BOARD DATE: 19 July 2016 DOCKET NUMBER: AR20150003928 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x_____ __x______ _x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 19 July 2016 DOCKET NUMBER: AR20150003928 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant partial amendment of the ABCMR's decision in Docket Number AR20130008410, dated 5 November 2013. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adjusting his date of rank for promotion to lieutenant colonel to 3 January 2012 and his effective date of that promotion to 7 January 2015. 2. The Board further determined the evidence presented is 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 promotion to lieutenant colonel effective 8 September 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. BOARD DATE: 19 July 2016 DOCKET NUMBER: AR20150003928 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 reconsideration of his prior request for promotion to lieutenant colonel (LTC)/O-5 effective 8 September 2011 with retroactive pay to that date. 2. The applicant states: a. Per Army Regulation 135-155 (Army National Guard (ARNG) and U.S. Army Reserve (USAR) – Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 4-21(d) (Promotion of Active Guard Reserve (AGR) Officers), AGR officers selected by a mandatory board will be promoted provided they are assigned or attached to a position in a higher grade. The date of rank (DOR) will be the date the officer attained maximum time in grade (TIG) or the date on which assigned or attached to a position in the higher grade, whichever is earlier. b. He was assigned as the 1964th Contingency Contracting Team (CCT) team leader (a major (MAJ)/O-4 position) on 4 June 2010, and that position became an LTC/O-5 position on 1 September 2011. He was selected for mandatory promotion on 8 September 2011, and thus he should have been promoted effective 8 September 2011 per Army Regulation 135-155. c. He previously requested retroactive promotion to the rank/grade of LTC/O-5 with an effective date of 10 June 2012 due to maximum TIG while serving under Title 10, U.S. Code, deployment orders per Personnel Policy Guidance (PPG) and Title 10, U.S. Code, section 14304. This request was denied based on an exception in Title 10, U.S. Code, section 12011, that provides limitations on controlled grades, to include LTC/O-5. d. At the time he was unaware that Army Regulation 135-155 required his promotion for different reasons than those he previously presented and with an effective date prior to that which he previously requested. Executive Order (EO) 13223 suspends Reserve Component (RC) officer strength limitations and he believes the board members were not made aware of this when making their prior decision. e. He consulted with civilian attorneys and Judge Advocate General attorneys who concur with his interpretation of the facts. 3. The applicant provides: * Army Board for Correction of Military Records (ABCMR) Record of Proceedings in Docket Number AR20080015847, dated 8 January 2009 * Military Department of Arkansas, Office of the Adjutant General, Permanent Orders 313-10, dated 9 November 2011 * Contingency Contracting Teams, Modified Table of Organization and Equipment (MTOE) Approved Document, prepared on 9 November 2011 * Military Department of Arkansas, Office of the Adjutant General, Orders 122-002, dated 2 May 2010 * Military Department of Arkansas, Office of the Adjutant General, Orders 154-808, dated 3 June 2010 * Military Department of Arkansas, Office of the Adjutant General, memorandum, dated 7 February 2012, subject: Notification of Eligibility for Promotion as a Reserve Commissioned Officer – Title 32 AGR (LTC Army Promotion List 2011 Selection Board) * ABCMR Record of Proceedings in Docket Number AR20130008410, dated 5 November 2013 * National Guard Bureau (NGB) advisory opinion, dated 1 April 2016 * Army Review Boards Agency letter, dated 5 April 2016 * rebuttal to NGB advisory opinion, dated 9 April 2016 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130008410 on 5 November 2013. 2. The applicant contends that Army Regulation 135-155 required his promotion for different reasons than those he previously presented and with an effective date and DOR prior to that which he previously requested, which are new arguments that warrant consideration by the Board at this time. 3. After prior enlisted service in the Army National Guard, the applicant was appointed as a second lieutenant/O-1 in the Arkansas Army National Guard (ARARNG) effective 11 July 1994. 4. He was ordered to full-time National Guard duty in an AGR status under Title 32 effective 4 June 2004. He was promoted to the rank of major (MAJ)/O-4 on 10 June 2005. 