IN THE CASE OF: BOARD DATE: 5 November 2013 DOCKET NUMBER: AR20130008410 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 a promotion to lieutenant colonel (LTC)/O-5 effective 10 June 2012. 2. The applicant states: a. on 10 June 2012 he was on Title 10 status serving in Afghanistan as a member of the 1964th Contingency Contracting Team. As of that date, he had 7 years time in grade (TIG), he was serving in an O-5 position, and he was on the 2011 Department of the Army (DA) promotion list. b. according to the DA Personnel Policy Guidance (PPG) for Overseas Contingency Operations 13-10, “paragraph 2(b),” and Title 10, U.S. Code 14304(b), 14316(b), and 14316(d), he should have been promoted on that date. c. he did not learn of this law until February 2013. d. as he is no longer on Title 10 orders and the rules are different on Title 32, he believes this to be his only recourse to effect his promotion. 3. The applicant provides: * Active duty orders * Promotion documents * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Deployment orders * DA Board results CONSIDERATION OF EVIDENCE: 1. Having prior enlisted service in the Army National Guard (ARNG), the applicant was appointed as a second lieutenant in the Arkansas ARNG (ARARNG) on 11 July 1994. On 4 June 2004, he was ordered to full-time National Guard duty in an Active Guard Reserve (AGR) status. He was promoted to major on 10 June 2005. 2. He was selected for promotion by the DA 2011 LTC Army Promotion Board that convened in September 2011. 3. He was ordered to active duty on 2 January 2012 in support of Operation Enduring Freedom. He served in Afghanistan from 19 January 2012 to 17 December 2012. On 20 December 2012, he was released from active duty. 4. In the processing of this case, on 3 May 2013, a staff advisory opinion was obtained from the Chief, Personnel Policy Division, National Guard Bureau (NGB). The advisory official recommends disapproval of the applicant's request and points out: a. the applicant was selected for promotion by a DA board and placed on the promotion list in 2011. The applicant believes he should be promoted to LTC as of 10 June 2012 based on maximum TIG; his date of rank for major is 10 June 2005. He was an AGR Soldier at the time and is still in an AGR status. b. the basis of the applicant's request for promotion is Title 10, U.S. Code, section 14304, that states promotable officers will be promoted once they reach their maximum TIG. The maximum TIG is 7 years for promotion from major to LTC. However, the law also states that an automatic promotion based on TIG is subject to the limitations of Title 10, U.S. Code, section 12011, that adds the restriction that the number of officers per rank cannot exceed the number of allocations calculated by troop strength. This calculation determines the number of AGR slots, by rank, that a State is allocated. c. in accordance with Title 10, U.S. Code, section 12011 and 12012, the ARNG is allowed a limited number of AGR Soldiers to serve in the controlled grades of E-8, E-9, O-4 (major), O-5, and O-6 (colonel). Thus, as applicable to this inquiry, promotions to LTC have been restricted due to the limited quotas of O-5 controlled grades allocated to Arkansas based upon a formula used by the NGB to distribute the Congressionally limited grades. Arkansas is allocated 18 O-5 controlled grades and is fully executing the allocations. d. if promoted, the applicant would have had to be released from the AGR program, in accordance with the DA PPG for Overseas Contingency Operations, paragraph 13-10a(1), because there are no LTC slots available for an AGR officer in the ARARNG. e. he elected to remain in an AGR status as a major, according to a memorandum from the Office of The Adjutant General of the ARARNG, dated 23 April 2013. f. the State of Arkansas concurs with this recommendation 5. The advisory official provided a copy of the memorandum, dated 23 April 2013, from the Office of the Adjutant General of the Arkansas ARNG that states: a. the applicant was selected for promotion to LTC by the State of Arkansas officer selection board in September 2011. When he was selected by the 2011 state board and placed on the state promotion list, his sequence number was 11-4. He was ranked number 4 that year by the 2011 board. That same promotion list still had AGR officers remaining from the 2009 and 2010 promotion boards. In all, there were 8 AGR officers ahead of the applicant on the standing state promotion list waiting for controlled grades. b. if the applicant had been promoted in theater, it would have prompted his removal from the AGR program upon deployment. The applicant still has three other AGR officers ahead of him waiting for controlled grades c. ARNG-HRH Policy Memorandum 11-066, paragraph 3(d) mandates that "States, Territories, and the District of Columbia cannot over-execute their authorized AGR strength or their authorized controlled grades at any time without prior approval of the ARNG Personnel Programs, Manpower and Resources Division (ARNG-HRH)." Furthermore, the policy states that "States and Territories are required to manage their AGR force without exceeding their allocated number of controlled grades." d. per