IN THE CASE OF: BOARD DATE: 24 January 2013 DOCKET NUMBER: AR20120004378 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 (DOR) to the grade of lieutenant colonel (LTC)/O-5 be adjusted from 10 February 2012 to 1 July 2011. 2. He states he was selected for promotion to the grade of LTC/O-5 by the Arkansas Army National Guard (ARARNG) Officer Selection Board which convened 22 -24 September 2009. He was further selected for promotion by the Fiscal Year 2011 (FY11) National Guard Career Field Review Board on 22 June 2011, and had been serving in a valid LTC/O-5 billet since 1 July 2011. 3. He contends his promotion was delayed due to a Department of the Army board that was not required for his promotion to the grade of LTC/O-5. 4. The applicant provides: * a memorandum, dated 24 September 2009 * permanent change of station (PCS) orders * a copy of the FY11 Title 10 Active Guard Reserve (AGR) Second Release Officer Promotion Recommendations list * Orders 044-812, dated 13 February 2012 * a memorandum, dated 21 February 2012 * Special Orders Number 55 AR, dated 21 February 2012 CONSIDERATION OF EVIDENCE: 1. After a period of prior enlisted service, the applicant was appointed as a second lieutenant on 27 September 1994. He entered active duty and completed the Engineer Officer Basic Course in 1995. He continued to serve on active duty through a series of assignments and was promoted to the grade of captain (CPT)/O-3. 2. On 10 December 2003, he was honorably released from active duty and transferred to the Army National Guard of the United States (ARNGUS) in the grade of CPT/O-3 the following day. He was promoted to the grade of Major (MAJ)/O-4 on 8 November 2005. 3. His record shows he entered the AGR program on 1 May 2006 in the grade of MAJ/O-4 and is currently serving on active duty. 4. The applicant provided a memorandum, dated 24 September 2009, subject: Commissioned Officer Promotion Consideration Board (MAJ to LTC). This document shows the board reviewed his military record and determined he was fully qualified, and recommended him for promotion. It stated his commander had the opportunity to recommend him for promotion into a position vacancy. 5. He also provided a copy of Orders 38-15, dated 7 February 2011, that show he was to proceed on PCS to the ARNG Professional Education Center (PEC), Camp Robinson, AR, with a reporting date of 1 July 2011. These orders also contain the following information: * he was on active duty in an AGR status in the grade of MAJ/O-4 for the period 1 June 2011 through 31 May 2014 * the applicant was assigned to Unit Identification Code (UIC) W39LAA * he was assigned for the purpose of serving as Chief in paragraph 052 and line 01; the grade for this position is not shown * a temporary additional MAJ position to Joint Forces Headquarters Arkansas was authorized for the duration of the tour plus six months 6. He provided an FY11, Title 10, U.S. Code, AGR Second Release Officer Promotion Recommendations list, dated 22 June 2011, which includes the applicant's name and shows he was recommended for promotion to LTC/O-5. This list also contains the statement: Each Soldier recommended for promotion MUST meet the established criteria for their State/Territory Federal recognition Boards to include all regulations, policies, and procedures governing promotions. 7. His record contains a memorandum, subject: Recommendation for Promotion of MAJ (applicant's name), dated 10 February 2012, which contains the following: * under the provisions of chapter 8, National Guard Regulation 600-100 (Commissioned Officers-Federal Recognition and Related Personnel Actions), recommend the applicant be promoted in the ARNG * in the grade of LTC/O-5, UIC W39LAA, paragraph 052, line 01, Chief, Operations and Training * the officer has demonstrated the required fitness for the responsibilities and duties of the position, grade and branch for which recommended * the following periods of service are creditable for promotion to the higher grade: 1 July 2011 to present 8. Orders 044-812, dated 13 February 2012, which the applicant provided show he was promoted to the grade of LTC/O-5 effective 10 February 2012 in duty assignment: Chief, Operations and Training, paragraph 052, line 01, UIC W39LAA. Additional instructions show the effective date of promotion in the ARNGUS will be the date permanent Federal recognition orders are published. 9. He further provided a memorandum, subject: Promotion as a Reserve Commissioned Officer of the Army, dated 21 February 2012, that was prepared by the National Guard Bureau (NGB). This document shows he was promoted to the grade of LTC/O-5 effective 10 February 2012 as a Title 10, ARNGUS officer. 10. Special Orders Number 55 AR, dated 21 February 2012, show he was extended Federal recognition under Title 10, U.S. Code on 10 February 2012 for the purpose of promotion to the grade of LTC/O-5. 11. During the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB, which states: a. The applicant's DOR should be adjusted to on or about 1 September 2011 with all relevant back pay and allowances based on this adjustment. He was serving in an LTC/O-5 slot when NGB FY11 Title 10 AGR Second Release Officer Promotion Recommendation list was published on 22 June 2011; therefore, he was eligible for a Unit Vacancy Promotion (UVP). b. At the time of the announcement previously mentioned, the applicant was in consideration for promotion by the Department of the Army (DA) Mandatory Army Promotion List (APL) LTC Board which was scheduled to meet on 2 September 2011. c. NGB Policy Memorandum Number 10-068, subject: Submission of Applications for the Federal Recognition of ARNG Officers in a Higher Grade by way of UVP, paragraph 6 states, "For Soldiers in the zone of consideration for a Mandatory DA Promotion Selection Board, no application may be submitted for federal recognition of that officer's promotion based on the results of a Federal Recognition Board within 90 days of the date that the Mandatory DA Promotion Selection Board is scheduled to convene. d. As a result of the NGB policy memorandum, the ARARNG did not process the applicant's request for UVP since he was clearly within the suggested 90-day window of the DA Board convening. e. The applicant had been serving in an LTC/O-5 position since 2009; therefore, promoting him to the rank commensurate with the position he held based on being named to the promotion list seems to be in the best interest of the ARNG. Being DA select is not a requirement for promotion while serving in the NGB Title 10 AGR Program. f. Considering the normal processing of the Federal Recognition process, it is a reasonable assumption that the applicant would have been promoted on or about 1 September 2011 if allowed to be processed for a UVP as first intended. 