IN THE CASE OF:	  

	BOARD DATE:	  15 May 2008

	DOCKET NUMBER:  AR20070010983 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his records to adjust his date of rank (DOR) to second lieutenant (2LT) from 23 July 2004 to 27 June 2004; his DOR to 1st Lieutenant (1LT) from 28 November 2006 to 27 June 2006; and, in effect, restoration of back pay and allowances as a result of this correction.

2.  The applicant states that upon graduation from Officer Candidate School (OCS), he was commissioned in the New Jersey Army National Guard (NJARNG), on 23 July 2004, later than his classmates who were commissioned on 27 June 2004.  He sought help from a senior officer to correct the appointment error, but correction was not made.  He subsequently transferred to the U.S. Army Reserve (USAR) and was promoted to 1LT on 28 November 2006.  He attempted to submit an application to correct this error, but experienced difficulties with the electronic form.  He further adds that he was told by the National Guard Bureau that the error occurred due to the absence of his Scholastic Aptitude Test (SAT) scores in his record.  He concludes that the incorrect DORs impact his upcoming June 2008 promotion to captain (CPT). 

3.  The applicant provides a copy of his June 2004 SAT score report in support of his application:

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  With prior enlisted service in the NJARNG, the applicant submitted an application for appointment as a commissioned officer in the NJARNG, on 23 July 2004.

3.  On 23 July 2004, a Federal Recognition Board was held by the NJARNG 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.  

4.  On 23 July 2004, the applicant accepted an appointment as a 2LT in the NJARNG and executed an Oath of Office on the same date.  He was subsequently assigned to Company A, 50th Support Battalion, Teaneck, New Jersey.

5.  On 4 August 2004, National Guard Bureau Federal Recognition Orders Number 192 AR, awarded the applicant permanent Federal recognition for initial appointment to the rank of 2LT in the NJARNG, effective 23 July 2004.

6.  On 17 December 2004, the applicant completed the Quartermaster Officer Basic Course.

7.  On 28 January 2005, the applicant was ordered to active duty as a member of his Reserve unit in support of Operation Iraqi Freedom and subsequently served in Iraq from 28 March 2005 to 12 December 2005.  He was honorably released from active duty and transferred to ARNG status on 24 June 2006.

8.  On 13 July 2006, Joint Forces Headquarters New Jersey, Fort Dix, New Jersey, published Orders 194-022, honorably releasing the applicant from the NJARNG and transferring him to the USAR.  He was further assigned to the 1st Simulation Exercise Group, 1st Brigade, 78th Division, Edison, New Jersey. 

9.  On 9 August 2006, National Guard Bureau Federal Recognition Orders Number 202 AR, awarded the applicant permanent Federal recognition for his transfer from the NJARNG to the USAR, in the rank of 2LT, effective 7 July 2006.

10.  On 6 December 2006, U.S. Army Human Resources Command (AHRC), St. Louis, Missouri, published Orders B-12-608856, announcing the applicant's promotion to 1LT with a DOR and effective date of 28 November 2006. 

11.  On 25 May 2007, the applicant completed the Quartermaster Captains Career Course at Fort Lee, Virginia.

12.  Two advisory opinions were obtained in the processing of this case:

	a.  on 18 September 2007, from the USAR:

		1.  the Chief, Special Actions Branch, Office of Promotions, Reserve Components, AHRC-St. Louis, Missouri, stated that the applicant was commissioned as a 2LT in the NJARNG; therefore, his request to have his appointment date backdated to 27 June 2004, should be addressed to the National Guard Bureau.  The Chief further remarked on the applicant's promotion to 1LT, stating that the applicant was selected for promotion to 1LT by the 2006 Administrative Review Process.  In accordance with law, the earliest DOR a 2LT is eligible to be promoted to 1LT is the approved date of the list that contains his name.  The applicant's name was on the list that was approved on 28 November 2006; therefore, 28 November 2006, is his correct DOR.  Based on his DOR, he will not be in the zone for promotion consideration to CPT by the 2008 Department of the Army Reserve Components Selection Board (RCSB); and

