RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 October 2005
      DOCKET NUMBER:  AR20050002201


      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. John J. Wendland, Jr.         |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Allen L. Raub                 |     |Member               |
|     |Ms. Linda D. Simmons              |     |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, in effect, that his National Guard Federal
Recognition order (initial appointment) in the grade of second lieutenant
be corrected to show the effective date 7 August 1999, promotion to grade
of first lieutenant effective
7 August 2001, and all pay and allowances due him based on these
corrections.

2.  The applicant states, in effect, that he was initially appointed as a
second lieutenant on 7 August 1999 in the Texas Army National Guard
(TXARNG); however, through no fault of his own, he did not receive
permanent Federal Recognition from the National Guard Bureau until 1
December 2001.

3.  The applicant provides a copy of the initial NGB Form 89 (Proceedings
of a Federal Recognition Examining Board), dated 5 August 1999; the current
NGB Form 89; dated 28 November 2001; a NGB Form 337 (Oaths of Office),
dated
7 August 1999; a NGB Form 337, dated 1 December 2001; and National Guard
Bureau Federal Recognition, Special Order Number 357 AR, dated
20 December 2001.

CONSIDERATION OF EVIDENCE:

1.  On 5 August 1999, a Federal Recognition Board was held by the TXARNG to
determine if the applicant was qualified to be awarded Federal Recognition.
 The proceedings indicated that the applicant was satisfactory in his
physical qualifications, moral character, and general qualifications.

2.  On 7 August 1999, the applicant executed an Oath of Office as a second
lieutenant in the TXARNG and was granted temporary Federal Recognition.

3.  There is no evidence that the applicant received permanent Federal
Recognition as a second lieutenant from the National Guard Bureau within
the six month period required by National Guard/Army regulations.  As a
result, his temporary Federal Recognition expired.

4.  On 28 November 2001, a second Federal Recognition Board was held by the
TXARNG to determine if the applicant was qualified to be awarded Federal
Recognition.  The proceedings indicated that the applicant was satisfactory
in his physical qualifications, moral character, and general
qualifications.

5.  On 1 December 2001, the applicant executed a second Oath of Office as a
second lieutenant in the TXARNG and was granted temporary Federal
Recognition.
6.  National Guard Bureau Federal Recognition, Special Orders Number 357
AR, dated 20 December 2001, awarded the applicant permanent Federal
Recognition for initial appointment to the grade of second lieutenant,
effective
1 December 2001.

7.  The applicant's records contain a DA Form 1059 (Service School Academic
Evaluation Report), dated 17 December 2004, which shows that the applicant
successfully completed the Military Intelligence Officer Basic Course on
17 December 2004.

8.  On 19 April 2005, the TXARNG issued Orders 109-1073, promoting the
applicant to the grade of first lieutenant, with an effective date of
17 December 2004.

9.  National Guard Bureau Federal Recognition, Special Orders Number 151
AR, dated 13 May 2005, promoted the applicant to the grade of first
lieutenant, effective 17 December 2004.

10.  In connection with the processing of this case, an advisory opinion
was obtained from the Chief, Personnel Division, National Guard Bureau,
Arlington, Virginia, which recommended partial approval of the applicant's
request.  The advisory opinion recommended adjustment of the applicant's
initial appointment date as a second lieutenant to 7 August 1999.  However,
the advisory opinion recommended disapproval of the request for adjustment
to the applicant's promotion date to first lieutenant to 7 August 2001 and
also recommended disapproval of any associated back pay and allowances.

11.  The applicant was provided a copy of the Chief, Personnel Division,
National Guard Bureau advisory opinion in order to have the opportunity to
reply to its contents.  The applicant responded indicating that he believes
his promotion date to the grade of first lieutenant should be 7 August
2001.  He cites Army Regulation 135-155 (Promotion of Commissioned Officers
and Warrants Officers Other Than General Officers), Table 2-2 (Military
Educational Requirements Commissioned Officers, Other Than Commissioned
Warrant Officers Grade), Note 1, and states that he met the military
educational requirement because he was enrolled in an Officer Basic Course
in 2001.  He also references other Army National Guard officers as relevant
examples to his case.

12.  A review of the applicant's Official Military Personnel File (OMPF)
failed to show any evidence that he was enrolled in and completed the
Officer Basic Course in 2001.
13.  National Guard Regulation 600-100 (Commissioned Officer - 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.

14.  National Guard Regulation 600-100, paragraph 2-2 states that the
effective date of Federal Recognition for original appointment is that date
on which the commissioned officer executes the oath of office in the State.
 Paragraph 2-3a states that temporary Federal Recognition upon initial
appointment establishes the authorized grade to be used by all officers in
their federally recognized status.

15.  National Guard Regulation 600-100, paragraph 2-13 states that
temporary Federal Recognition may be extended to an officer who has been
appointed in the ARNG of a State and found to be qualified by a Federal
Recognition Board pending final determination of eligibility and
appointment as a Reserve commissioned officer of the Army.  If not sooner
withdrawn or replaced by the granting of permanent Federal Recognition,
temporary Federal Recognition will automatically terminate six months after
the effective date of State appointment.  However, should the initial
period of temporary Federal Recognition expire due to administrative
processing delays, through no fault of the member, a subsequent Federal
Recognition Board should be convened to consider the request again and
grant another new period of temporary Federal Recognition if warranted.

