RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 January 2008
	DOCKET NUMBER:  AR20070002975 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Deyon D. Battle

Analyst


The following members, a quorum, were present:


Mr. Gerald J. Purcell

Chairperson

Mr. Donald L. Lewy

Member

Mr. David  W. Tucker

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 adjustment of her date of rank from 2 September 2005 to 12 September 2001, with all pay and allowance, so that she can be competitive with her fellow Soldiers.  She further requests that she receive all back pay for her promotion to first lieutenant.

2.  The applicant states that she was commissioned from state Officer Candidate School on 12 September 2001 and that she executed her oath of office.  She states that her appointment packet was forwarded to the Chief, National Guard Bureau on the same day.  She states that she suffered an extended lapse in time to get her security clearance which was granted on 2 February 2005 whereby the Inspector General got involved and aided in it being granted.  She states that due to the lack of a security clearance, she did not complete her Officer Basic Course (OBC) until 1 September 2005.

3.  The applicant provides in support of her application copies of separation orders dated 3 May 2006; promotion orders dated 10 May 2006; Promotion orders dated 10 November 2005; a copy of a request for extension of her Federal recognition date dated 28 February 2006; promotion orders dated 10 May 2006; a recommendation for promotion; a letter of recommendation dated 5 November 2005; a Service School Academic Evaluation Report dated 1 September 2005; an Application for Federal Recognition dated 5 August 2001; appointment orders dated 2 November 2001; appointment orders dated 3 October 2001; her Oaths of Office dated 12 September 2001; special orders dated 20 November 2006; amendment to orders dated 17 November 2006; Special Orders date 30 June 2006; special orders dated 10 May 2006; and her Report of Separation and Record of Service (NGB Form 22).

CONSIDERATION OF EVIDENCE:

1.  On 12 September 2001, the applicant executed her Oaths of Office and was appointed as a second lieutenant in the Texas Army National Guard (TXARNG).

2.  The applicant was extended Federal Recognition and promoted to the rank of first lieutenant (O-2) on 2 September 2005.   

3.  On 3 May 2006, the applicant was honorably separated from the TXARNG and she was transferred to a United States Army Reserve Troop Program Unit and assigned as a system integration officer in the grade of O-2.

4.  During the processing of this case an advisory opinion was obtained from the Chief, Personnel Division, National Guard Bureau, who opined that in accordance with Army Regulation 135-155, chapter 2, paragraph 2-8, to qualify for promotion a commissioned officer must complete the military educational requirement not later than the day before the selection board convene date.  Table 2-2 reflects that a second lieutenant must complete the resident OBC in order to be promoted to first lieutenant.  The Chief, Personnel Division stated that National Guard Regulation 600-100, chapter 8, paragraph 8-9 states that the minimum military education requirement for promotion to first lieutenant is the OBC.  The Chief, Personnel Division recommended disapproval of the applicant's request.

5.  The advisory opinion fails to address the portion of her request that pertains to awarding her back pay and allowance for her promotion to first lieutenant.

6.  On 12 September 2007, a copy of the advisory opinion was forwarded to the applicant for her information and/or possible rebuttal.

7.  On 12 October 2007, the applicant submitted a rebuttal to the advisory opinion stating that she would like to clarify her request by requesting that she receive all back pay and allowances for her promotion to first lieutenant on 2 September 2005 (while she was a member of the TXARNG) until 3 May 2006 (the date that she transferred to a United States Army Reserve Troop Program Unit).

8.  According to information obtained from the Defense Finance and Accounting Service, the applicant has been receiving pay in the grade of O-2 since 3 May 2006.

9.  National Guard Bureau (NGB) Regulation 600-100, chapter 8 establishes the policies and procedures for promotion of officers in the ARNG.  The regulation specifies that until Federal Recognition in the new rank is extended by the NGB, the individual cannot be paid for the higher rank.  The NGB has advised in similar cases such as this that recommendations for promotion must be processed through NGB staff to obtain approval of the promotion by the President, and that the approval process normally takes approximately 3 months.

DISCUSSION AND CONCLUSIONS:

1.  The question in this case is whether or not on 12 September 2001, the applicant had completed the educational requirements for promotion to O-2 in accordance with the applicable regulation.
2.  Army Regulation 135-155 provides that to qualify for promotion a commissioned officer must complete the military educational requirements not later than the day before the selection board convened date.  Table 2-2 of this regulation provides that a second lieutenant must complete the resident OBC in order to be promoted to first lieutenant.  

3.  The applicant executed her Oaths of Officer on 12 September 2001 in the rank of second lieutenant.  She did not complete the resident OBC until 1 September 2005 and in accordance with the applicable regulation, she was not eligible for promotion to first lieutenant until she completed the course.  Additionally, the applicant has not provided sufficient documentation to prove the Army was at fault in the delay of her security clearance.  Therefore, she is not entitled to correction of her records to show her date of rank to first lieutenant as 12 September 2001.

4.  In regards to the applicant's rebuttal to the advisory opinion, according to information obtained from the Defense Finance and Accounting Service, she has been receiving pay in the grade of O-2 since 3 May 2006.  However, she was promoted to the grade of O-2 on 2 September 2005, while she was a member of the TXARNG.  NGB Regulation 600-100, chapter 8 specifies that until Federal Recognition in the new rank is extended by the NGB, the individual cannot be paid for the higher rank.  The NGB extended her Federal Recognition on the effective date of her promotion; therefore, she is entitled to back pay and allowances in the grade of O-2 from the date of her promotion on 2 September 2005.  

5.  In view of the foregoing it would now be in the interest of justice to correct the applicant's records as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__GJP__  __DLL__  __DWT___  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 National Guard and Department of the Army records of the individual concerned be corrected by showing she was promoted to the grade of O-2 as shown in special order number 124 AR dated 10 May 2006 and provide all back pay and allowances to which she is entitled from 2 September 2005 through her separation from the TXARNG on 3 May 2006.

2.  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 adjustment of her date of rank to 12 September 2001 with all pay and allowances.  




___Gerald J. Purcell      __
          CHAIRPERSON




INDEX

CASE ID
AR20070002975
SUFFIX

RECON

DATE BOARDED
20080124
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.  14
102.0000/OFFICER APPOINTMENT
2.  21
102.0700/DATE OF RANK
3.

4.

5.

6.