National Guard Regulation 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions), paragraph 8-17, "Officers serving on AGR tours, Title 10 or Title 32, who are selected for promotion by the DA Mandatory Board, but cannot be promoted because of grade authorizations or because they are not in a position calling for the higher grade are not required to decline promotion. The promotion of these officers is delayed and they remain on the promotion list until they are: (1) Removed from the promotion list in accordance with Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officer other than General Officers), chapter 3; (2) Promoted to the higher grade following grade authorization availability or reassignment to an AGR position calling for the higher grade; or (3) Promoted to the higher grade following release from the AGR Program." e. on 17 December 2003, the Assistant Secretary of the Army (ASA), Manpower and Reserve Affairs (M&RA)) modified the Army's existing policy for promoting Reserve Component (RC) officers to the ranks of captain through colonel in the Selected Reserve (SELRES) (includes both the ARNG and USAR) and the Individual Ready Reserve (IRR). The revised RC Promotion Policy impacts TPU (Troop Program Unit), M-Day (ARNG), AGR, IMA (Individual Mobilization Augmentee) and IRR officers involuntarily mobilized to support current contingency operations under provisions of Title 10, U.S. Code, sections 12301(a), 12302, and 12304, and are on an approved mandatory selection board promotion list. f. the PPG for Overseas Contingency Operations, paragraph 13-10(a)(2)(a) states "Officers mobilized under the provisions of Title 10, U.S. Code, section 12302 and officers other than Army Reserve officers on ADOS (active duty operational support) tours under the provisions of Title 10, U.S. Code, section 12301(d)) may be matched against a vacant higher grade SELRES position to be promoted. Upon REFRAD (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." g. additionally, the PPG, paragraph 13-10(5), states that "the AGR Program has assignment and controlled grade restrictions," and that "states will not be authorized additional controlled grades solely for the purpose of reassessing into the AGR Program, Soldiers who were promoted while mobilized." h. in this case, the applicant's promotion in theater under the 17 December 2003 ASA M&RA memorandum and paragraph 13-10(s)(2)(a) of the PPG would force him to be unable to occupy the position against which the officer was appointed, because of the unavailability of O-5 controlled grades to be allocated to him once he returned to a Title 32 status within the State of Arkansas, and as such, would have resulted in his immediate transfer to the IRR under the PPG guidance. The applicant was advised of this fact while in theater and returned back to the Title 32 AGR Program as an O-4. i. when he was selected by the State board and placed on the 2011 State promotion list, his sequence number was 11-4. In other words, he was ranked number four that year by the 2011 board. That same promotion list still had AGR officers remaining from the 2010 and 2009 promotion boards. In all, there were 8 AGR officers ahead of the applicant on the standing State promotion list waiting for controlled grades. If he had been promoted in theater it would have prompted his removal from the AGR Program upon redeployment. Currently, he still has three AGR officers ahead of him waiting for controlled grades. 6. A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal. He responded with a 14-page rebuttal. In summary, he stated: a. the PPG issued by NGB and applicable laws mandate that an RC officer on active duty shall be promoted if the officer is mobilized under Title 10 and has been selected for promotion by a mandatory selection board and has reached his maximum time in service as prescribed by law. b. on 10 June 2012 he met all criteria and was not promoted. One exception and one limitation to this mandatory promotions exists, neither of which apply in his case. The one exception is the declination of promotion by the officer which does not apply because he did not decline a promotion. The limitation is that promotion is subject to statutory limitation on the number of ARNG officers on active duty in the grade to which the officer was selected. c. NGB submitted a "disapproval" recommendation citing several policy and/or procedures which are not fully explained and therefore can be misleading. The specific section referenced does not apply to an AGR Soldier who is on AGR status. This section applies to all RC mobilized officers on Title 10 who have been recommended for promotion by a mandatory promotion board and have reached the maximum number of years. This was his situation on 10 June 2012. Nowhere in this section does it delineate between AGR and traditional M-day or TPU Soldiers. This specifically states the officer "shall" be promoted without regard to the existence of a vacancy or placement against a position of higher grade. d. the limitation cited is an accurate limitation to this mandatory promotion. NGB argues that Arkansas is "fully executed" and cannot promote him without violating Title 10, U.S. Code, section 