5. An ARARNG Officer Selection Board convened from 22 to 24 September 2009 to consider selection of MAJs/O-4s for promotion to LTC/O-5. The applicant's military records were evaluated at that time and he was deemed fully qualified, but was not selected for placement on the Standing Promotion List by that year's board. 6. The applicant provided Military Department of Arkansas, Office of the Adjutant General, Orders 122-002, dated 2 May 2010, which show he was continued on active duty in an AGR status at the Arkansas Joint Forces Headquarters (JFHQ) under the authority of Title 32, U.S. Code, to serve as the U.S. Army Medical Department Strength Manager effective 4 June 2010. He was assigned to the position of commander against paragraph and line number 290-01. 7. Military Department of Arkansas, Office of the Adjutant General, Orders  154-808, dated 3 June 2010, released him from JFHQ as the commander effective 1 June 2010 and transferred him to 1964th CCT as the contract team leader. He was assigned to paragraph and line number 101-01. Although the corresponding MTOE has not been provided, the applicant states this position was an MAJ/O-4 billet at the time. The assignment/loss reason shows this transpired at the individual's request. 8. Military Department of Arkansas, Office of the Adjutant General, Permanent Orders 313-10, dated 9 November 2011, directed the reorganization of the 1964th CCT under a newly approved MTOE effective 1 September 2011. The new MTOE, prepared on 9 November 2011, shows the contract team leader position in paragraph and line number 101-01 as an LTC/O-5 position. 9. Military Department of Arkansas, Office of the Adjutant General, Orders  338-004, dated 4 December 2011, called him to active duty as a member of the 1964th CCT in support of Operation Enduring Freedom under Title 10, U.S. Code, section 12302, on 2 January 2012. 10. Military Department of Arkansas, Office of the Adjutant General memorandum, dated 7 February 2012, subject: Notification of Eligibility for Promotion as a Reserve Commissioned Officer – Title 32 AGR (LTC Army Promotion List 2011 Selection Board), informed him he was selected for promotion to LTC/O-5 by a Department of the Army (DA) RC Selection Board which convened on 8 September 2011. a. He was advised his name would be placed on a promotion list and remain on that list while he served on active duty in the Title 32 AGR Program unit until he was: (1) removed from the promotion list under the provisions of Army Regulation 135-155, paragraph 3-18; (2) promoted to the higher grade following assignment to a Title 32 AGR position calling for the next higher grade; or (3) promoted to the next higher grade, if eligible, following the release from active duty. b. He was also directed to sign an attached memorandum (not available for the Board's review), subject: Statement of Understanding for Automatic Delay of Promotion to LTC, and return it to the Office of the Adjutant General by 7 April 2012. 11. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he served in Afghanistan from 19 January 2012 through 20 December 2012, when he was honorably released from active duty due to completion of active service and transferred to the 1964th CCT to continue active duty in a Title 32, U.S. Code, AGR status. 12. Military Department of Arkansas, Office of the Adjutant General, Orders  354-039, dated 19 December 2012, ordered him to active duty in the rank of MAJ/O-4 under the authority of Title 32, U.S. Code, for AGR tour continuation after mobilization as an AGR manager at Arkansas JFHQ effective 21 December 2012. 13. Military Department of Arkansas, Office of the Adjutant General, Orders  013-825, dated 13 January 2015, promoted him to LTC/O-5 effective 7 January 2015 with a DOR of 7 January 2015. The additional instructions state his duty assignment/paragraph and line number were human resources officer, paragraph and line number 007-02. The effective date in the ARNG would be the date permanent Federal recognition orders were published and he would be paid in the new grade level from the effective date of permanent Federal recognition established by the Chief, NGB. 14. The Deputy Chief, Personnel Policy Division, NGB, provided an advisory opinion on 1 April 2016 wherein he stated: a. The applicant submitted a request to the ABCMR in April 2014, requesting backdating of his rank. The request was denied due to Title 10, U.S. Code, section 12011, which provides limitations on RC officers serving on full-time RC duty in the grades of O-4, O-5, and O-6. The applicant contends the reason for this denial was invalid based on EO 13223 that he states suspends RC officer strength limitations. However, the EO states the president invokes "sections 123, 123a, and 12006 of Title 10, United States Code, to suspend certain laws relating to promotion, involuntary retirement, and separation of commissioned