RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           23 February 2005
      DOCKET NUMBER:  AR20040003057


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Hubert O. Fry                 |     |Chairperson          |
|     |Ms. Marla J. Troup                |     |Member               |
|     |Mr. Peter B. Fisher               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his date of rank to first lieutenant (1LT)
be adjusted.

2.  The applicant states that his recruiter told him that the Officer Basic
Course (OBC) did not have to be completed for 2 years and that
noncompletion of OBC would not affect his promotion to 1LT.

3.  The applicant provides his oath of office as a second lieutenant (2LT);
orders appointing him a 2LT in the Army National Guard (ARNG); a DA Form
5074-1 (Record of Award of Entry Grade Credit (Health Services Officers));
a request for Federal Recognition packet; initial appointment Federal
Recognition orders; a DA Form 1059 (Service School Academic Evaluation
Report); his OBC diploma; orders promoting him to 1LT; a memorandum dated
26 April 2004; his promotion Federal Recognition orders; and a memorandum
dated 18 May 2004, Subject:  Promotion as a Reserve Commissioned Officer of
the Army.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed a 2LT in the ARNG, Army Medical Specialist
Corps, effective 15 March 2001.  He had been awarded 1 year, 2 months, and
   29 days of constructive credit towards his entry grade.

2.  National Guard Bureau (NGB) Special Orders Number 161 AR dated 18 June
2001 granted the applicant Federal Recognition effective 15 March 2001 with
a date of rank of 16 December 1999 based on constructive credit.

3.  The applicant completed OBC on 17 January 2003.

4.  Commonwealth of Pennsylvania Department of Military and Veterans
Affairs Orders 345-1001 dated 11 December 2003 promoted the applicant to
1LT effective 11 December 2003.  The date of rank was shown on the orders
as "Not applicable."  The Pennsylvania ARNG apparently requested authority
to promote the applicant after these orders were published.  On 26 April
2004, NGB approved their request for an exception to policy (exception to
the 42-month promotion policy).

5.  NGB Special Orders Number 124 AR dated 18 May 2004 granted the
applicant Federal Recognition as a 1LT effective 11 December 2003.

6.  NGB memorandum dated 18 May 2004 promoted the applicant to 1LT as a
Reserve Commissioned Officer of the Army with an effective date of 11
December 2003 and a date of rank of 11 December 2003.

7.  In the processing of this case, an advisory opinion was obtained from
the Personnel Division, NGB.  That office initially (on 2 November 2004)
misunderstood the applicant's request to concern his 2LT date of rank and
recommended disapproval of his request.

8.  The 2 November 2004 advisory opinion was provided to the applicant for
comment or rebuttal.  He responded that since his 2LT date of rank was
         16 December 1999 then his 1LT date of rank should be 16 December
2001.

9.  On 7 December 2004, the Personnel Division, NGB noted its initial
erroneous reading of the applicant's request and changed their advisory
opinion to show it recommended approval of his request for his date of rank
and Federal Recognition to be adjusted from 11 December 2003 to 15 March
2001.

10.  A copy of the revised advisory opinion was provided to the applicant
for comment.  He concurred with the advisory opinion.

11.  Army Regulation 135-155 (Promotion of Commissioned Officers and
Warrant Officers other than General Officers), paragraph 2-1 states that an
officer in the grade of 2LT will be considered for promotion 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 the promotion service is completed in
compliance with table 2-1 of this regulation.

12.  Army Regulation 135-155, table 2-1 states that the minimum time in
grade as a 2LT for promotion to 1LT is 2 years.

13.  Army Regulation 135-155, table 2-2 states that 2LTs must complete a
resident OBC to be eligible for promotion to 1LT.

14.  National Guard Regulation 600-100 (Commissioned Officers – Federal
Recognition and Related Personnel Actions) provides procedures for
processing all applications for Federal Recognition.  Paragraph 2-1 states
that commissioned officers of the ARNG are appointed by the several States
under Article 1, Section  8 of the U. S. Constitution.  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.  Officers who are federally recognized in a particular grade
and branch shall be tendered an appointment in the same grade as Reserve
commissioned officers of the Army with assignment to the Army National
Guard of the United States if they have not already accepted such
appointment.

15.  National Guard Regulation 600-100, chapter 8 states that the promotion
of officers in the ARNG is a function of the State.  A commissioned offices
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 requirements prescribed
in this chapter (which include being assigned to a position in the higher
grade).

16.  Title 10, U. S. Code, section 12207(e) states that constructive
service credited an officer under subsection (b) (education) shall be used
only for determining the officer's initial grade, rank in grade, and
service in grade for promotion eligibility.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was appointed a 2LT in the ARNG in the Army Medical
Specialist Corps on 15 March 2001.  Because he had been awarded 1 year, 2
months, and 29 days of constructive credit, his date of rank was determined
to be 16 December 1999.

2.  It appears the applicant was assigned to a 1LT position effective 11
December 2003 and he was promoted to 1LT effective that date.  That was the
date he was granted Federal Recognition for his promotion to 1LT.  However,
his promotion eligibility date for 1LT was 2 years after his 2LT date of
rank; i.e., 16 December 2001.  His Federal Recognition orders failed to
recognize his 1LT date of rank adjusted for his constructive credit.

3.  Notwithstanding the advisory opinion dated 7 December 2004, the
applicant's Federal Recognition orders for his promotion to 1LT should be
amended to show his date of rank to be 16 December 2001.

BOARD VOTE:

__hof___  __mjt___  __pbf___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by:

     a.  amending Federal Recognition Order Number 124 AR dated 18 May
2004 to show that he was extended Federal Recognition as a 1LT effective
   11 December 2003 with a date of rank of 16 December 2001; and

     b.  amending any other orders that may be required.




            ___Hubert O. Fry______
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040003057                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050223                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |125.02                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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