IN THE CASE OF: BOARD DATE: 9 August 2012 DOCKET NUMBER: AR20110013779 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 lieutenant colonel (LTC) from 24 May 2006 to 30 January 2004. 2. The applicant states when he was selected for promotion to major (MAJ) by the board that adjourned on 11 April 1997 he was on a delay for that promotion. He was issued the promotion memorandum to MAJ, and it showed his effective date of promotion as 25 May 1999 but his promotion eligibility date (PED) as 30 January 1997. He believes the Federal recognition order to MAJ should have indicated the same DOR as the PED. This should also adjust his DOR to LTC by 2 years, 3 months, and 26 days from 24 May 2006 to 30 January 2004. 3. The applicant provides: * National Guard Bureau (NGB) Special Orders Number 96 AR, dated 26 May 1999 * Pennsylvania Army National Guard (PAARNG) Orders 074-039, dated 29 April 1999 * Memorandum, dated 6 June 1997, Subject: Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty 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 records show he was born on 16 September 1963. 3. Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer in the Army on 19 May 1984 and subsequently a commissioned officer of the Pennsylvania National Guard (PAARNG) and executed an oath of office on 1 June 1984. He was promoted to captain (CPT) on 31 January 1990. 4. On 10 June 1996, by memorandum, officials at the U.S. Total Army Personnel Command notified him that he was considered for promotion to MAJ by the March 1996 Reserve Component Selection Board (RCSB) but he was not recommended for promotion. 5. He entered active duty in an Active Guard Reserve (AGR) status on 22 July 1997. He completed various field artillery (FA) and other training courses and he served in a variety of staff and/or leadership assignments. 6. On 6 June 1997, he was issued a Memorandum, Subject: Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty that notified him he had been selected for promotion to MAJ under the provisions of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) by an RCSB that adjourned on 11 April 1997. His PED was 30 January 1997. The effective date of promotion will be either of the following dates: * 30 January 1997 (PED) * Date Federal recognition is extended in the higher grade, or * Date following the date Federal recognition is terminated in current Reserve grade 7. Shortly after issuance of the promotion eligibility memorandum, he was notified that he must take action with respect to his promotion (accept, decline, delay, etc.). He was informed that AGR officers who have been selected for promotion are not authorized promotion for a higher grade but would remain on the promotion list until they are removed, promoted (following reassignment to a higher grade AGR position), or promoted to the higher grade once removed from the AGR program. 8. On 1 December 1997, by memorandum, he acknowledged receipt of the notification of involuntary delay of promotion. He acknowledged that AGR officers are under automatic delay of promotion in accordance with Title 10, U.S. Code (USC), section 14311(e). He indicated that he had been serving in an AGR status continuously since 22 July 1997 and that if he were released from AGR status and had not been previously promoted, he would be: * Promoted into a position vacancy * Transferred to the U.S. Army Reserve (USAR) to accept promotion * Decline the promotion (he would be considered as a non-selection) 9. On 19 April 1999, the PAARNG published Orders 074-039 promoting him to MAJ effective 19 April 1999. 10. On 26 May 1999, the NGB published Special Orders Number 95 AR extending him promotion to MAJ with an effective date and DOR as 25 May 1999. 11. On 12 December 2002, he was re-branched from 13A (FA) to 42A (Human Resources Management) and on 9 January 2003, the PAARNG issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-year letter). 12. On 12 January 2006, he was issued Memorandum, Subject: Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty Memorandum that notified him he had been selected for promotion under the provisions of Army Regulation 135-155 to LTC by a board that adjourned on 30 September 2005. His PED was 24 May 2006. The effective date of promotion will be either of the following dates: * 24 May 2006 (PED) * Date Federal recognition is extended in the higher grade, or * Date following the date Federal recognition is terminated in current Reserve grade 13. On 6 March 2006, by memorandum, he requested a delay of promotion. He acknowledged that AGR officers are under automatic delay of promotion in accordance with Title 10, USC, section 14311(e). He indicated that he had been serving in an AGR status continuously since 1 February 2002 and that if he were released from AGR status and had not been previously promoted, he would be: * Promoted into a position vacancy * Transferred to the USAR to accept promotion * Decline the promotion (he would be considered as a non-selection) 14. On 18 June 2007, by memorandum, he was notified that the 2007 Selective Retention Board had recommended him as among the best qualified for continued retention in the PAARNG and selected him for retention. 