officers; end strength limitations; and Reserve component officer strength limitations." Title 10, U.S. Code, section 12006, identifies the RC officer strength limitations that may be suspended by emergency declaration and includes only sections 12003, 12004, and 12005. Accordingly, Title 10, U.S. Code, section 12011 (which authorizes control grade limitations), is not included among the suspended laws. b. Military Department of Arkansas, Office of the Adjutant General, Orders 154-808, dated 3 June 2010, transferred the applicant (then an MAJ/O-4) to a contract team leader position (paragraph and line number 101-01) with the 196th CCT. On 1 September 2011, a new MTOE was published for the 196th CCT, changing the applicant's position from an MAJ/O-4 position to an LTC/O-5 position. c. After serving as an MAJ/O-4 for 6 years, he was considered for promotion to LTC/O-5 under the DA RC LTC board which convened on 7 September 2011. The Army Promotion List was approved on 3 January 2012, with the applicant being recommended for promotion. d. Although he was in an LTC/O-5 position, the applicant did not receive an AGR control grade authorization for LTC/O-5. Eight AGR officers were placed ahead of him on the State promotion list. The Arkansas ARNG was only allocated 18 LTC/O-5 controlled grades and was fully executing all of the allocations. Per the provisions of Army Regulation 135-155 and Title 10, U.S. Code, section 14311, his promotion was involuntarily delayed because there were no available authorizations. e. The applicant was mobilized in support of Operation Enduring Freedom from 2 January 2012 through 20 December 2012. Per PPG for Overseas Contingency Operations, paragraph 13-10, he could have been matched against a higher-graded Selected Reserve position to be promoted while deployed. However, he was advised that accepting a promotion while mobilized would result in his immediate transfer to the Individual Ready Reserve (IRR) upon return, as there would not be an authorized LTC/O-5 control grade available in the State. An officer is given 180 days upon completion of the deployed tour to be assigned against the higher-graded position and according to the PPG, States are not authorized additional control grades for the purpose of reassigning AGR Soldiers back into the AGR Program. The applicant chose to remain in the AGR Program and returned from deployment as an MAJ/O-4. By this time, his position had reverted to an MAJ/O-4 position with publication of the September 2012 MTOE. f. The 1964th CCT began inactivation on 31 August 2014. As a result, the applicant was transferred from the contract team leader position to an LTC/O-5 position as a human resources officer in the Arkansas JFHQ effective 7 January 2015. He was concurrently authorized a control grade and received Federal recognition for promotion to LTC/O-5 effective 7 January 2015 with a DOR of 7 January 2015. g. According to Army Regulation 135-155, when AGR commissioned officers have been selected by a mandatory board and are involuntarily delayed due to strength in grade (control grade) and/or position limitations, the DOR will be the date on which the officer would have been promoted had the limitation not existed. The DOR will be the date the officer attained maximum TIG or the date the officer was assigned or attached to a position in the higher grade, whichever is earlier. h. The applicant was involuntarily delayed promotion due to control grade limitations in the ARARNG. EO 13223 does not suspend Title 10, U.S. Code, section 12011 which authorizes control grades. Regardless of the fact that he was mobilized, he still occupied an LTC/O-5 position in the State on 3 January 2012, the approval date of the mandatory selection board. For this reason, NGB recommends adjustment of the applicant's DOR to 3 January 2012. Had the control grade limitations not existed, he would have been eligible for promotion on this date and Army Regulation 135-155 allows for adjustment of the DOR to reflect this date. Because there was no control grade available for the applicant until 7 January 2015, NGB recommends disapproval of a change to the effective date. There is no authority to change the effective date for pay and allowance purposes in such a situation, only the DOR. i. This advisory opinion was coordinated with the NGB Federal Recognition Branch and the NGB Office of the Judge Advocate General. The Arkansas ARNG concurs with the recommendation. 