BOARD DATE: 7 March 2017 DOCKET NUMBER: AR20160012138 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: 7 March 2017 DOCKET NUMBER: AR20160012138 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army and Army National Guard records of the individual concerned be corrected by issuing appropriate promotion documents and orders to correct his effective date of promotion to major and promotion eligibility date to 9 October 2004. 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 an effective date/promotion eligibility date of 14 July 2002 or any other date. _____________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: 7 March 2017 DOCKET NUMBER: AR20160012138 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 records to show he was promoted to the rank of major (MAJ)/pay grade O-4, effective 14 July 2002 (the date of his promotion eligibility date (PED)), instead of 11 January 2005. 2. The applicant states the National Guard Bureau (NGB) may have overlooked the 2002 Department of the Army (DA), Army Promotion List (APL) board results, thereby failing to act on making the necessary MAJ (O-4) position and Federal Recognition (FEDREC) accommodations on his behalf. He adds that this has placed an unnecessary financial burden on him and his family. 3. The applicant provides copies of two promotion memoranda and two orders. CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a Reserve commissioned officer of the Army in the rank of second lieutenant (Air Defense) on 28 May 1989. He served on active duty from 6 February 1990 through 1 April 1994 and attained the rank of first lieutenant (1LT). a. He was appointed as a commissioned officer in the Army National Guard (ARNG) of the United States (ARNGUS) and in the Territory of Guam ARNG (GUARNG) in the rank of 1LT on 21 April 1994. b. He was promoted as a Reserve commissioned officer of the Army in the ARNGUS and GUARNG, in the rank of captain (CPT), effective 15 July 1995. 2. U.S. Total Army Personnel Command (TAPC-MSL-N), St. Louis, MO, memorandum, dated 7 August 2003, subject: Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty, shows the applicant was selected for promotion to MAJ (O-4) with a PED of 14 July 2002 by a board that adjourned on 4 April 2003. It also shows the effective date of promotion will be one of the following dates: * 14 July 2002 * date FEDREC is extended in the higher grade * date following FEDREC is terminated in current Reserve grade 3. Headquarters, Guam Area Command, GUARNG, Fort Juan Muna, Tamuning, Guam, memorandum, dated 27 October 2003, subject: Request for Delay in Promotion, shows Brigadier General Robert M. C____, U.S. Air Force, The Adjutant General, Guam National Guard, requested delay in the applicant's promotion under the provisions of National Guard Regulation (NGR) 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions), chapter 8 (Promotion of Other Than General Officers), paragraph 8-17a(2) (Delay of Promotion). 4. Joint Force Headquarters–Guam, Barrigada, Guam, Order 328-02, dated 22 November 2004, promoted the applicant to MAJ (O-4) effective and with a date of rank (DOR) of 9 October 2004. The authority was DA (AHRC-MSL-N) memorandum, dated 1 July 2004. The additional instructions show the effective date of promotion and DOR will be the date the Chief, NGB, extends FEDREC. The order also shows the effective date and DOR are lined-thru and the (FEDREC) date "11 January 2005" is handwritten on the order. 5. NGB, Arlington, VA, memorandum, dated 11 January 2005, promoted the applicant as a Reserve commissioned officer of the Army to MAJ (O-4) effective 11 January 2005 with a PED of 14 July 2002. 6. NGB, Washington, DC, Special Orders (SO) Number 12 AR, dated 11 January 2005, announced the extension of FEDREC of the applicant's promotion in the rank of MAJ (O-4), effective 11 January 2005 with a PED of 14 July 2002. 7. The applicant was promoted in the GUARNG to lieutenant colonel (LTC)/pay grade (O-5) effective and with a DOR of 23 August 2007. He was then promoted as a Reserve commissioned officer of the Army to LTC (O-5) effective and with a PED of 16 January 2008, and the NGB announced the extension of FEDREC of the applicant's promotion effective 16 January 2008. 8. In the processing of this case, an advisory opinion was obtained from the Deputy Chief, Personnel Policy Division, NGB, Arlington, VA. a. The advisory official recommends partial administrative relief by adjusting the applicant's MAJ promotion effective date and DOR (PED) to 4 April 2003. b. The advisory official states that the applicant was considered by the 2002 DA Mandatory Board for the rank of MAJ, but was not selected for promotion on the DA APL published in July 2002. He then went before the 2003 DA APL and was selected for promotion to the rank of MAJ. The board adjourned on 4 April 2003. (The DA Notice of Promotion Eligibility pertaining to the applicant was dated 7 August 2003.) By the time the applicant was selected for promotion, he had exceeded seven (7) years maximum time in grade (TIG) as a CPT. c. The GUARNG processed a request for FEDREC in November 2003, which may have contributed to the delay in the announcement of FEDREC of the applicant's promotion in the rank of MAJ (effective 11 January 2005). However, 14 July 2002 should not be the effective date/DOR (PED) of his promotion. d. The governing Army regulation stipulates that if an officer selected by a mandatory promotion board has a maximum TIG date that is before the approval date of the board, the officer's promotion date and effective date will be no earlier than the date of approval of the mandatory board by which recommended or the date of Senate confirmation (if required). e. The applicant could have been granted an effective date of 4 April 2003 based on the date the DA promotion board adjourned which recommended him for promotion. Therefore, it is recommended that his promotion effective date and DOR (PED) be adjusted to 4 April 2003. f. The advisory opinion was coordinated with the ARNG Officer Policy Branch and the GUARNG concurred with the recommendation. 