15. He was honorably released from active duty on 18 September 2008 (later amended to read 3 October 2008) to the control of the State ARNG. 16. He was ordered to active duty on 4 October 2008 in support of Operation Iraqi Freedom and subsequently served in Kuwait/Iraq from 13 January to 18 August 2009. He was honorably released from active duty on 17 October 2009. 17. He served as the Executive Officer, 1st Battalion, 107th FA, from 2 September 2009 to 28 July 2010. Meanwhile, on 5 April 2010, he was notified that the 2011 Selective Retention Board had recommended him as among the best qualified for continued retention in the PAARNG. 18. On 31 July 2010, the PAARNG published Orders 212-001 ordering him to full-time National Guard duty in AGR status (Title 32, USC, section 502(f)) to serve as commander (LTC position), 1st Battalion, 107th FA, paragraph 101, line 01, effective 31 July 2011. 19. On 20 October 2011, the PAARNG published Orders 293-1013 promoting him to LTC effective 17 October 2011 and with a DOR as 24 May 2006, in accordance with paragraph 8-17 of National Guard Regulation (NGR) 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions) The orders stated the effective date of promotion is the date permanent Federal recognition is awarded. 20. On 7 November 2011, the NGB published Special Orders Number 286 AR extending him Federal recognition for promotion to LTC effective 17 October 2007 and with a DOR as 24 May 2006. 21. He was honorably released from active duty on 31 May 2012 due to attainment of mandatory removal date (MRD) and he was transferred to the control of his State. 22. He was also honorably discharged from the ARNG on 31 May 2012 and he was transferred to the Retired Reserve. 23. An advisory opinion was obtained on 11 June 2012 in the processing of this case. An NGB advisory official recommended disapproval of the applicant's request as follows: a. The applicant states he was selected for promotion in 1997 with a PED of 30 June 1997. He contends the PED should be reflected on his Federal recognition orders as the DOR. In consultation with the Federal Recognition Section, the DOR and PED are two separate dates. The DOR reflects when a Soldier is promoted to the next grade; the PED reflects the maximum time in grade (TIG) a Soldier can remain at current grade. In order to calculate the PED, one must determine the maximum TIG for a given rank by adding the number of years to the promotion effective date less one day. b. In the applicant's case, he was promoted to MAJ with a promotion effective date of 25 May 1999. The maximum TIG for promotion to LTC is 7 years. Seven years less one day from 25 May 1999 would be 24 May 2006. This date is reflected on his promotion orders to LTC (Federal recognition Orders 286 AR, dated 7 November 2011). The promotion orders and the dates reflected are accurate and require no further correction. c. His reference to the PED of 30 January 1997 reflected on the Eligibility for Promotion Memorandum dated 6 June 1997 is not a factor under the circumstances in question. An email from the NGB's Policy Division, dated 23 April 2012 stated the PED to MAJ remains 30 January 1997 and the DOR remains 25 May 1999. PED is based on maximum TIG (7 years) from promotion to CPT. The Department of the Army promotion selection board has no effect on his PED. DOR is based on the date Federal recognition was approved and has nothing to do with the PED. The PED on Orders 286 AR is based on his DOR for MAJ (25 May 1999) and not his maximum TIG from CPT. d. the State concurs with this recommendation. 24. On 2 July 2012, he submitted a rebuttal wherein he stated: * The NGB omitted a fact that negates their opinion in that at the time of his selection for promotion to MAJ, he was in an AGR status * Being in an AGR status required him to decline promotion until the availability of a controlled grade from the NGB * There was no controlled grade at the time and he had to execute a declination * His DOR of 25 May 1997 (the date a controlled grade was made available) should have been backdated to 30 January 1997 * NGB's own memorandum states that the PED will be used in computing TIG for promotion to the next higher grade * The NGB overlooked the fact that as an AGR officer his DOR should be the date of the promotion selection * His promotion to LTC was also delayed but his orders reflect the correct PED and correct DOR * He previously approached the State in an effort to correct this error 25. Title 10, USC, section 14308f states the effective date of a promotion of a reserve commissioned officer of the Army or the Air Force who is extended Federal recognition in the next higher grade in the ARNG under Title 32, section 307 or 310 shall be the date on which such Federal recognition in that grade is so extended. 