15. The applicant was provided a copy of the advisory opinion and given an opportunity to respond. He provided an 8-page rebuttal, dated 9 April 2016, which states: a. NGB argues that EO 13223 invokes sections 123 123a, and 12006 of Title 10, U.S. Code, to suspend certain laws relating to promotion, involuntary retirement and separation of commissioned officers, end strength limitations, and RC officer strength limitations. They argue it does not relieve controlled grade restrictions in that it does not suspend Title 10, U.S. Code, section 12011, because Title 10, U.S. Code, section 12006, does not provide for its suspension as it does for section 12003,12004, or 12005. This is a restrictive interpretation. Although section 12006 allows the President to specifically suspend sections 12003, 12004, or 12005 in a time or war or national emergency, the omission of section 12011 from the referenced list of sections he has the authority to suspend does not mean the President is prohibited from suspending it. Additionally, section 12011 provides that the Secretary of Defense may waive AGR controlled grade restrictions. If it is within the Secretary of Defense's authority to do so, it is also within the President's authority to do so. The ABCMR previously referenced the EO and its suspension of RC strength limitations in Docket Number AR20080015847. b. He was transferred to the 1964th CCT leader position on 1 June 2010. At that time he had already been notified of the 2012 deployment and the State of Arkansas was aware the new MTOE would result in the position becoming a LTC/O-5 position, which it did on 1 September 2011. He was already on the State promotion list at that time. At the time of his transfer to the CCT, he was advised by the brigade executive officer that the deployment would result in his promotion regardless of where he was on the promotion list. All previous AGR personnel who deployed in higher-graded positions were promoted upon deployment. The State executed this by "borrowing" controlled grades from NGB until another individual retired. c. He discussed this with the Assistant Inspector General who advised him that he and another one of his peers had been skipped over by an individual below them on the promotion list who was scheduled for deployment, setting a precedent for promoting individuals out of sequence if deployed in a higher grade. d. He was notified of his selection by the DA RC LTC promotion board on 3 January 2012. Despite having 6 years in grade as an MAJ at that time, this was his first DA board look and he had already been selected by the State selection board the previous year. The Arkansas ARNG sends all AGR MAJs to the DA board in the 6th year. At the time of his selection, he was not provided an AGR controlled grade. There were 8 AGR officers ahead of him on the State list and Arkansas was allocated only 18 AGR LTC/O-5 controlled grades. Those allocations were being fully executed. Nonetheless, Arkansas ARNG "borrowed" 3 controlled grades within months of his deployment, executing 21 of 18 AGR LTC/O-5 controlled grades. The State has historically promoted out of sequence for deployed officers using "borrowed" controlled grades from NGB. e. He was advised during the 2012 deployment that he could accept a promotion while mobilized, but it would result in his immediate transfer to the IRR upon return from mobilization. At the time, he took that as a threat and chose to say nothing once threatened, which is interpreted by NGB in their opinion as choosing to remain in the Title 32 AGR Program. He now knows this information pertaining to transfer to the IRR after return from mobilization to be an incomplete reference to the PPG for Overseas Contingency Operations. f. The PPG, paragraph 13-10b.3(d), states promotion was mandatory unless declined. He did not decline his promotion at any time during his deployment. He did not sign a declination until October 2014 when he was advised that if he did not sign it, his record would be sent to the DA board as a one-time non-selectee immediately prior to his pending promotion, resulting in further delay or a possible two-time non-selectee. Additionally, the reference to having 180 days to find an LTC/O-5 position upon return from deployment in lieu of being sent to the IRR only applied to MTOE or table of distribution and allowance positions and was not specific to AGR positions. Although the MTOE position he was in while deployed was set to revert to an MAJ/O-4 position in Fiscal Year 2013, that same MTOE position was due to then revert to an LTC/O-5 position in 2015. g. He was actually assigned to an AGR LTC/O-5 position upon his return to the State and therefore would not have needed to look for an LTC/O-5 position. Military Department of Arkansas, Office of the Adjutant General, Orders 354-039, dated 19 December 2012, show this. His full-time job per those orders was serving as the AGR manager for the State of Arkansas and that is the job he actually performed every day from 20 December 2012 through 1 July 2015. At the same time, on separate orders, he remained the CCT team leader because the CCT was being divested