16.  National Guard Regulation 600-100, paragraph 10-15b states that
temporary Federal Recognition may be granted by a Federal Recognition Board
to those eligible when the board finds that the member has successfully
passed the examination prescribed herein, has subscribed to the oath of
office, and has been appointed by a State order for assignment to a
position vacancy in a federally recognized unit of the ARNG.  The Federal
Recognition Board will forward the NGB Form 89 and allied documents to The
Adjutant General.  When the member is favorably recommended, The Adjutant
General will endorse the packet to the NGB.  If the member meets the
qualifications and requirements for Federal Recognition, the Chief, NGB
extends permanent Federal Recognition to the member in the grade and branch
in which the member is qualified.

17.  Paragraph 2-1 of Army Regulation 135-155 states, in pertinent part,
that an officer in the grade of second lieutenant will be considered for
promotion without review by a selection board.  The officer's records will
be screened to determined 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 or table 2-3 of this
regulation.

18.  Table 2-1 (Time in Grade Requirements Commissioned Officers, Other
Than Commissioned Warrant Officers) of Army Regulation 135-155 states that
the minimum time in grade as a second lieutenant for promotion to first
lieutenant is 2 years.

19.  Table 2-2 of Army Regulation 135-155 states, in pertinent part, that
second lieutenants must complete a resident officer basic course to be
eligible for promotion to first lieutenant.  Note 1 of this table applies
to promotion from the grade of second lieutenant to first lieutenant and
references paragraph 2-8b(1).  Paragraph 2-8b(1) states, "An officer
delayed to obtain a graduate degree and assigned to the Control Group
(Officer Active Duty Obligor) (OADO) or under administrative control of the
Control Group (OADO) with concurrent assignment to a Reserve component (RC)
unit will be determined educationally qualified for promotion to 1LT or CPT
during the period of this assignment".

DISCUSSION AND CONCLUSIONS:

1.  Records show that the applicant was granted temporary Federal
Recognition effective 7 August 1999 upon his initial appointment in the
TXARNG as a second lieutenant.  At that time, his Federal Recognition
packet and allied documents were forwarded to the Adjutant General of the
State of Texas for endorsement to the National Guard Bureau for extension
of permanent Federal Recognition.  Through no fault of the applicant, the
Federal Recognition packet was either lost or misplaced, as it was not
acted upon by the National Guard Bureau.

2.  Subsequently, the applicant's Federal Recognition packet was considered
by another TXARNG Federal Recognition Board.  Based on the recommendations
of the second TXARNG Federal Recognition Board, the National Guard Bureau
issued orders awarding the applicant permanent Federal Recognition
effective
1 December 2001.





3.  From the foregoing, it is clear that an administrative error denied the
applicant Federal Recognition effective 7 August 1999.  Therefore, based on
applicable law and regulation, the applicant is entitled to have Federal
Recognition Order Number 357 AR amended to show the effective date of
permanent Federal Recognition in the grade of second lieutenant is 7 August
1999.

4.  The applicant contends that, based on a 7 August 1999 effective date,
he was eligible for promotion to first lieutenant on 7 August 2001.  He
also contends that he met the military educational requirement at that time
based upon his enrollment in the Officer Basic Course on 9 November 2001.
However, the applicant provides no documentary evidence and there is no
evidence of records which shows he was enrolled in and completed the
Officer Basic Course in 2001.

5.  The applicant further contends that, AR 135-155, Table 2-2, provides
the authority for his promotion to first lieutenant because he was enrolled
in (emphasis added) an Officer Basic Course.  He cites the last sentence of
Note 1 in support of his claim which states, "Officers enrolled in a
resident basic course, who are otherwise eligible, will also be considered
to have satisfied the education requirement for promotion".  However, Note
1 references paragraph 2-8b(1) of the regulation and that paragraph (and
therefore, the corresponding footnote) specifically applies to Officer
Active Duty Obligor (OADO) officers.  The Army regulation defines OADO as
"An officer appointed in the U.S. Army Reserve from the Reserve Officer
Training Corps program, or under programs monitored by the Chief of
Chaplains, The Judge Advocate General, or The Surgeon General who is
obliged to serve on active duty or active duty for training and does not
enter on active duty at the time of the appointment".

6.  Evidence of records fails to show that the applicant is an OADO
officer. Consequently, Note 1 of Table 2-2 of Army Regulation 135-155 does
not apply to the applicant in this case.  Therefore, he would not be
eligible for promotion to the grade of first lieutenant based upon
enrollment in an Officer Basic Course.

7.  Evidence of records shows that the applicant completed the Officer
Basic Course on 17 December 2004.  Based on the fact that the applicant
successfully completed the Military Intelligence Officer Basic Course on 17
December 2004 and met the time-in grade requirement for promotion to the
grade of first lieutenant, the applicant was properly awarded permanent
Federal Recognition for promotion to first lieutenant, with an effective
date of 17 December 2004.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__MHM__  __ALR__  __LDS___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by amending Federal Recognition Special Orders
Number 357 AR, dated
20 December 2001, to show that he was extended Federal Recognition
effective 7 August 1999 in the grade of second lieutenant.

2.  The Board further recommends that, based upon the 7 August 1999
effective date, the applicant be awarded any back pay and allowances he may
be entitled to as a commissioned officer serving in the grade of second
lieutenant.

3.  The Board further determined that 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 of the applicant to the grade of first lieutenant, effective 7
August 2001, and the request for any associated back pay and allowances.




                                  ____MELVIN H. MEYER______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050002201                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051027                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT PARTIAL                           |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |125.0200.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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