated 18 July 2005 from the California Army National Guard (CAARNG) Staff Judge Advocate. 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. The applicant's military personnel record shows that he enlisted in the Regular Army on 22 September 1986 for a 3-year period of service. He completed basic and advanced individual training and was awarded military occupational specialty (MOS) 72G (Automatic Data Telecommunications Center Operator). 3. On 20 September 1989, the applicant was honorably discharged from the Regular Army upon his expiration of his initial term of service. Records show he was transferred to the 2373rd Signal Detachment, U.S. Army Information Systems Command (USAISC), Presidio, California, an Army Reserve unit. 4. On 15 September 1994, the applicant enlisted in the CAARNG for a 3-year period of service. 5. On 11 December 1998, the applicant was honorably discharged from the CAARNG so he could accept a commission. The applicant was issued a National Guard Bureau (NGB) Form 22E (Report of Separation and Record of Service) which shows the applicant was assigned to 670th Military Police Company (CAARNG), Sunnyvale, California 6. On 12 December 1998, the applicant was commissioned as a second lieutenant in the Army Reserve. He was transferred from the U.S. Army Fourth Region Accessions Detachment, Fort Lewis, Washington to the U.S. Army Reserve Control Group (Annual Training). 7. Headquarters, National Guard Bureau, Special Orders Number 165 AR, dated 22 September 2000, transferred the applicant from the U.S. Army Reserve to 670th Military Police Company (CAARNG) with an effective date of 13 December 1998. 8. Headquarters, CAARNG, Orders 52-153, dated 21 February 2001, promoted the applicant to the rank of first lieutenant effective 13 December 2000 with duty assignment as a platoon leader in the 670th Military Police Company. 9. Headquarters, National Guard Bureau, Special Orders Number 64 AR, dated 7 March 2001, granted the applicant Federal recognition as a first lieutenant in the Army National Guard. This order shows that the applicant was assigned to 670th Military Police Company (CAARNG). 10. On 21 March 2001, the National Guard Bureau published a memorandum which promoted the applicant to the rank of first lieutenant in the Army National Guard effective 13 December 2000 with his date of rank established as 13 December 2000. 11. On 9 October 2001, the applicant was mobilized in support of Operation Noble Eagle and entered active duty with the 870th Military Police Company (CAARNG). He was stationed at Fort Lewis, Washington. 12. On 23 July 2002, the applicant was released from active duty and issued a DD Form 214 for this period of active duty service that shows he completed 9 months and 23 days of active duty service during this mobilization period. 13. On 15 October 2002, Headquarters, CAARNG published Orders Number 288-152 releasing the applicant from 670th Military Police Company (CAARNG) and transferred him to Detachment 2, 870th Military Police Company (CAARNG) effective 17 September 2002. This order shows that the applicant was in a platoon leader's position within both units. 14. On 15 March 2003, the applicant was mobilized with the 870th Military Police Company in support of Operations Enduring Freedom and Iraqi Freedom. 15. On 20 May 2004, the applicant was released from active duty due to completion of required active service. Records show he served 1 year, 2 months, and 6 days with 10 months and 16 days of foreign service credit that included duty in Kuwait and Iraq. 16. In a memorandum dated 1 March 2005, U.S. Army Human Resources Command-St. Louis notified the applicant that he was selected for promotion by the Captain Reserve Component Army Promotion Board that adjourned on 9 November 2004. This memorandum shows that the applicant's promotion eligibility date was 12 December 2005. Further, this memorandum stated the effective date of promotion to captain could be 12 December 2005, or the date Federal recognition is extended to captain by the National Guard Bureau, or the date following the termination of Federal recognition in his current Reserve grade. 17. Joint Forces Headquarters, CAARNG, Orders Number 209-1036, dated 28 July 2005, relieved the applicant from his attachment to Headquarters and Headquarters Detachment, 49th Military Police Battalion with an effective date in "July." There was no day or year annotated on this order. 18. Joint Forces Headquarters, CAARNG, Orders Number 213-1026, dated 1 August 2005, amended Orders Number 209-1036, dated 28 July 2005, to show that the applicant's effective date of relief from attachment was 28 July 2005. 19. Joint Forces Headquarters, CAARNG, Orders Number 228-1064, dated 16 August 2005, released the applicant from assignment as a platoon leader in Detachment 2, 870th Military Police Company and transferred him to the position of Area Security Officer, in Headquarters and Headquarters Detachment, 49th Military Police Battalion effective 10 August 2005. 20. Joint Forces Headquarters, CAARNG, Orders Number 287-1035, dated 14 October 2005, promoted the applicant to captain effective 14 October 2005. 