IN THE CASE OF: BOARD DATE: 18 November 2010 DOCKET NUMBER: AR20100000918 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 promotion to the rank of major (MAJ/O-4) with an effective date of 2 March 2007. 2. The applicant states that when he was placed in a Title 10 status during his first mobilization on 5 August 2003: a. he was selected for promotion to MAJ with an effective date of 4 April 2003 and he never requested a delay for this promotion; b. in accordance with Title 10, U.S. Code, section 14304(b), he should have been promoted to MAJ regardless of position availability; and c. he believes he should be promoted to MAJ with an effective date of rank (DOR) of 2 March 2007 based on his previous selection and taking his break in service into account. 3. The applicant provides the following: * U.S. Total Army Personnel Command memorandum, dated 7 August 2003 * mobilization Orders 212-451, dated 31 July 2003 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 4 August 2003 * National Guard Bureau (NGB) Form 23A (Army National Guard Current Annual 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. The applicant's military records show he was appointed as a Reserve commissioned officer in the rank of second lieutenant on 23 May 1992 and entered active duty. On 23 May 1994, he was promoted to first lieutenant and he was promoted to captain (CPT) on 1 June 1996. 3. On 1 April 2000, he was honorably discharged from active duty. The DD Form 214 issued to him at that time shows he completed 7 years, 10 months, and 9 days of creditable active service. 4. On 2 April 2000, the applicant was appointed a Reserve commissioned officer in the rank of CPT. He also executed his oaths of office and was granted temporary Federal recognition in the rank of CPT in the Vermont Army National Guard (ARNG). 5. Massachusetts ARNG Orders 212-451, dated 31 July 2003, ordered the applicant to active duty in support of Operation Enduring Freedom effective 5 August 2003. Accordingly, on 5 August 2003, the applicant reentered active duty. 6. On 7 August 2003, the Chief, Office of Reserve Promotions, Reserve Components, U.S. Total Army Personnel Command, St. Louis, Missouri [now known as U.S. Army Human Resources Command, Fort Knox, Kentucky], notified the applicant that he was considered and selected for promotion to MAJ with an effective date of 31 May 2003 (the date he reached his maximum years in grade (MYIG)). 7. On 4 August 2003, the applicant was honorably released from active duty to the control of his Massachusetts ARNG unit in the rank of CPT. The DD Form 214 issued at that time shows he completed a total of 8 years, 10 months, and 9 days creditable active military service. 8. On 13 April 2005, NGB issued Orders Number 103-2, which directed the applicant's honorable discharge from the ARNG effective 15 March 2005. The NGB Form 22 (Report of Separation and Record of Service) issued at that time shows the applicant held the rank of CPT. 9. On 17 December 2008, the applicant was reappointed as a CPT in the Pennsylvania ARNG and his record indicates he is currently serving on active duty in support of Operation Enduring Freedom. He was promoted to MAJ on 6 August 2010. 10. During the processing of this case an advisory opinion was obtained from the Chief, Personnel Division, NGB. This official cited the following references: a. Assistant Secretary of the Army for Manpower and Reserve Affairs (ASA M&RA) Policy Memorandum, dated 17 December 2003, subject: Promotion of Mobilized Reserve Component (RC) Officers on Reserve Status List, states that in accordance with Title 10 U.S. Code, section 14304(b) and section 14316(d), a mobilized RC officer who has been recommended for promotion to the grade of CPT through lieutenant colonel (LTC) by a mandatory promotion board and who is on an approved promotion list shall be promoted without regard to the existence of a vacancy or placement against a position of a higher grade under this policy memorandum on the date on which the officer completes the maximum years of service as specified in the Title 10, U.S. Code, Section 14304(a) unless the officer has voluntarily delayed or declined his or her promotion. b. Director, ARNG, Policy Memorandum, subject: Promotion of Mobilized ARNG Who are Selected for Promotion by a DA Mandatory Board, states, "mobilized officers who reached maximum time in grade (TIG) and have neither delayed nor declined their promotion will be promoted whether or not assigned against a position of the higher grade." c. Chief, Personnel Policy and Readiness Division, NGB, Policy Memorandum, dated 1 September 2004, subject: Clarification of Policy to Promote Mobilized Officers at Maximum TIG, states that in the event the State does not desire to promote the officer, the officer will sign a statement acknowledging that he is being promoted upon reaching the maximum TIG and that if the officer does not occupy a position at the higher grade within 6 months after deployment, the officer will be involuntary transferred to the Individual Ready Reserve (IRR). d. National Guard Regulation 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions), paragraph 8-1, states the promotion of officers in the ARNG is a function of the State. 11. The Chief, Personnel Division, NGB, further indicated that because the applicant was promoted to CPT on 1 June 1996, was selected for promotion to MAJ by a mandatory selection board on 4 April 2003, was mobilized to Afghanistan on 5 August 2003, was released from active duty on 4 August 2004, and resigned his commission on 15 March 2005 (7 months and 11 days after his redeployment), he met the promotion criteria stated under the ASA M&RA policy. He further recommended the applicant be promoted to MAJ effective 17 December 2003 (the date the ASA M&RA Policy Memorandum was released) and that he be provided all back pay and allowances accordingly from 17 December 2003 to 15 March 2005, the date of his resignation. 