in 2015, thus the Arkansas ARNG wasn't interested in training someone else for the position and he was the only individual in the State qualified for the position. Therefore, he remained "on the books" as the CCT team leader while performing a different job in his full-time capacity to keep the State's Unit Status Reporting looking good. Ultimately, the question must be asked: should he not have received pay as an LTC/O-5 if he were performing LTC/O-5 functions in an active duty status for the State? h. The PPG clearly states he should have been promoted to LTC/O-5 and the State had the capability to "borrow" controlled grades in order to promote him. The opinion states he was authorized a controlled grade on 7 January 2015 when he was assigned to the LTC/O-5 human resources officer positon. The opinion fails to mention that with this controlled grade he became number 21 of 18 authorized controlled grades in the States. Additionally, he was already assigned to that position before that time, although he was also still assigned to the CCT position "on the books," which no longer truly existed. i. Controlled grades are not the determining factor for effective date of promotion. Controlled grades are intended to be used as the determining factor for when an AGR officer is placed in an LTC/O-5 position. It could be argued that an AGR officer should not be placed in any LTC/O-5 position (either AGR or M-day) until a controlled grade is available, as other states do by policy. However, if an organization places an individual in the higher-graded position, expecting them to execute the duties and responsibilities thereof, they must pay the individual accordingly. Army Regulation 135-155 fully supports this conclusion. j. The opinion suggests he was not deserving of the promotion to LTC/O-5 because the CCT position reverted to an MAJ/O-4 position in September 2012, but the ARARNG knew he would be returning to an LTC/O-5 position as the AGR manager upon his return from deployment, even if they kept him on the books in the CCT position. A previous Board decision, included, regulation, and law support his request. 16. The applicant provided a copy of the ABCMR Record of Proceedings in Docket Number AR20080015847, dated 8 January 2009, which pertains to another officer who was granted relief. In that case, the individual was serving as an AGR officer assigned to the Office of the Secretary of Defense under the authority of Title 10, U.S. Code, requesting correction of his effective date of promotion based on his assignment to an authorized position in the higher grade at the time of his selection. He was not ordered to active duty under authority of Title 10, U.S. Code, in support of a contingency operation (mobilized). His promotion effective date had been delayed based on State ARNG (Title 32) position limitations. REFERENCES: 1. Army Regulation 135-155 provides policy for selecting and promoting commissioned officers of both the ARNG of the United States (ARNGUS) and the USAR, and warrant officers of the USAR. a. Paragraph 2-10 (Mandatory selection boards) states mandatory selection boards will convene each year to consider ARNGUS and USAR officers on the Reserve active-duty list for promotion to captain (CPT)/O-3 through LTC/O-5. b. Table 2-1 (TIG Requirements Commissioned Officers, Other Than Commissioned Warrant Officers) shows the minimum TIG as an MAJ/O-4 for promotion to LTC/O-5 is 4 years and the maximum TIG as an MAJ/O-4 for promotion to LTC/O-5 is 7 years. c. Paragraph 4-11 (General) states an officer who has been recommended for promotion to the next higher grade must meet the requirements listed in this section. The effective date of the promotion will be computed as prescribed in section III (Dates of Promotion). d. Section III (Dates of Promotion), paragraph 4-15 (General) states procedures in section IV (Voluntary Delay of Promotion) will be followed for officers who delay promotion. Follow the procedures in this section in computing effective promotion dates for all other RC commissioned officers serving on the Reserve Active Status List (RASL) and warrant officers. Do not antedate effective dates of promotion unless required by law. 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 (Effective dates). 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, promoted to the higher grade following assignment/attachment to an AGR position calling for the higher grade, or promoted to the higher grade, if eligible, following release from active duty. e. Paragraph 4-21 states, except where elsewhere provided in this regulation, 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. When an officer does not meet the qualifications for promotion, the effective date of promotion will not be earlier than the later date all qualifications are met. In no case will the DOR or effective date of promotion be earlier than the date the board is approved or, the date of Senate confirmation (if required), or the date the officer meets maximum TIG, whichever is later. 