21. Headquarters, National Guard Bureau, Special Orders Number 304 AR, dated 21 October 2005, granted the applicant Federal recognition as a captain in the Army National Guard. 22. In the processing of this case an advisory opinion was obtained from the National Guard Bureau, Personnel Division which recommends that the applicant's promotion effective date and his date of rank to captain be adjusted from 21 October 2005 to 10 August 2005. This recommendation is based on the applicant's assignment to a captain's position in the CAARNG on 10 August 2005. Furthermore, it was recommended that the applicant receive all back pay and allowances. 23. There is no record to show that the applicant acknowledged receipt or concurred with this advisory opinion. 24. The applicant provided copies of DA Form 268 that shows he was flagged by an appropriate authority at Fort Lewis, Washington on 9 December 2004 for an adverse action (Article 15-6 Investigation) that was non-transferable. The CID investigated the alleged wrongdoing and determined that there was insufficient evidence to establish a case against the applicant. Therefore, the Staff Judge Advocate for the CAARNG recommended that the flagging action be removed in a written memorandum dated 18 July 2005. On 19 July 2005, the appropriate authority initiated DA Form 268 removing the flag stating the case was closed favorably. 25. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) states, in pertinent part, that the effective date of promotion for commissioned officers may not precede the date on which the promotion memorandum is issued and the promotion memorandum will not be issued before the date the promotion board results are approved and confirmed by the Senate (if required). In addition, the officer must be assigned or attached to a position in the higher grade or, if an Individual Ready Reserve or Individual Mobilization Augmentee officer selected by a mandatory promotion board, they must have completed the regulatory maximum years of service in their present grade before being promoted to the next higher grade. 26. National Guard Regulation 600-100 (Commissioned Officer-Federal Recognition and Related Personnel Actions) states, in pertinent part, that promotion of officers in the Army National Guard is a function of the state. An officer select by an Army Reserve promotion Board must be on the Reserve Active Status List and further provides that promotion will be accomplished only when the officer is assigned to an appropriate Modified Table of Organization and Equipment (MTOE) or Table of Distribution and Allowances (TDA) vacancy in a higher grade in the unit. Guidance provides that the effective date of promotion in the state to the next higher grade is the date the Chief, National Guard Bureau extends Federal recognition. The date of rank as a reserve of the Army for an Army National Guard officer in a traditional troop program unit, who is promoted as a result of selection by a mandatory Army selection board, is also the date the Chief, National Guard Bureau extends Federal recognition. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his current date of rank to captain is wrong and that it should be 15 April 2004. He contends, in effect, that due to his being flagged he was not promoted to captain in a timely manner. 2. The applicant was selected for promotion to captain by the Captain Reserve Component Army Promotion Board that adjourned on 9 November 2004. The promotion eligibility memorandum was dated 1 March 2005 and it shows that the applicant's mandatory promotion eligibility date to captain was 12 December 2005. 3. Guidance provides that the effective date of promotion for commissioned officers in the Army Reserve component of the U.S Army may not precede the date on which the promotion memorandum is issued and the promotion memorandum will not be issued before the date the promotion board results are approved. 4. Therefore, the applicant's request to change his captain's date of rank to 14 April 2004 is invalid for the promotion board that adjourned on 9 November 2004. Hence, the applicant could not be promoted before the date that the promotion board adjourned, the board was approved, and then the promotion memorandum was published. 5. In addition, the applicant was not assigned to a higher graded position on a MTOE document until 14 August 2005. At that time his Federal Recognition packet was forwarded. The Chief, National Guard Bureau granted the applicant Federal recognition in the grade of captain on 21 October 2005 which established his date of rank in the Army National Guard as 21 October 2005. A little over 2 months is considered normal for the processing of Federal Recognition packets. 6. In view of the foregoing, there is insufficient evidence to change the applicant's date of rank to captain in the CAARNG. Therefore, the applicant's promotion and date of rank to captain in the CAARNG is correctly published. ________ ________ ________ 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) AR20090001471 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090001471 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1