9. On 13 December 2016, the applicant was provided a copy of the advisory opinion to allow him the opportunity to submit comments or a rebuttal. A response was not received from the applicant, 10. On 7 February 2017, a staff member of the Army Board for Correction of Military Records (ABCMR) contacted the NGB Personnel Policy Division advisory official to obtain copies of two memoranda referenced in the advisory opinion. A copy of U.S. Total Army Personnel Command (TAPC-MSL-N), St. Louis, MO, memorandum, dated 1 July 2004, subject: Notice of Promotion, could not be located by either the NGB or the GUARNG. REFERENCES: 1. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) provides policy for selecting and promoting commissioned officers of both the ARNGUS and the U.S. Army Reserve (USAR), and warrant officers of the USAR. Chapter 4 (Processing Selection Board Recommendations) shows the names of those officers recommended and approved for promotion are placed on promotion lists published by the Office of Promotions. Separate lists are published and retained for each mandatory and USAR position vacancy board. Paragraph 4-21 (Effective dates) shows that, except as provided elsewhere 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, if required, the date of Senate confirmation. 2. NR 600-100 provides procedures for processing all applications for FEDREC. Chapter 8, paragraph 8-17, shows that officers serving on Active Guard/Reserve (AGR) tours who are selected for promotion by the DA Mandatory Board, but cannot be promoted because of grade authorization 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, in pertinent part (i.e., subparagraph a(2)), promoted to the higher grade following grade authorization availability or reassignment to an AGR position calling for the higher grade. 3. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The evidence of record shows the applicant was promoted to CPT in the ARNGUS and in the GUARNG effective 15 July 1995. a. He reached his 7-year maximum CPT TIG point on 14 July 2002. b. He was not selected for promotion to MAJ by the 2002 DA Board. c. He was selected for promotion to MAJ by the 2003 DA Board. d. The DA promotion eligibility memorandum, dated 7 August 2003, shows the board adjourned on 4 April 2003 and that the effective date of promotion will be, in pertinent part, either his PED (14 July 2002) or the date FEDREC is extended in the higher grade. However, the governing Army regulation shows the effective date of promotion may not precede the date of the promotion memorandum. e. On 27 October 2003, The Adjutant General, Guam National Guard, requested delay in the applicant's promotion until grade authorization availability or upon his reassignment to an AGR position calling for the higher grade. f. Orders issued by the GUARNG promoted him to MAJ effective and with a DOR of 9 October 2004 based on DA (AHRC-MSL-N) memorandum, dated 1 July 2004. g. The NGB announced his promotion as a Reserve commissioned officer of the Army and extended FEDREC in the ARNG effective 11 January 2005 with a PED of 14 July 2002. 2. The NGB and GUARNG advisory officials opine that the effective date and DOR (PED) of the applicant's promotion to MAJ should be changed to 4 April 2003, the date the 2003 DA Promotion Board adjourned. a. The GUARNG promotion order cited DA (AHRC-MSL-N) memorandum, dated 1 July 2004, as the authority for the order announcing the applicant's promotion to MAJ effective and with a DOR of 9 October 2004. However, ARNG officials were not able to locate the memorandum when a copy was requested by the ABCMR. b. NGB and GUARNG advisory officials fail to address the delay in the applicant's promotion directed by The Adjutant General, Guam National Guard. c. The evidence of record shows an officer is promoted after selection if all qualifications and requirements for promotion are met. Based on the evidence of record, it appears the reason for the delay in the applicant's promotion (i.e., being assigned to an available authorized O-4 position) was resolved and he met all the promotion eligibility requirements when the GUARNG issued orders promoting him to MAJ effective and with DOR of 9 October 2004. 3. There is a presumption of administrative regularity in the conduct of governmental affairs. This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption. In the absence of evidence to the contrary, it may be concluded that the effective date of the applicant's promotion announced in the GUARNG promotion order is correct. 4. Based on the available evidence of record, the effective date and DOR (PED) for the applicant's promotion to MAJ should be corrected to 9 October 2004. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160012138 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160012138 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2