		2.  the applicant was furnished a copy of this advisory opinion on 26 October 2007; however, he did not respond.

	b.  On 10 March 2008, from the National Guard Bureau:

		1.  the Chief, Personnel Division, National Guard Bureau, Arlington, Virginia, recommended disapproval of the applicant's request to adjust his initial appointment date as a 2LT from 23 July 2004 to 27 June 2004.  The Chief further stated that The New Jersey Adjutant General approved the Federal recognition examining board proceedings for the officer to be initially appointed effective 23 July 2004 and the officer executed his oath of office, also on 23 July 2004.  The Chief also stated that he could not make a recommendation regarding the applicant's promotion to 1LT since the applicant was transferred to the USAR and that in accordance with Army Regulation 135-188 (Promotion of Commissioned Officers and warrant Officers Other Than General Officers), he met the requirements for promotion to 1LT on 23 July 2006; and

		2.  the applicant was furnished a copy of this advisory opinion on 17 March 2008, but did not initially respond within the allotted time.  However, on 28 April 2008, the applicant submitted a rebuttal statement to the two advisory opinions.  He disagreed with both opinions and argued that during the first few months at OCS, he and other candidates were asked to sign several documents without dates and that the he did not place the date "23 July 2004" on his oath of office.  The applicant also adds that with respect to his 1LT promotion, he met the requirements for promotion on 23 July 2006 and that he transferred to the USAR on 7 July 2006.  During his transfer, he inquired about his promotion with his chain of command, but was given conflicting information.  He concludes that he needs his DORs corrected prior to June 2008, the date his CPT Board convenes.

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 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.

16.  Paragraph 2-1 of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) 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.

17.  Table 2-1 of Army Regulation 135-155 states that the minimum time in grade as a second lieutenant for promotion to first lieutenant is 2 years.  Additionally, Table 2-2 of Army Regulation 135-155 states, in pertinent part, that 2LTs must complete a resident officer basic course to be eligible for promotion to 1LT.
18.  Paragraph 2-2 of the Reserve Officer Personnel Management Act (ROPMA) states that a 2LT will be considered for promotion to 1LT prior to reaching his/her 24 months of commissioned service so that he/she can be promoted timely upon reaching the required time in service.  However, the 2LT must be qualified in all other requirements in accordance with Army Regulation 135-155.  A 2LT who is found not qualified for promotion within 24 months of commissioned service, must be retained for at least 6 months from the date he or she should be promoted if found qualified.  Should the officer become qualified at any time during the period of retention, the officer can be promoted to 1LT.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his 2LT DOR should be corrected from 23 July 2004 to 27 June 2004 and to 1LT from 28 November 2006 to 27 June 2006, with entitlement to back pay as a result of this correction.

2.  With respect to the applicant's initial appointment to 2LT, the evidence of record shows that the NJARNG held a Federal Recognition Board on 23 July 2004.  The applicant accepted an appointment as a 2LT and executed an oath of office on 23 July 2004.  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.  Therefore, the applicant's initial appointment date and DOR as a 2LT is 23 July 2004, and requires no further correction.

3.  With respect to the applicant's promotion to 1LT, the evidence of record shows that the applicant voluntarily transferred from the NJARNG to the USAR and was extended Federal recognition for this transfer, effective 7 July 2006.  By doing so, he was no longer under the ARNG promotion system.  He now fell under the USAR promotion system and was subsequently considered by the first USAR administrative board that convened during the period 1 September 2006 to 8 September 2006 and was approved on 28 November 2006.

4.  By law, the earliest DOR and effective date of promotion from 2LT to 1LT the applicant could have, is the approval date of the list that contained his name.  The applicant's name was on the list that was approved on 28 November 2006; therefore, 28 November 2006 is his correct DOR and requires no further correction.

5.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement in this case. Therefore, he is not entitled to relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



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       _    ______   ___
       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.
ABCMR Record of Proceedings (cont)                                         AR20080006200



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ABCMR Record of Proceedings (cont)                                         AR20070010983



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