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 DOR 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. 2. EO 13223, section 2, states to allow for the orderly administration of personnel within the Armed Forces, the following authorities vested in the President are hereby invoked to the full extent provided by the terms thereof: section 527 of Title 10, U.S. Code, to suspend the operation of sections 523, 525, and 526 of that title, regarding officer and warrant officer strength and distribution; and sections 123, 123a, and 12006 of Title 10, U.S. Code, to suspend certain laws relating to promotion, involuntary retirement, and separation of commissioned officers; end strength limitations; and RC officer strength limitations. 3. Title 10, U.S. Code, section 12011 states of the total number of an RC who are serving on full-time RC duty at the end of any fiscal year, the number of those members who may be serving in each of the grades of MAJ/O-4, LTC/O-5, and colonel (COL)/O-6 may not, as of the end of that fiscal year, exceed the number determined in accordance with the following table. The table shows the ARNG is limited to 850 RC officers who may be serving in the grade of LTC/O-5. 4. Title 10, U.S. Code, section 14311, pertains to delays in promotion because of limitations on officer strength in grade or duties to which assigned. a. Under regulations prescribed by the Secretary of Defense, the promotion of a Reserve officer on the RASL 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 Title 10, U.S. Code, section 12011, apply shall be delayed if necessary to ensure compliance with those strength limitations. The delay shall expire when the Secretary determines the delay is no longer required to ensure such compliance. b. The promotion of an officer described in the above paragraph 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 the duty assignment of the officer requires a higher grade than the grade currently held by the officer. c. The DOR and position on the RASL of a Reserve officer whose promotion to or Federal recognition in the next higher grade was delayed under the above two paragraphs solely as the result of the limitations imposed under the regulations prescribed by the Secretary of Defense or contained in Title 10, U.S. Code, section 12011, shall be the date on which the officer would have been promoted to or recognized in the higher grade had such limitations not existed. c. If an officer whose promotion is delayed under above paragraphs 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 an RC, 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 DOR and position on the RASL 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 Title 10, U.S. Code, section 12011, not existed. If an officer whose promotion is delayed under the above paragraph 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 an RC, 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. 5. PPG for Overseas Contingency Operations, chapter 13 (Personnel Management), discusses personnel procedures conducted throughout mobilization and deployment. Paragraph 13-10 (Commissioned Officer Promotions) states the Army's existing policy for promoting RC officers to the ranks of CPT/O-3 through COL/O-6. The revised promotion policy impacts troop program unit, M-Day (ARNG), AGR, IMA, and IRR officers involuntarily mobilized to support current contingency operations under the provisions of Title 10, U.S. Code, sections 12301(a), 12302, and 12304, and are on an approved mandatory selection board promotion list. a. Officers mobilized under the provisions of Title 10, U.S. Code, section 12302, and officers other than Army Reserve officers on active duty for operational support tours under the provisions of Title 10, U.S. Code, section 12301(d), may be matched against a vacant higher grade Selected Reserve position to be promoted. Upon release from active duty/completion of the tour of active duty in which the officer is promoted, the officer will be assigned against that position within 180 days. If the officer declines or is unwilling or unable to occupy the position against which he/she was matched or appointed upon completion of his or her current tour of active duty, the officer (whether a member of the USAR or ARNG) shall be transferred immediately to the IRR unless assigned to some higher-graded RC position within 180 days after completing his/her current tour of active duty. b. In accordance with Title 10, U.S. Code, sections 14304(b), 14316(b), and 14316(d), all RC officers who have been recommended for promotion