12011. NGB allows all States to "borrow" controlled grades against pending losses. Therefore, Arkansas will promote against a pending retirement or termination and is usually over-executed. Exceptions are regularly made to allow States to be under or over on 1 October of each fiscal year. e. Arkansas promoted five AGR individuals to O-5 positions during his Title 10 deployment. This means that at the time Arkansas was denying his "mandatory" promotion, stating they were over allocated on controlled grades, they were borrowing controlled grades against pending retirements and removals and promoting other individuals who were not in the "mandatory promotion" circumstances. f. the final point made by the NGB memorandum is that "if promoted" he would have to be released from the AGR program because there are no slots available for AGR officers in the ARARNG. Again, this section is incorrectly referenced. Nowhere does it state that the possible removal of the Soldier from the AGR program is an exception to the "shall promote" clause in Title 10, U.S. Code, section 14304. But more importantly this is not an accurate statement. The referenced paragraph has no citation. The reference in law to this section is Title 10, U.S. Code, section 14316(d). g. he goes on to refute numerous assertions made by the Deputy, Chief of Staff of Personnel and the NGB. h. Title 10, U.S. Code, section 14316 provides that by law he should have been promoted on 10 June 2012. The one exception (declination by the officer) does not apply as he did not decline promotion. He simply quit pushing for the promotion once he was provided with an implied threat of being promoted and then removed from the AGR program. i. the one limitation to this law likewise does not apply. If the limitation cited applied, no M-day or AGR personnel could ever be promoted while on mobilized status if the State from which they were deployed was fully executed on AGR resources. j. he believes he has shown how States (and Arkansas in particular) are almost always over-executed on AGR resources and in most cases never under executed. The ARARNG borrows these resources against future losses and thus it is never "under" the allocated number. Therefore, the statement that Arkansas is "fully executed" and therefore cannot promote is always true. Yet, they do promote and they do not wait until they are under executed to do so. There are methods by which all States proved for full execution at all times and the key date to be "at" and not "over" on execution is 1 October of each year. Even at that there are methods by which states are allowed to cross fiscal years with over execution at these ranks. k. the key is that Arkansas either did not know at the time that they had to promote him or they ignored the fact and promoted others against projected AGR retirements and removals. l. the State, had they been aware of the law and been honest to its execution, would have provided him with a resource against one of the 5 projected losses that were promoted against in the 2012 calendar year and delayed one of the promotions until the following fiscal year. m. it is misleading to state that they could not promote him because of vacancy or AGR resource issues. It is further misleading to lead the Army Board for Correction of Military Records (ABCMR) to the belief that Arkansas always promotes in sequence, and that it simply is not his turn. They have and do promote out of sequence. Furthermore, board sequence numbers are not an exception or limitation to the applicable law. It is not true that by promoting him they would have to place him in the IRR. The applicable references apply to individuals promoted under a TIG clause, but not against a vacancy in their State for the higher grade. It does not apply to AGR resources. An AGR resource is not equal to a vacancy. If it were then an AGR could not be placed into an O-5 position without a controlled grade authorization and he would have been promoted prior to his deployment and DA board on a position vacancy, as he was in an O-5 "vacancy" before and during the deployment. n. he provides email traffic to disprove the assertion that the States promote in sequence and can only promote when they are below the "maximum" number of O-5/LTC controlled grades within the State. 7. National Guard Regulation 600-100, paragraph 8-6c, states promotion will be accomplished only when the officer is assigned to an appropriate Modified Table of Organization Equipment or Table of Distribution and Allowances vacancy in which he or she has been recommended for promotion until Federal Recognition orders are published. Paragraph 8-6d of this regulation states an AGR controlled grade authorization (Title 10, U.S. Code, section 12011) must be available prior to promotion of an AGR officer to any grade above captain. 8. Army Regulation 135-155, Table 2-1 states the minimum time in grade as a major for promotion to LTC is 4 years and the maximum time in grade is 7 years. 