IN THE CASE OF: BOARD DATE: 31 May 2011 DOCKET NUMBER: AR20110004162 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 correction of his date of rank (DOR) to major (MAJ) from 29 September 2010 to 12 January 2009 with all back pay and allowances. 2. The applicant states: * there were many administrative errors made during the requests and processing of his promotions * his DA Forms 67-9 (Officer Evaluation Report (OER)) indicate it was his command's intention at all times that he receive an early (vacancy) promotion in both instances 3. The applicant provides copies of: * Army Board for Correction of Military Records (ABCMR) Record of Proceedings Docket Number AR20090007322, dated 5 January 2010 * his promotion orders to MAJ * National Guard Bureau (NGB) Federal recognition orders * two memoranda from the Virgin Islands National Guard (VING) Joint Force Headquarters * an NGB Form 89 (Proceedings of a Federal Recognition Examining Board) * his OER's * a memorandum of promotion to LTC by an SSB, dated 2 July 2009 * an NGB memorandum of promotion to MAJ * his DA Form 1059 (Service School Academic Evaluation Report) CONSIDERATION OF EVIDENCE: 1. Having prior enlisted service, the applicant was appointed as a second lieutenant in the Ohio Army National Guard (ARNG) on 11 January 2001. 2. On 8 May 2001, he was transferred to the Florida ARNG and entered active duty in the Active Guard Reserve (AGR) Program. He was promoted to first lieutenant (1LT) in the Florida ARNG on 6 May 2003. 3. On 20 February 2005, he was appointed as a 1LT in the VING and he was promoted to the rank of captain (CPT) in the VING on 2 September 2005. He continues to serve in the AGR Program in the VING. 4. ABCMR Record of Proceedings Docket Number AR20090007322, dated 5 January 2010, shows the ABCMR recommended that his records be corrected to show he was promoted to the rank of 1LT effective 12 January 2003 with a DOR of 12 January 2003 and that he was promoted to the rank of CPT effective 12 January 2005 with a DOR of 12 January 2005. 5. He submitted five OER's covering the period 21 February 2006 through 29 June 2010, which contain the following comments regarding his promotion potential: * promote now [two times] * do not fail to promote * he should be promoted ahead of his contemporaries [two times] 6. An NGB Form 89, dated 12 April 2010, shows he was recommended for Federal recognition as a MAJ. 7. On 14 April 2010, the VING issued Orders 104-500 showing he was promoted to MAJ with a DOR and effective date of 12 April 2010. 8. On 4 October 2010, NGB Special Orders Number 220 AR extended him Federal recognition for promotion to MAJ effective 29 September 2010. 9. An NGB memorandum, dated 4 October 2010, announced his promotion to MAJ in the Reserve of the Army for service in the ARNG of the United States. His DOR is shown as 29 September 2010. 10. He submitted a copy of his DA Form 1059, dated 23 November 2010, from the Academy of Health Sciences which shows he successfully completed the Army Medical Department Captains' Career Course. 11. He submitted two memoranda from the Virgin Islands ARNG Medical Command's Territorial Surgeon and Deputy Territorial Surgeon requesting that his DOR to MAJ be backdated to 12 January 2009 because he had been assigned to a MAJ/O-4 position since May 2001. 12. During the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB. The advisory official recommended disapproval. The advisory official stated that in accordance with NGB Regulation 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions), chapter 8, the applicant met the minimum time in grade (TIG) eligibility to MAJ on 12 January 2009 after completing 4 years of TIG. "NGB Regulation 600-100, chapter 8, states, in part, 'The promotion of officers in the ARNG is a function of the State.' There is no expectation that promotions are automatic upon achieving minimum promotion requirements. Although the [applicant] met the TIG requirement, his command was not obligated to promote him to the next higher grade immediately. As expressed by the State, promoting the [applicant] at this time was a decision made by the [applicant's] chain of command." 13. The advisory opinion continued that he was promoted by unit vacancy promotion on 12 April 2010. His Federal recognition packet was received in May 2010 by the ARNG Federal Recognition Section. The advisory official concluded by stating that in accordance with the Reserve Officer Personnel Management Act (ROPMA), "The effective date of promotion and DOR for an officer who is promoted under the position vacancy promotion system will be the date the Chief, NGB, extends Federal recognition, based on the approved scroll list from the Secretary of Defense." The promotion effective 12 January 2009 is not the date of appointment in the position or the date of the State Federal recognition board. Scroll lists take approximately 90 to 120 days to be approved by the Secretary of Defense. The State concurs with this recommendation. 14. On the same date, the advisory opinion was forwarded to him for acknowledgement and/or rebuttal. On 15 March 2011, he non-concurred and reiterated that due to the errors with his previous promotions and the absence of a Senior Army Advisor, his promotion was delayed even though he was in a MAJ position. He also stated he was unaware that his command did not agree with his early vacancy promotion. 15. National Guard Regulation 600-100, chapter 8, provides in: a. paragraph 8-2 that the effective date of promotion for an ARNG commissioned officer who is promoted in the State is the date the Chief, NGB, extends Federal recognition unless otherwise provided by law. An officer's DOR as a Reserve of the Army will be determined by his or her duty status, type of selection board which selected the officer, and delay status (if applicable), unless otherwise provided by law; and b. paragraph 8-6 provides that promotion will be accomplished only when the officer is assigned to an appropriate Modified Table of Organization and Equipment or Table of Distribution and Allowance vacancy in which he or she has been recommended for promotion until Federal recognition orders are published. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that the effective date and DOR for his promotion to MAJ/O-4 should be corrected to 12 January 2009. He adds he should receive all pay and allowances due as a result of the correction because he was eligible for promotion on 12 January 2009 and assigned to serve in a valid position since 2001, but he was not promoted until 29 September 2010. 2. Notwithstanding the supporting statements he provided, his command's decision was to not promote him. Although he met the TIG requirement, his command was not obligated to promote him to the next higher grade immediately. As expressed by the State, promoting him "at this time was a decision made by [his] chain of command." The State concurred with this recommendation. 3. ROPMA provides that the effective date of promotion and DOR for an officer who is promoted under the position vacancy promotion system will be the date the Chief, NGB, extends Federal recognition. 4. Records show that NGB special orders announced the extension of Federal recognition of the applicant's promotion to CPT in the ARNG effective 29 September 2010. Therefore, in view of all of the foregoing, the applicant is not entitled to correction of his records to show he was promoted to MAJ with an effective date and DOR prior to 29 September 2010. 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 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) AR20100012955 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110004162 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1