12. On 14 July 2010, the applicant provided his concurrence to the NGB advisory opinion. In addition, the applicant also requested that his 17 December 2008 reappointment in the ARNG be in the rank of MAJ with an effective DOR of 14 July 2007 to account for his break in service. 13. On 16 November 2010, a staff member of the Board contacted an NGB Personnel Division official to ascertain if the applicant should have been granted Federal recognition and reappointed in the rank of MAJ on 17 December 2008 instead of CPT. The NGB official indicated the applicant should have been reappointed in the rank of MAJ on 17 December 2008 and given a DOR adjustment to account for his prior 1 year and 2 months of TIG in the rank of MAJ by subtracting that time from his reappointment date. 14. On 17 December 2003, ASA M&RA established promotion policy for mobilized RC Officers for promotion to the grades of CPT through colonel. This policy applied to all RC commissioned officers (IRR and Selected Reserve) on the Reserve Active Status List. In accordance with Title 10, U.S. Code, section 14304(b) and section 14316(d), a mobilized RC officer who has been recommended for promotion to the grade of CPT through LTC by a mandatory promotion board and who is on approved promotion list shall be promoted without regard to the existence of a vacancy or placement against a position of a higher grade under this policy memorandum on the date on which the officer completes the MYIG as specified in Title 10, U.S. Code, section 14304(a), unless the officer has voluntarily delayed or declined promotion in accordance with Title 10, U.S. Code, section 143212. 15. Title 10, U.S. Code, section 14304, provides the legal authority for eligibility for consideration for promotion based on MYIG provisions of the law. Paragraph (a) states that officers shall be placed in the promotion zone and shall be considered for promotion to the next higher grade by a promotion board convened under section 14101(a) of this title far enough in advance of completing the MYIG so that if the officer is recommended for promotion, the promotion may be effective on or before the date on which the officer will complete those years of service. This provision of the law establishes the MYIG for CPT to MAJ as 7 years. 16. Paragraph (b) of Title 10, U.S. Code, section 14304, states, in effect, that an RC officer who is recommended for promotion to the next higher grade by a selection board the first time he or she is considered for promotion and who is placed on an approved promotion list shall be promoted without regard to the existence of a vacancy on the date on which the officer completes the MYIG specified in this law. DISCUSSION AND CONCLUSIONS: 1. The applicant's contends he should have been promoted to MAJ effective upon his 5 August 2003 mobilization in accordance with the existing policy in effect at that time. He also contends that he should have been reappointed in the ARNG in the rank of MAJ on 17 December 2008 and given a 2 March 2007 DOR based on his prior selection and to account for his break in service. 2. The current policy provides that a mobilized RC officer who has been recommended for promotion to the grades of CPT through LTC by a mandatory promotion board and who is on approved promotion list shall be promoted without regard to the existence of a vacancy or placement against a position of a higher grade on the date on which the officer completes the MYIG. Upon demobilization, the troop program unit officer must actively fill that position within 180 days. 3. The evidence of record confirms the applicant was mobilized in support of OEF on 5 August 2003 as evidenced by official orders contained in his official military personnel file. It also confirms he was selected for promotion to MAJ by the 2003 RC Selection Board with a promotion eligibility date of 31 May 2003, his MYIG, as evidenced by the U.S. Total Army Personnel Command memorandum, dated 7 August 2003, and the NGB Personnel Division advisory opinion. Therefore, the applicant met the necessary criteria for promotion to MAJ effective 31 May 2003, the date he completed his MYIG, and his record should be corrected to show he was promoted to MAJ on 31 May 2003 and he should be provided all back pay and allowances from 31 May 2003 through 15 March 2005, the date of his resignation. 4. The evidence of record also shows the applicant was reappointed in the Pennsylvania ARNG on 17 December 2008. Based on the 1 year, 9 months, and 14 days that he held the rank of MAJ from 31 May 2003 to 15 March 2005, the applicant's record should be corrected to show he was reappointed in the Pennsylvania ARNG in the rank of MAJ instead of CPT and he should be provided all back pay and allowances due as a result of this correction. 5. In addition, the applicant's MAJ DOR should also be readjusted by accounting for his time in grade in the rank of MAJ by subtracting that 1 year, 9 months, and 14 days from his 17 December 2008 reappointment date. Thus, the applicant's DOR should be corrected to reflect 13 March 2007. 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 records of the individual concerned be corrected by: a. showing he was promoted to MAJ effective and with a date of rank of 31 May 2003 and by providing him all back pay and allowances due as a result from 31 May 2003 through 17 March 2005; b. showing he was reappointed in the Pennsylvania ARNG in the rank of MAJ on 17 December 2008; and c. adjusting his MAJ DOR at the time of his reappointment in the Pennsylvania ARNG from 17 December 2008 to 13 March 2007 and by providing him all back pay and allowances due as a result of this correction. 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 adjusting his MAJ date of rank to 2 March 2007. _______ _ _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) AR20100000918 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont)