PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 4 September 2003
         DOCKET NUMBER: AR2002083120


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. Frank C. Jones		Member
Ms. Barbara J. Ellis		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests that his date of rank (DOR) for promotion to the rank of first lieutenant (1LT) be adjusted to 23 September 2000 and that he be entitled to all back pay and allowances from that date.

3. The applicant states that prior to his being commissioned, he expressed to his recruiter that he had over 10 years of honorable military service and over 5 years of practice as an occupational therapist and that he did not want to join the Army Reserve as a second lieutenant. His recruiter then informed him that he had been given 1 year, 10 months and 21 days of constructive credit and would be promoted to the rank of 1LT within 39 days, which would equal 2 years time in grade. Because it was an administrative process, it did not need to be expressed in a written contract. He goes on to state that it was never explained to him that he needed to complete the officer basic course (OBC) and obtain a security clearance in order to get promoted. Consequently, he did not get promoted to 1LT until 29 October 2002. He continues by stating that he has sought the assistance of both his commander and the Inspector General (IG) to no avail and the delay in his promotion has caused a financial burden on him and his family.

4. The applicant’s military records show that he initially enlisted in the Navy and served from 24 June 1985 to 12 August 1985. He enlisted in the Marine Corps on 14 April 1986 and served until 18 January 1990. He then served in the Air National Guard from 18 January 1991 to 17 January 1997. The highest rank he achieved was the pay grade of E-5.

5. The applicant received a Bachelor of Science degree in Occupational Therapy in 1995.

6. On 4 June 2000, he applied for appointment as a Reserve commissioned officer in the medical specialist corps branch (SP). His application was approved and he accepted a Reserve commission as a United States Army Reserve (USAR) second lieutenant on 17 July 2000, with 1 year, 10 months and 21 days of constructive credit for promotion purposes.

7. He attended the Army Medical Department (AMEDD) officer basic course on 4 June 2001 and completed the course on 15 June 2001 and his security investigation was completed on 6 November 2001.

8. On 29 October 2002, officials at the Army Reserve Personnel Command (ARPERSCOM) created a memorandum for record, which indicates the applicant could not be promoted on his promotion eligibility date because all promotion qualifications were not met. However, he was promoted to the rank of 1LT on 25 October 2002, in accordance with paragraph 4-8, of Army Regulation 135-155, when all requirements were met. He was granted a security clearance on 25 October 2002.
9. Army Regulation 135-155 provides promotion eligibility and qualification requirements for promotion of USAR officers. It provides, in pertinent part,
that an officer found not fully qualified for promotion to 1LT, who was retained in an active status, may be promoted if later determined to be qualified. The promotion will not be earlier than the date the officer is determined qualified for promotion. A memorandum for record will be prepared to explain the later promotion date that will be placed in the officer's Official Military Personnel File (OMPF).

10. That regulation also provides that an officer in the rank of second lieutenant will be considered without review by a selection board. The officer's records will be screened to determine eligibility for promotion to the next higher grade far enough in advance to permit promotion on the date promotion service is completed. Promotion to the rank of 1LT requires 2 years in the grade of second lieutenant and completion of the resident officer basic course (OBC). It is noted that not all officers (selected categories) are required to complete the OBC. Promotion authorities will ensure that a favorable security screening is completed before announcing a promotion. Screening consists of a review of the individual's military personnel records jacket or personnel electronic management system to ensure that derogatory or unfavorable suitability information is not contained therein. If the results are favorable, final promotion action may proceed.

11. Army Regulation 380-67 implements the Department of Defense (DOD) and Department of the Army Personnel Security Program. It provides, in pertinent part, that a DOD National Agency Check and written inquiries (DNACI) shall be conducted on each commissioned, warrant officer, cadet, midshipman, and Reserve Officers Training Candidate, at the time of or before appointment. A secret clearance is a condition of appointment. However, health professionals, chaplains and attorneys may be commissioned in the Reserve Components prior to completion of a DNACI provided that they agree in writing that, if the results of the investigation are unfavorable, he or she will be subject to discharge if found ineligible to hold a commission.

CONCLUSIONS:

1. While the applicable regulation provides that in order to be promoted from the rank of second lieutenant to 1LT, individuals must complete OBC, the Board is not convinced that the applicant was made aware at the time he accepted his appointment, that he would first have to attend OBC before he could be promoted and that it may be a delay of almost a year before he could attend.

2. The Board also notes that even after having his promotion delayed for a year to attend OBC, it was further delayed an additional 16 months until his security clearance was granted. When his constructive credit is factored in, it took him 3 years, 1 month and 29 days to be promoted to the rank of first lieutenant, vice the normal 24 months in grade it should have taken.

3. Therefore, the Board is inclined to believe that he was led to believe that he would be promoted to the rank of 1LT when he attained 2 years in grade and that it was a simple administrative process. While the recruiter may or may not have known of the requirement to complete OBC before promotion to 1LT, it is not reasonable that the applicant would have agreed to such a delay in promotion without specific dates to attend OBC or to obtain a clearance.

4. In regards to his attendance at the OBC, at the very minimum, he should have been scheduled to attend OBC upon his appointment, so that he would have met the education requirements when they arrived.

5. In regards to the security clearance requirement, the Board finds that once he was accepted for appointment, unless derogatory information was subsequently discovered that would make him ineligible for commissioning, for all intents and purposes, as outlined in the applicable regulation, he met the security clearance requirements for promotion, otherwise, he should have been discharged.

6. The Board finds in the applicant's case that his promotion was unjustly delayed through no fault of his own and that his promotion to the rank of 1LT should be backdated effective the date he attained 24 months time in grade, with entitlements to all back pay and allowances from that date.

7. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION: That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was promoted to the rank of 1LT upon attaining 2 years in grade as a second lieutenant and that he is entitled to all back pay and allowances from that date.

BOARD VOTE:

___fcj___ ___bje___ __rvo___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

                  _Raymond V. O’Connor, Jr._
                  CHAIRPERSON

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INDEX

CASE ID	AR2002083120
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/09/04
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 315	131.0500/DOR
2.
3.
4.
5.
6.