RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 04 OCTOBER 2005 DOCKET NUMBER: AR20050001541 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Mr. Carl W. S. Chun Director Mr. Jessie B. Strickland Analyst The following members, a quorum, were present: Mr. Mark Manning Chairperson Mr. Larry Bergquist Member Ms. Carmen Duncan Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that the effective date of his pay and allowances to the pay grade of O-5 be adjusted from 6 January 2005 to 29 December 2004. 2. The applicant states that because of an administrative error (wrong font was used) in preparing National Guard Bureau (NGB) promotion list P25-04 (along with lists 22, 23, 24 and 26) was returned to the NGB. This resulted in the unjust delay of the effective date of his promotion. Promotion List P27-04 was signed on 29 December 2004 and the effective date of his promotion should be adjusted to that date to correct this injustice. 3. The applicant provides a copy of his promotion orders, his assignment orders, his 20-year letter, a copy of a report of separation (DD Form 214), a copy of an officer evaluation report (OER), electronic mail (e-mail) traffic between officials at the NGB and officials at the office Army G-1 and a 2005 Army National Guard (ARNG) Federal Recognition Update. CONSIDERATION OF EVIDENCE: 1. The applicant was promoted to the rank of major in the Connecticut Army National Guard (CTARNG) on 5 October 1999 and on 22 March 2004, he received his Notification of Eligibility for Retired Pay at Age 60 (20-year letter). 2. On 14 May 2004, while serving on active duty as an Active Guard Reserve (AGR) Adjutants General Corps major assigned to the United States Army National Guard Readiness Center, Personnel Readiness and Deployments Branch, orders were published by the NGB reassigning him to a position as Chief, Personnel Readiness and Deployments Branch. 3. On 13 August 2004, orders were published by the CTARNG announcing the applicant’s promotion to the rank of Lieutenant Colonel (LTC) effective 12 August 2004. The orders also specified that the effective date of his promotion in the Army National Guard of the United States (ARNGUS) would be the date Federal Recognition orders were published. 4. On 16 September 2004, the NGB published orders announcing the applicant’s promotion eligibility date (PED) as being 16 September 2004. 5. On 6 January 2005, orders were published by the NGB promoting him to the rank of LTC (O-5) effective 6 January 2005, with a date of rank (DOR) of 16 September 2004. His orders published by the CTARNG were also changed to reflect an effective date of 6 January 2005. This promotion was based on a position vacancy and essentially was a secondary zone promotion which placed the applicant approximately 11 months ahead of his peers. 6. In the processing of this case a staff advisory opinion was obtained from the NGB, Chief, Personnel Division, which provides that on 28 September 2004, the President of the United States signed an executive order effective 1 October 2004, delegating signature authority for promotions to O-5 and below to the Secretary of Defense (SecDef). This change in signature authority required subsequent changes in scrolls and memoranda being submitted for approval. Presidential List 25-04, on which the applicant’s name appeared was one of the lists that had been forwarded to the Office of the Secretary of Defense (OSD) while changes were being implemented. Presidential Lists 22-04 through 26-04 had to be returned to OSD to have corrections made to their memoranda and scrolls. Presidential Lists 27-04 through 29-04, which were compiled at the NGB after notification of the Executive Order, were prepared according to the new requirements. These lists moved ahead of the lists that had not yet been formatted to meet the new requirements. The delay was due to an administrative change requiring that all promotion lists be formatted in accordance with the SecDef’s request. Officials further stated that the applicant was promoted based on a position vacancy in the secondary zone ahead of his peers and contends that if the Board grants the applicant’s request, it must also adjust all other officers on the list that were affected. That office recommended that his request be denied. 7. The advisory opinion was provided to the applicant for comment and to date, no response has been received by the staff of the Board. 8. The Reserve Officer Personnel Management Act (ROPMA), a public law enacted by Congress on 5 October 1994, prescribed policies and procedures to consolidate and modernize the laws governing the management of Reserve component officers. ROPMA was implemented on 1 October 1996, and it established that the MTIG for a major is 7 years, and that an officer selected for promotion to major the first time he/she is considered will be promoted on or before the date that he/she completes the MTIG. 9. ROPMA further specifies that an AGR officer must be serving in a position requiring the higher grade or assigned to the Individual Ready Reserve or a Individual Mobilization Augmentee position. Promotion cannot be effective prior to approval of respective boards by the President. 10. Title 10, United States Code, section 14308(c)(2) states that “Except as specifically authorized by law, a reserve officer is not entitled to additional pay or allowances if the effective date of the officer’s promotion is adjusted to reflect a date earlier than the actual date of the officer’s promotion.” DISCUSSION AND CONCLUSIONS: 1. While it is unfortunate that the processing of the promotion board results were administratively delayed through no fault of the applicant, the 7 day delay that was caused by a change in the approval authority from the President to the SecDef does not appear to be an unreasonable delay under the circumstances. 2. The applicant was promoted to the rank of LTC based on a position vacancy and it appears that it placed him ahead of his peers for promotion consideration. Accordingly, it does not appear that the administrative delay unnecessarily disadvantaged the applicant since his promotion was not effective until such time as the appropriate authority approved the list. 3. Notwithstanding the delay, the effective date of promotion shall remain as 6 January 2005, the date the board was approved. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___MM__ ___LB___ ___CD __ 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. _____Mark Manning_______ CHAIRPERSON INDEX CASE ID AR20050001541 SUFFIX RECON DATE BOARDED 20051004 TYPE OF DISCHARGE N/A ARNGUS AGR SOLDIER DATE OF DISCHARGE N/A ARNGUS AGR SOLDIER DISCHARGE AUTHORITY N/A ARNGUS AGR SOLDIER DISCHARGE REASON N/A ARNGUS AGR SOLDIER BOARD DECISION (DENY) REVIEW AUTHORITY AR 15-185 ISSUES 1.131.0400 314/prom eff date 2. 3. 4. 5. 6.