26. Title 10, USC, section 14311e (Delay because of limitations on officer strength in grade or duties to which assigned) states: a. (1) Under regulations prescribed by the Secretary of Defense, the promotion of a reserve officer on the reserve active-status list who is serving on active duty, or who is on full-time National Guard duty for administration of the reserves or the National Guard, to a grade to which the strength limitations of section 12011 of this title apply shall be delayed if necessary to ensure compliance with those strength limitations. The delay shall expire when the Secretary determines that the delay is no longer required to ensure such compliance. b. (2) The promotion of an officer described in paragraph (1) shall also be delayed while the officer is on duty described in that paragraph unless the Secretary of the military department concerned, under regulations prescribed by the Secretary of Defense, determines that the duty assignment of the officer requires a higher grade than the grade currently held by the officer. c. (3) The date of rank and position on the reserve active-status list of a reserve officer whose promotion to or Federal recognition in the next higher grade was delayed under paragraph (1) or (2) solely as the result of the limitations imposed under the regulations prescribed by the Secretary of Defense or contained in section 12011 of this title shall be the date on which the officer would have been promoted to or recognized in the higher grade had such limitations not existed. d. (4) If an officer whose promotion is delayed under paragraph (1) or (2) completes the period of active duty or full-time National Guard duty that the officer is required by law or regulation to perform as a member of a reserve component, the officer may request release from active duty or full-time National Guard duty. If the request is granted, the officer’s promotion shall be effective upon the officer’s release from such duty. The date of rank and position on the reserve active-status list of the officer shall be the date the officer would have been promoted to or recognized in the higher grade had the limitations imposed under regulations prescribed by the Secretary of Defense contained in section of this title not existed. If an officer whose promotion is delayed under paragraph (1) or (2) has not completed the period of active duty or full-time National Guard duty that the officer is required by law or regulation to perform as a member of a reserve component, the officer may be retained on active duty or on full-time National Guard duty in the grade in which the officer was serving before the officer’s being found qualified for Federal recognition or the officer’s selection for the promotion until the officer completes that required period of duty. 27. Army Regulation 135-155 prescribes the policies and procedures for the promotion of Reserve Component officers. a. Table 2-1 provides the TIG requirements for promotion of commissioned officers. It states for promotion from CPT to MAJ, the minimum number of years in the lower grade is 4 years and the maximum number of years in the lower grade is 7 years and for promotion for MAJ to LTC, the minimum number of years in the lower grade is 4 years and the maximum number of years in the lower grade is 7 years. b. Paragraph 4-11 states an officer who has been recommended for promotion to the next higher grade must meet various requirements before being promoted in the Reserve components. c. Paragraph 4-9c states an AGR officer considered and selected by a mandatory promotion board, but who cannot be promoted due to strength and/or position limitations will be forwarded a memorandum from the Chief, Army Reserve that will give the officer two options. The officer can voluntarily leave the AGR program and accept promotion in the higher grade (but not before the date of completion of maximum TIG in the current grade); or the officer can remain in the current grade in the AGR program. Officers who remain in the AGR program will be considered to be in an indefinite involuntary delay status per Title 10, USC, section 14311(e) and will remain on the promotion list. d. Paragraph 4-15c states officers serving on active duty 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. Effective date of promotion of AGR officers will be as shown in paragraph 4-21. AGR officers who have been selected for promotion and are not assigned/attached to a position calling for a higher grade will receive a delay of promotion without requesting such action. AGR officers will remain on the promotion list and serve on active duty in the AGR program until they are— * Removed from the promotion list under paragraph 3-18 * Promoted to the higher grade following assignment/ attachment to an AGR position calling for the higher grade * Promoted to the higher grade, if eligible, following release from active duty e. Paragraph 4-21 states AGR officers selected by a mandatory board will be promoted provided they are assigned/attached to a position in the higher grade. An AGR officer who is selected for promotion by a mandatory promotion board, but who is not assigned/attached to a position in the higher grade will be promoted on the date of assignment/attachment to a higher graded position or the day after release from AGR status. The date of rank will be the date the officer attained maximum TIG or the date on which assigned/attached to a position in the higher grade, whichever is earlier. 