IN THE CASE OF:  BOARD DATE:  27 February 2020 DOCKET NUMBER:  AR20180003061 


APPLICANT REQUESTS:  reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision recommending correction to the effective date of his promotion to major and promotion eligibility date from 9 October 2004 to 4 April 2003. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 







•DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552)•Headquarters, Guam Army National Guard (ARNG), Order 013-01, dated13 January 2003•email, Colonel T____, Guam ARNG, to National Guard Bureau (NGB), dated 27 November 2016 and 28 November 2016•ABCMR Docket Number AR20160012138, dated 7 March 2017 



REFERENCES: 

1.Army Regulation 135-155 (Promotion of Commissioned Officers and WarrantOfficers Other than General Officers), in effect at the time, prescribed policy andprocedures used for selecting and promoting commissioned officers of the ARNG andU.S. Army Reserve.

a.Paragraph 4-21(d) (Promotion of Active Guard Reserve (AGR) Officers) statedAGR 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 time in grade or the date on which assigned/attached to a position in the higher grade, whichever is earlier. 

b.Paragraph 4-21(e) (Promotion of Officer with Maximum Time in Grade before theDate of the Board) stated if an officer selected by a mandatory promotion board has a maximum time-in-grade 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. 

c.Table 2-1 (Time in Grade Requirements Commissioned Officers, Other thanCommissioned Warrant Officers) showed the maximum years in lower grade for promotion from captain/O-3 to major/O-4 is 7 years and from major/O-4 to lieutenant colonel/O-5 is 7 years. 

2.National Guard Regulation 600-100 (Commissioned Officers Federal Recognitionand Related Personnel Activities) prescribes policies and procedures governing theappointment, assignment, temporary Federal recognition, Federal recognition,reassignments, transfers between States, branch transfers, area of concentrationdesignation, utilization, branch detail, attachment, and separation of commissionedofficers.

a.Paragraph 4-3(g) (Assignment Policies – Branch, Area of Concentration,Functional Area, and Skill) states the most important aspect of commissioned officer assignments involves matching the individual qualifications, which are expressed as branch, area of concentration, functional area, and skills, with the requirements of the authorization document.  All commissioned officers must be qualified and have been awarded the branch and area of concentration or appear before a Federal Recognition Board for branch transfer prior to assignment. 

b.Paragraph 8-17 (Delay of Promotions) states officers serving on AGR tours whoare selected for promotion by the Department of the Army Mandatory Board but cannot be promoted because of grade authorizations 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 promoted to the higher grade following grade authorization availability or reassignment to an AGR position calling for the higher grade. 

3.Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes policiesand procedures governing transfer and discharge of Army officer personnel.

a.Paragraph 2-23 (Rules for Processing Involuntary Release from Active Duty Dueto Maximum Service) states a Reserve Component lieutenant colonel not recommended for promotion to colonel will be separated not later than the last day of the month in which he or she completes 28 years of commissioned officer service. 

b.Paragraph 6-4 (Career Recognition) states the officer's commander is authorizedto issue an additional announcement of the retirement when the retiring officer's career merits special recognition. 

FACTS: 

1.Incorporated herein by reference are military records which were summarized in theprevious consideration of the applicant's case by the ABCMR in Docket NumberAR20160012138 on 7 March 2017.

2.The applicant states:

a.All promotion requirements to major as outlined in the original Board decisiondocument were in fact met by at least 4 April 2003.  NGB and the Guam ARNG both agree the date of 4 April 2003 should be his promotion eligibility date and date of rank to major. 

b.The original ABCMR decision mentioned that the Guam Adjutant Generalrequested a delay in promotion until an AGR grade authorization was available or upon reassignment to an AGR position calling for the higher rank/grade of major/O-4.  The same Board decision mentioned that the reason for the delay was resolved when the Guam ARNG issued orders for promotion to the rank/grade of major/O-4 with a date of rank of 9 October 2004.  Headquarters, Guam ARNG, Order Number 013-01, dated 13 January 2003, assigned him to a major/O-4 position on 13 January 2003. 

c.The ABCMR should reconsider the original decision and find that 4 April 2003 ishis correct date of rank to major. 

3.The applicant was promoted to rank/grade of captain/O-3 as a member of the GuamARNG effective 15 July 1995.

4.On 26 July 2002, he completed the Air Defense Reserve Component Captain'sCareer Course.

5.Headquarters, Guam ARNG, Orders 252-30, dated 9 September 2002, ordered himto active duty for a period of 3 years for an initial AGR tour as the 105th TroopCommand Resource Project Officer/Training Officer under the provisions of Title 32,U.S. Code, section 502(f).  His area of concentration is shown as 14A (Air DefenseArtillery Officer).

6.Headquarters, Guam ARNG, Order 013-01, dated 13 January 2003, relieved himfrom his assignment as the 105th Troop Command Training Officer and assigned himas the 105th Troop Command S-4 in area of concentration 90A (Logistics Officer)effective 10 January 2003.


7.Headquarters, Guam ARNG, Order 169-15, dated 18 June 2003, released him fromhis assignment as the 105th Troop Command Training Officer and assigned him toHeadquarters and Headquarters Detachment, Guam Area Command, as anEnvironmentalist in area of concentration 25A (Signal Officer).  His area ofconcentration is shown as 25A (Signal Officer).