to the grades of CPT/O-3 through LTC/O-5 by a mandatory promotion board, and who are on an approved promotion list (excluding position vacancy promotion board), 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 as specified in Title 10, U.S. Code, section 14304(a), unless the officer has voluntarily delayed or declined promotion in accordance with Title 10, U.S. Code, section 14312(c). This also applies to sanctuary (Title 10, U.S. Code, section 12686) officers. c. AGR managers are responsible for briefing AGR Soldiers on the impact that promotions received while mobilized could have upon the Solders' re-accession into the AGR Program. The AGR Program has assignment and controlled grade restrictions. While mobilized, AGR Soldiers will not be promoted over-grade in the mobilized MTOE position. States will not be authorized additional controlled grades solely for the purpose of reassessing Soldiers into the AGR Program who were promoted while mobilized. d. 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 in a Federally recognized unit in the ARNG. All ARNG officers promoted under the provisions of this new policy must be assigned to the position against which they are matched or appointed within 180 days after demobilization or transfer to the IRR. The promotion authority for ARNG officers and warrant officers ordered to active duty under the provisions of Title10, U.S. Code, section 12302 or 12304, is the Chief, NGB. Mobilized ARNG officers, regardless of the units to which they are assigned or mobilized, may be promoted against unit vacancy positions within their respective States provided they meet the qualifications outlined in National Guard Regulation 600-100, paragraph 8-7. The position to which the officer will be assigned upon promotion must be a valid and vacant (no "double slotting") MTOE or TDA position of the higher grade. e. ARNG officers selected for promotion by a DA mandatory promotion board, but not promoted before being mobilized, or who were selected for promotion by a DA mandatory promotion board while mobilized, will have the following options: (1) Officers may be promoted immediately when appointed in the State against the position of the higher grade the officer will occupy upon demobilization. This policy applies only to DA mandatory promotion selectees; it does not apply to unit vacancy promotions or to officers selected for promotion to CPT/O-3 who do not possess a baccalaureate degree. While this is authorized, the States are not required to promote individuals utilizing this procedure. (2) Officers may delay the promotion for up to 3 years for LTC and below. Upon approaching the maximum TIG date while still mobilized, the officer can request a delay of promotion in accordance with Army Regulation 135-155, chapter 4, section IV. This may be to the officer's advantage if the officer's maximum TIG date is late in the period of mobilization, affording the officer a longer period to find a suitable position in the Selected Reserve. (3) Officers may decline the promotion. At any time prior to or upon reaching maximum TIG date, the officer can choose to decline the promotion. Upon doing so, the officer's name will be removed from the promotion list and the officer will be considered to have been non-selected for promotion. The provisions of Army Regulation 135-155, paragraph 4-28, apply. DISCUSSION: 1. The applicant requests reconsideration of his prior request for promotion to LTC/O-5 effective 8 September 2011 with retroactive pay to that date. 2. The applicant is serving on active duty in a State AGR status (Title 32). The AGR Program has assignment and controlled grade restrictions. Title 10, U.S. Code, section 12011, legally limits or sets control grade restrictions for the total number of RC officers serving on full-time RC duty at the end of any fiscal year in the ranks of MAJ/O-4, LTC/O-5, and COL/O-6. States will not be authorized additional controlled grades solely for the purpose of reaccessioning Soldiers into the AGR Program who were promoted while mobilized. 3. EO 13223 does not suspend Title 10, U.S. Code, section 12011, and its mandate to set control grade restrictions, despite the applicant's claims to the contrary. 4. He references ABCMR Docket Number AR20080015847 pertaining to another officer as evidence that his case should be decided in a similar fashion. While the applicants in both cases are AGR officers requesting correction of their DORs and effective dates of promotion, the cases are dissimilar in that the other officer was ordered to active duty in an AGR (Title 10) status in the higher-graded position and makes no reference to a delay in promotion being based on mobilization in a lower-graded position or awaiting a State AGR (Title 32) control grade authorization for the higher-graded position. 