12. The applicant was provided a copy of the advisory opinion for comment and he stated, in summary, "His promotion was delayed from the time he was notified for promotion eligibility beginning 22 June 11 until 10 February 2012 when the DA Board released their results on 10 February 2012. He feels that based on Army regulation and the inconsistency, he should have been afforded an opportunity to pull his promotion packet in order to receive an earlier DOR. He also believes he should not be penalized. He is seeking a 1 September 2011 DOR as well as the pay and entitlements associated with the 6-month difference in promotion dates. 13. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy for selecting and promoting commissioned officers of both the ARNGUS and the U.S. Army Reserve (USAR). It also covers promotion eligibility and qualification requirements, board schedules and procedures, and procedures on processing selection board recommendations. a. Mandatory selection boards will be convened each year to consider USAR and ARNG officers in an active status for promotion to captain through colonel. Commissioned officers and warrant officers serving in an AGR status may be promoted to or extended Federal recognition in a higher grade provided the duty assignment/attachment of the officer requires a higher grade than that currently held by the officer. The effective date of promotion of AGR officers will be as shown in paragraph 4-21. b. Paragraph 4-21 states the effective date of promotion may not precede the date of the promotion memorandum. An officer is promoted after selection if all qualifications for promotion are met. In no case will the DOR or effective date of promotion be earlier than the date the board is approved or, if required, the date of Senate confirmation. c. Subparagraph d provides that AGR officers selected by a mandatory board will be promoted provided they are assigned/attached to a position in the higher grade. The DOR will be the date the officer attained maximum time in grade or the date on which assigned/attached to a position in the higher grade, whichever is earlier. d. Table 2-1 shows that for promotion to the grade of LTC/O-5, the minimum years in lower grade (i.e., MAJ/O-4) is 4 years and the maximum years in lower grade is normally 7 years, subject to the needs of the Army. 14. National Guard Regulation 600-100 provides procedures for processing applications for Federal recognition. Chapter 8 provides guidance on promotion for other than general officers and states, in part, that the promotion of officers in the ARNG is a function of the State. a. Paragraph 8-2 states the DOR for an AGR commissioned officer, who is promoted as a result of a selection by a mandatory selection board, is the date the Chief, NGB extends Federal recognition, unless the officer was delayed solely due to the strength in grade (controlled grade) limitations of Title 10, U.S. Code, section 12011. b. The Chief, NGB will extend Federal recognition in the higher grade to an ARNG commissioned officer using NGB Form 0122 series orders. Federal recognition in the higher grade may not be extended to a Title 10 AGR commissioned officer prior to the date the President approves the promotion nomination in the Reserve of the Army. c. Paragraph 8-6 describes promotion criteria. It states promotion will be accomplished only when the officer is assigned to an appropriate vacancy in the higher grade in the unit. The officer must remain in the same vacancy in which he or she has been recommended for promotion until Federal recognition orders are published. An AGR controlled grade authorization must be available prior to promotion of an AGR officer to any grade above captain. DISCUSSION AND CONCLUSIONS: 1. The applicant was promoted to LTC/O-5 by the ARARNG on 10 February 2012 and extended Federal recognition by the Chief, NGB as a result of his promotion on the same day. However, the evidence shows he was considered and recommended for promotion to LTC by the 2009 Commissioned Officer Promotion Consideration Board (MAJ to LTC) which convened 22 to 24 September 2009. 2. At the time, he was also in consideration for promotion by the DA Mandatory APL LTC Board which was scheduled to meet on 2 September 2011. NGB policy states for Soldiers in the zone of consideration for a Mandatory DA Promotion Selection Board, no application may be submitted for federal recognition based on the results of a Federal Recognition Board within 90 days of the date that the Mandatory DA Promotion Selection Board is scheduled to convene. 3. As a result, the ARARNG did not process the applicant's request for UVP since he was clearly within the suggested 90-day window of the DA Board convening. However, being DA select is not a requirement for promotion while serving in the NGB Title 10 AGR Program. 4. The NGB advisory opinion states the applicant had been serving in an LTC/O-5 position since 2009; therefore, promoting him to the rank commensurate with the position he held based on being named to the promotion list seems to be in the best interest of the ARNG. It is a reasonable to conclude he would have been promoted on or about 1 September 2011 if allowed to be processed for a UVP as first intended. As a result of this correction, he should be paid all due back pay and allowances. 5. In view of the foregoing, the applicant’s records should be corrected as recommended below. 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 State Army National Guard and Department of the Army records of the individual concerned be corrected by: a. voiding the applicant's Federal recognition and orders promoting him to LTC/O-5, effective 10 February 2012, and declare them to be of no force or effect; and b. showing he was extended Federal recognition in the ARNG and promoted to LTC/O-5, with a promotion effective date and DOR of 1 September 2011, with payment of all back pay and allowances due as a result of this adjustment. 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 DOR to 1 July 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) AR20120004378 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120004378 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1