9. The PPG, paragraph 13-10a(2)(a) (Commissioned Officer Promotions, General), states officers mobilized under Title 10, U.S. Code, section 12302 may be matched against a vacant higher-graded position to be promoted. Upon release from active duty, the officer will be assigned against that position within 180 days. If the officer is...unable to occupy the position against which the officer was matched...then the officer - whether a member of the U.S. Army Reserve (USAR) or ARNG shall be transferred immediately to the IRR... 10. The PPG, paragraph 13-10a(2)(b), states in accordance with Title 10, U.S. Code sections 14304(B), 14316(b), and 14316(d).all Reserve Component officers who have been recommended for promotion to the grades of captain through LTC by a mandatory promotion board, and who are 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 on the date on which the officer completes the maximum years of service... 11. The PPG, paragraph 13-10(a)(5), states AGR managers are responsible for briefing AGR Soldiers on the impact that promotions received while mobilized could have upon the Soldiers’ re-accession into the AGR program. The AGR program has assignment and controlled grade restrictions. While mobilized, AGR Soldiers will not be promoted overgrade in the mobilized position. States will not be authorized additional controlled grades solely for the purpose of reassessing into the AGR program Soldiers who were promoted while mobilized.. 12. The PPG, paragraph 13-10(b) (ARNG Commissioned Officers), subparagraph 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 n a federally recognized unit in the ARNG. All ARNG officers promoted under the provisions of this policy must be assigned to that position against which they are matched within 180 days after demobilization or transfer to the IRR. 13. The PPG, 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 while mobilized may (a) be promoted immediately when appointed in the state against a position, of the higher grade, the office will occupy upon demobilization. While this is authorized the states are not required to promote individuals utilizing this procedure; (b) delay the promotion; or (c) decline the promotion. 14. The PPG, 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 be promoted without regard to the existence of a vacancy on the date on which the officer completes the maximum hears of service in grade. This paragraph further states that the reference for this is Title 10, U.S. Code, section 14304(b). 15. Title 10, U.S. Code, section 14304(b) states an officer holding [the permanent grade of major] who is recommended for promotion…shall…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. The preceding sentence is subject to the limitations of section 12011 of this title. 16. Title 10, U.S. Code, section 12011 pertains to authorized strengths: reserve officers on active duty or on full-time National Guard duty for administration of the reserves of the National Guard. DISCUSSION AND CONCLUSIONS: 1. The applicant's contentions were carefully considered. However, there appears to be no error or injustice in the way the applicant’s promotion has been treated: 2. It is acknowledged that PPG, paragraph 13-10(b)(3)(d) states an ARNG mobilized officer who is selected for promotion by a DA mandatory promotion board and is 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 maximum hears of service in grade. This paragraph further states that the reference for this is Title 10, U.S. Code, section 14304(b). 3. Title 10, U.S. Code, section 14304(b), also states that an officer holding the permanent grade of major who is recommended for promotion shall 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. However, this section also states that the preceding sentence is subject to the limitations of section 12011 of this title. 4. Title 10, U.S. Code, section 12011 pertains to authorized strengths: reserve officers on active duty or on full-time National Guard duty for administration of the reserves of the National Guard. 5. Thus, it appears that for an AGR officer the governing provision of the PPG is paragraph 13-10(a)(5), which states AGR managers are responsible for briefing AGR Soldiers on the impact that promotions received while mobilized could have upon the Soldiers’ re-accession into the AGR program. The AGR program has assignment and controlled grade restrictions. While mobilized, AGR Soldiers will not be promoted overgrade in the mobilized position. States will not be authorized additional controlled grades solely for the purpose of reassessing into the AGR program Soldiers who were promoted while mobilized.. 6. The governing statute and regulation state an AGR controlled grade authorization must be available prior to promotion of an AGR officer to any grade above captain. NGB and the state have indicated that there are no available controlled grade authorizations for LTC slots in Arkansas at this time. 7. The applicant has provided insufficient evidence to show he has not been treated equitably, and in accordance with the law, concerning his promotion. It also appears that he voluntarily elected to remain in the ARNG AGR rather than transfer to the IRR to accept his promotion. BOARD VOTE: ________ ________ ________ 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) AR20130008410 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130008410 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1