28. National Guard Regulation (NGR) 600-100 prescribes policies and procedures governing the appointment, assignment, temporary Federal recognition, Federal recognition, reassignment, and other personnel issues related to commissioned officers of the ARNG. It states commissioned officers of the ARNG are appointed by the several States. These appointments may be federally recognized by the Chief, NGB, under such regulations as the Secretary of the Army may prescribe and under the provisions of this regulation. 29. NGR 600-100, chapter 8, states the promotion of officers in the ARNG is a function of the State, and as in original appointments, a commissioned officer promoted by State authorities has a State status in the higher grade under which to function. However, to be extended Federal recognition in the higher grade, the officer must have satisfied the promotion requirements. It also states a commissioned officer must complete the required minimum years of promotion service prior to being considered for promotion and Federal recognition in the higher grade. 30. NGR 600-100, paragraph 8-2 states promotion criteria is based on efficiency, time in grade, time in commissioned service, demonstrated command and staff ability, military and civilian education, and potential for service in the next higher grade. Promotion is not used solely as a reward of past performance. DISCUSSION AND CONCLUSIONS: 1. The applicant was promoted to CPT in the ARNG on 31 January 1990. He was considered for promotion to MAJ by the March 1996 RCSB but he was not selected for promotion. 2. On 6 June 1997, he was issued a Memorandum that notified him he had been selected for promotion to MAJ by an RCSB that adjourned on 11 April 1997. His PED was 30 January 1997. The effective date of promotion will be either of the following dates (1) 30 January 1997 (PED); (2) date Federal recognition is extended in the higher grade, or (3) date following the date Federal recognition is terminated in current Reserve grade. 3. He entered the AGR program on 22 July 1997 - after his promotion eligibility memorandum had been issued. Once he was in the AGR program, he needed a controlled grade within the AGR in order to be promoted. An AGR officer must be given a control grade in order to get promoted to the higher grade. There is no regulatory requirement for the State to promote an officer upon selection by an RCSB because he was in an AGR status and required a controlled grade. Accordingly, a delay in promotion was required 4. The State ultimately issued him a promotion order (promotion to MAJ) effective 19 April 1999. He was further extended Federal recognition for this promotion with an effective date and DOR of 25 May 1999. 5. The DOR reflects when a Soldier is promoted to the next grade, the PED reflects the maximum TIG a Soldier can remain at current grade. In order to calculate the PED, one must determine the maximum TIG for a given rank by adding the number of years to the promotion effective date less one day. In his case, he was promoted to MAJ with an effective date of 25 May 1999. The maximum TIG for promotion to LTC is 7 years. Seven years less one day from 25 May 1999 would be 24 May 2006. This date is reflected on his promotion orders to LTC (Federal recognition Orders 286 AR, dated 7 November 2011). The promotion orders and the dates reflected are accurate and require no further correction. 6. His reference to the PED of 30 January 1997 reflected on the Eligibility for Promotion Memorandum, dated 6 June 1997 is not a factor under the circumstances in question. PED is based on maximum TIG (7 years) from promotion to CPT. The Department of the Army promotion selection board has no effect on his PED. DOR is based on the date Federal recognition was approved and has nothing to do with the PED. The PED on Orders 286 AR is based on his DOR for MAJ (25 May 1999) and not his maximum TIG from CPT. 7. In view of the foregoing, it appears his DOR to MAJ and to LTC are correct and there is no reason to change either. 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) AR20110013779 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110013779 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1