8.The U.S. Total Army Personnel Command memorandum, dated 7 August 2003,announced the applicant's selected for promotion to rank/grade of major/O-4 by a boardthat adjourned on 4 April 2003.  His promotion eligibility date is shown as 14 July 2002.His effective date of promotion will be either of the following dates:

.14 July 2002

.the date Federal recognition is extended in the higher grade

.the date following the date Federal recognition is terminated in current Reservegrade



9.On 27 October 2003, the Adjutant General, Guam National Guard, requested a delayin promotion of the applicant, referencing National Guard Regulation 600-100,paragraph 8-17a(2).

10.Joint Force Headquarters-Guam Order 328-02, dated 22 November 2004,promoted the applicant to major/O-4 with an effective date and date of rank of 9 October2004.  The additional instructions state the effective date of promotion and date of rankwill be the date the Chief, NGB, extends Federal recognition.  Orders will be amendedto reflect the Federal recognition date.

11.NGB Special Orders Number 12 AR, dated 11 January 2005, extended Federalrecognition to the applicant for promotion to major/O-4 with an effective date of11 January 2005 and a promotion eligibility date of 14 July 2002.

12.NGB memorandum, dated 11 January 2005, subject:  Promotion as a ReserveCommissioned Officer of the Army, announced the applicant's promotion to therank/grade of major/O-4 effective 11 January 2005.  His time in grade for promotion tothe next grade will be computed from his promotion eligibility date of 14 July 2002.

13.NGB Special Orders Number 15 AR, dated 22 January 2008, extended Federalrecognition to the applicant for promotion to lieutenant colonel/O-5 with an effective dateof 16 January 2008.


























14.He provided email from Colonel T____, Guam ARNG to NGB, dated27 November 2016 and 28 November 2016; wherein stating:•the applicant was selected by the Department of the Army Promotion Board that adjourned on 4 April 2003•by the time he was selected for promotion in 2003 he had already exceeded the 7 years maximum time in grade as a captain•although he was not Military Occupational Special/Branch qualified for the position, he was assigned to a Guam ARNG paragraph and line authorized grade of major/O-4 effective 10 January 2003•he was later transferred to a branch immaterial position•based on this information, it would seem that his Promotion Eligibility Date and the effective date of promotion should be no earlier than 4 April 2003•it appears that a request for his federal recognition was not processed by the Guam ARNG until November 2003, which may have contributed to the delay of federal recognition in the grade of major•regardless, based on the Department of the Army Notice of Eligibility memorandum dated 7 August 2003 it appears that the 11 January 2005 date federal recognition was extended should be his effective date of rank and not14 July 2002•alternatively, (Applicant) could have been granted a promotion eligibility and effective date of 4 April 2003 based on the approval date for the Department of the Army Promotion Board which recommended him for promotion15.On 7 December 2016 NGB provided an Advisory Opinion; wherein stating:a.Army Regulation 135-155, paragraph 4-21(e) states that if an officer selected by a mandatory promotion board has a maximum time in grade 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. 

b.(Applicant) could have been granted an effective date of 4 April 2003 base on theapproval date for the Department of the Army Promotion Board which recommended him for promotion and therefore it is recommended that he be granted this date. 

c.Guam ARNG concurs with this recommendation.

17.On 7 March 2017 the ABCMR determined the evidence presented was sufficient towarrant a recommendation for partial relief.  As a result, the Board recommends that allDepartment of the Army and the ARNG records of the applicant be corrected by issuingappropriate documents and orders to correct his effective date of promotion to major
and his promotion eligibility date (date of rank) to 9 October 2004.  The Board further determined: 

a.The NGB and Guam ARNG advisory opinions failed to address the delay in theapplicant's promotion directed by the Adjutant General, Guam National Guard. 

b.The evidence of record shows an officer is promoted after selection if allqualifications 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 major/O-4 duty position) was resolved and he met all the promotion eligibility requirements when the Guam ARNG issued order promoting him to major/O-4 effective and with date of rank of 9 October 2004. 

18.Guam National Guard orders 080-01, dated 21 March 2017, amended previousorders 328-02 dated 22 November 2004 changing his effective date of promotion from11 January 2005 to 9 October 2004.

19.NGB special orders number 86, dated 26 April 2017, amended NGB special orders12 AR, dated 11 January 2005 to change his effective date of promotion from11 January 2005 to 9 October 2005 and to change his promotion eligibility date (date ofrank) from 14 July 2002 to 9 October 2004.

20.He retired from the ARNG on 31 May 2017.  His DD Form 214 (Certificate ofRelease or Discharge from Active Duty) shows type of separation as "Retirement" andnarrative reason for separation as "Maximum Service or Time in Grade."  He had totalof 24 years 11 months and 19 days of active service.

BOARD DISCUSSION: 

After reviewing the application, the supporting documents, the records, applicable regulations, and the facts above, the Board found that relief is warranted as recommended in the Board Determination and Recommendation below. The Board noted the 2003 DA Promotion Board, which recommended the applicant for major, was approved on 4 April 2003 and that the applicant was serving in an O-4 / Major assignment at the time. In light of the requirements of Army Regulation 135-155 and the National Guard Bureau and Guam Army National Guard Advisory opinions, the Board determined a preponderance of evidence supports granting the requested relief.


BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

:XXX XXX :XX GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

: : : DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 


The evidence presented demonstrated the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are sufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20160012138 on 7 March 2017 to show that applicant’s effective date of promotion to Major and promotion eligibility date as 4 April 2003.


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. 

ADMINISTRATIVE NOTE(S):  not applicable. 

//NOTHING FOLLOWS//