5. He was considered and recommended for promotion to LTC/O-5 under the DA RC LTC board which convened on 8 September 2011. Although he was assigned to an LTC/O-5 position with the 1964th CCT MTOE change effective September 2011, he did not receive an AGR control grade authorization for LTC/O-5 at that time. Eight AGR officers were placed ahead of him on the State of Arkansas promotion list. The ARARNG was only allocated 18 LTC/O-5 controlled grades and was fully executing all of those allocations. He did not mobilize under Title 10, U.S. Code, orders until 2 January 2012. 6. His notification of selection for promotion to LTC/O-5 by the 2011 selection board not only advised him of his selection for promotion to LTC/O-5, but it also advised him to sign an attached memorandum titled, "Statement of Understanding for Automatic Delay of Promotion to LTC." Although that memorandum is not available for review, the title implies the applicant was informed that his promotion to LTC/O-5 would be delayed, presumably due to the lack of a control grade authorization for him. 7. Title 10, U.S. Code, section 14311, specifies the promotion of a Reserve officer on the RASL who is serving on active duty, or who is on full-time AGR duty, to a grade to which the strength limitations of Title 10, U.S. Code, section 12011, apply shall be delayed if necessary to ensure compliance with those strength limitations. The delay shall expire when the Secretary determines the delay is no longer required to ensure such compliance. 8. The alternate options to delay promotion would have been to decline the promotion or agree to release from AGR status and transfer to the IRR within 180 days of release, thus freeing him from the control grade limitations and allowing for the promotion at that time. 9. In no case will the DOR or the effective date of promotion be earlier than the date the board is approved or, the date of Senate confirmation (if required), or the date the officer meets maximum TIG, whichever is later. The approval date of the mandatory selection board was 3 January 2012; therefore, neither his DOR nor the effective date of his promotion can predate 3 January 2012. 10. Title 10, U.S. Code, section 14311, further states the DOR and position on the RASL of a Reserve officer whose promotion to or Federal recognition in the next higher grade was delayed solely as the result of the limitations imposed under the regulations prescribed by Title 10, U.S. Code, section 12011, shall be the date on which the officer would have been promoted to or recognized in the higher grade had such limitations not existed. It specifically does not direct that the effective date of promotion shall be the date on which the officer would have been promoted had such limitations not existed. Only the DOR is specifically directed to be the date on which the officer would have been promoted had such limitations not existed. 11. The applicant argues he actually held an LTC/O-5 position and performed the duties commensurate with that LTC/O-5 position in the State after his return from deployment, but was concurrently kept "on the books" in the 1964th CCT team leader position, which in the meantime had reverted to an MAJ/O-4 position with the 2012 MTOE upon redeployment. However, it is not possible to be simultaneously assigned against two paragraphs and line numbers and the evidence suggests he was actually assigned against the paragraph and line number of the MAJ/O-4 position, as both the applicant and NGB claim as much. The control grade limitations pertain to actual assigned positions and their authorized ranks. 12. Had the control grade limitations mandated by Title 10, U.S. Code, section 12011, not been in place, the applicant would have been promoted on 3 January 2012, as the evidence of record shows he occupied an LTC/O-5 position in the State at the time and that is the approval date of the mandatory selection board. DOR is directed to be the date on which the officer would have been promoted had control grade limitations not existed, in his case 3 January 2012. 13. With the inactivation of the 1964th CCT, the applicant was transferred from the contract team leader position to an LTC/O-5 position as a human resources officer in the Arkansas JFHQ effective 7 January 2015. He was concurrently authorized a control grade in the ARARNG and received Federal recognition for promotion to LTC/O-5 effective 7 January 2015. The law does not direct that the effective date of promotion shall be the date on which the officer would have been promoted had such control grade limitations not existed. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150003928 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150003928 17 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2